      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-12-00776-CR
                                     NO. 03-12-00777-CR
                                     NO. 03-12-00778-CR



                               Shawn Thomas King, Appellant

                                               v.

                                 The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
       NOS. 68463, 69564, 70272 HONORABLE JOE CARROLL, JUDGE PRESIDING



                           MEMORANDUM OPINION


              Appellant Shawn Thomas King appeals the trial court’s judgments (1) adjudicating

him guilty of burglary of a habitation, see Tex. Penal Code Ann. § 30.02 (West 2011) (our

cause number 03-12-00776-CR), and (2) convicting him of two separate offenses of aggravated

robbery with a deadly weapon, see Tex. Penal Code Ann. § 29.03 (West 2011) (our cause

numbers 03-12-00777-CR and 03-12-00778-CR). In two issues, appellant argues, first, that the

sentences he received for the aggravated robbery convictions amount to cruel and unusual

punishment and, second, that government code section 508.145(d)(1), which requires that he serve

a mandatory sentence of the lesser of one-half the sentence imposed or thirty years before parole

eligibility, violates the separation of powers provision of article II, section one of the Texas
Constitution. See Tex. Const. art. II, § 1; Tex. Gov’t Code Ann. § 508.145(d)(1) (West 2012).1 We

will affirm.


                                          BACKGROUND

                In September 2011, appellant pleaded guilty to the second-degree felony offense of

burglary of a habitation. The trial court entered an order of deferred adjudication and placed

appellant on community supervision for a period of ten years. In August 2012, the State filed a

motion to adjudicate on the ground that appellant had violated the terms and conditions of his

community supervision by, among other things, committing aggravated robbery with a deadly

weapon on January 26, 2012. In separate cause numbers, appellant was charged by indictment with

the offense of aggravated robbery with a deadly weapon on January 26, 2012, and with committing

the same offense again on May 3, 2012. At a joint proceeding on all three causes, appellant entered

a plea of true to the allegations in the motion to adjudicate and pleaded guilty to both cases of

aggravated robbery. At a punishment hearing in November 2012, the trial court revoked appellant’s

community supervision and assessed punishment for the offense of burglary of a habitation at

20 years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice.

It also assessed punishment for each of the aggravated robbery convictions at 60 years’

imprisonment. All three sentences were ordered served concurrently. Because the judgments of

conviction for aggravated robbery included a finding that appellant used or exhibited a deadly

weapon, he is not eligible to be considered for parole until he has served thirty years of his sentence.


       1
          Because the issues on appeal in each of the three causes are identical, appellant has filed
a single brief. We will dispose of all three causes in one opinion.

                                                   2
See Tex. Gov’t Code Ann. § 508.145(d)(1). The trial court certified appellant’s right to appeal in

all three cases, and appellant perfected this appeal.


                                           DISCUSSION

               In his first issue, appellant contends that the assessment of the 60-year sentences,

coupled with the deadly-weapon findings that result in his being ineligible for parole until he has

served 30 years, constitutes cruel and unusual punishment in violation of the Eighth Amendment to

the United States Constitution because, considering contemporary national standards of decency, the

sentence is grossly disproportionate to the offense. Appellant, however, waived this complaint by

failing to object to the assessed punishment at sentencing or to raise the issue in a motion for new

trial. See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, no pet.) (“To preserve

error for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel

and unusual punishment, a defendant must present to the trial court a timely request, objection, or

motion stating the specific grounds for the ruling desired.”); see also Tex. R. App. P. 33.1(a); Curry

v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under United

States Constitution). However, even absent waiver, we conclude that appellant’s sentence did not

constitute cruel and unusual punishment.

               The Eighth Amendment to the United States Constitution prohibits cruel and unusual

punishment, including extreme sentences that are “grossly disproportionate” to the crime. Ewing

v. California, 538 U.S. 11, 23 (2003). Courts have repeatedly held that punishment falling within

the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State,

656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim.

                                                  3
App. 1973). The trial court assessed punishment at 60 years’ imprisonment for each of the offenses

of aggravated robbery, with the sentences to run concurrently. See Tex. Penal Code Ann. § 29.03.

The punishment range for this first-degree felony is five to 99 years or life and may include a fine

of up to $10,000. See id. § 12.32 (West 2011). Appellant’s sentence is within the range of

punishment for this offense. It is well established that a sentence falling within the applicable range

of punishment generally does not violate the Eighth Amendment. See e.g., Samuel v. State,

477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Williams v. State, 191 S.W.3d 242, 262 n.6 (Tex.

App.—Austin 2006, no pet.).

               A sentence falling within the applicable range of punishment might still be considered

cruel and unusual in cases involving “extreme sentences” that are “grossly disproportionate” to the

offense. Ewing, 538 U.S. at 23 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

(Kennedy, J., concurring)). Appellant first attempts to demonstrate that his sentence meets these

descriptors by citing cases involving sentences imposed on juvenile offenders. See, e.g., Graham

v. Florida, ___ U.S. ___, 130 S.Ct. 2011, 2026 (2010) (because juveniles have lessened culpability,

they are less deserving of severest punishments). Appellant’s argument fails, however, because

although he was only eighteen years old when he committed the aggravated robberies, he was not

a juvenile offender as was the sixteen-year-old defendant in Graham. Moreover, Graham involved

a sentence of life without the possibility of parole, which the Court considered extreme given the age

of the juvenile offender. Id. at 2033 (juvenile offender who did not commit homicide who receives

life sentence entitled to realistic opportunity to obtain release before end of term). In the present

case, appellant did not receive the maximum sentence and will be eligible for parole once he has



                                                  4
served half his sentence as required by the deadly-weapon finding. This Court has previously

concluded that the fact that a deadly-weapon finding requires the offender to serve half his sentence

before parole eligibility did not render a 40-year sentence grossly disproportionate. See Andrews

v. State, No. 03-98-00201-CR, 1999 WL 11190, at *1 (Tex. App.—Austin Jan. 14, 1999, pet. ref’d)

(mem. op., not designated for publication). We reach the same conclusion in the present case

involving a 60-year sentence. See Harmelin v. Michigan, 501 U.S. 957 (1991) (Eighth Amendment

has proportionality component that requires threshhold comparison of gravity of offense against

severity of sentence). Appellant committed aggravated robbery with a deadly weapon twice in a

two-month time frame. This offense carries with it the implicit threat and risk of death or serious

bodily injury. In fact, during the first of the two aggravated robberies, during which appellant and

his co-defendants went to a party in Killeen and robbed the guests at gunpoint, one of the guests was

wounded by gunshots fired by appellant’s co-defendant. In the second aggravated robbery, appellant

pulled a gun on a convenience store clerk. While the 60-year sentence is substantial, it is well below

the maximum prescribed by the legislature for first-degree felonies, even when committed by those

without a previous criminal history. See Tex. Penal Code Ann. § 12.32. And, though he must serve

half the sentence, appellant does remain eligible for parole. Under the circumstances, we cannot say

that appellant’s sentence is disproportionate to the offenses.2 We overrule appellant’s first issue.




       2
          We note also that the record before us does not contain any information regarding the
sentences assessed for similar crimes in this or other jurisdictions. See McGruder v. Puckett, 954
F.2d 313, 316 (5th Cir. 1992) (if appellate court infers that sentence is disproportionate, it must then
compare challenged sentence to sentences for similar crimes in same jurisdiction and to sentences
for same crime in other jurisdictions).

                                                   5
               In his second issue, appellant challenges the constitutionality of government code

section 508.145(d)(1), which establishes parole eligibility for inmates serving a sentence for an

offense described in article 42.12, § 3g(a) of the Code of Criminal Procedure. See Tex. Gov’t Code

Ann. § 508.145(d)(1) (West 2012). Appellant has waived this argument by failing to preserve it.

See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (defendant may not challenge

constitutionality of statute for first time on appeal). Even if preserved, however, we would reject

appellant’s argument that this statute is unconstitutional as violating the separation-of-powers

provision of article II, section one of the Texas Constitution. See Tex. Const. art. II, § 1.

               Article II, section 1 divides the powers of state government into “three distinct

departments” and confines each to “a separate body of magistery, to wit: Those which are

Legislative to one, those which are Executive to another, and those which are Judicial to another.”

Id. The section directs that “no person, or collection of persons, being of one of these departments

shall exercise any power properly attached to either of the others, except in the instances herein

expressly permitted.” Id. Article IV, section 11 of the Texas Constitution expressly provides that

“[t]he Legislature shall have authority to enact parole laws and laws that require or permit courts to

inform juries about the effect of good conduct time and eligibility for parole . . . .” Id. art. IV,

§ 11(a). Thus, this provision of the constitution expressly and specifically authorizes the legislature

to enact parole laws; in doing so, therefore, the legislature does not violate notions of separation of

powers. See Oakley v. State, 830 S.W.2d 107, 109-10 (Tex. Crim. App. 1992) (by amending

constitution to add article IV, section 11, people of State of Texas articulated will or intent that

legislature be authorized to draft laws permitting trial courts to inform juries about operation and



                                                  6
effect of parole laws). Nevertheless, appellant argues that government code section 508.145(d)(1)

“precludes the [Board of Pardons and Paroles] from exercising its powers of executive clemency at

a time of its choosing.” Essentially, appellant argues that while the legislature may have the power

to designate who is eligible for parole, this statute goes beyond that and designates when that person

might be eligible. We disagree. Section 508.145(d)(1) does not operate to usurp the Board’s

authority to determine whether or not to grant an inmate parole. Rather, it simply defines when an

inmate serving a sentence for an offense for which the judgment contains a deadly-weapon finding

is eligible to be considered for parole by the Board. Thus, section 508.145(d)(1) is a legitimate

exercise of the legislature’s express authority to “enact parole laws” and does not impermissibly

restrict the Board’s determination of whether to grant parole once an inmate becomes eligible. We

overrule appellant’s second issue.


                                          CONCLUSION

                 Having overruled appellant’s two appellate issues, we affirm the judgments

of conviction.



                                               _____________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: April 10, 2013

Do Not Publish

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