                                                                                                                   ACCEPTED
                                                                                                              13-15-00156-CR
                                                                                              THIRTEENTH COURT OF APPEALS
                                                                                                     CORPUS CHRISTI, TEXAS
                                                                                                          9/4/2015 2:51:38 PM
            FILED                                                                                            Dorian E. Ramirez
                                                                                                                        CLERK
    IN THE 13TH COURT OF APPEALS
            CORPUS CHRISTI
                                               No. 13-15-00156-CR 

              9/4/15
    DORIAN E. RAMIREZ, CLERK                          IN THE 
                     RECEIVED IN
    BY DTello                                                               13th COURT OF APPEALS
                                                                         CORPUS CHRISTI/EDINBURG, TEXAS
                                      THIRTEENTH COURT OF              APPEALS    
 2:51:38 PM
                                                                             9/4/2015
                                                                              DORIAN E. RAMIREZ
                                                 at Corpl,l.s£hristi   
             Clerk



                                              GABlER GONZALES, 

                                                  Appellant, 


                                                         v. 


                                             THE STATE OF TEXAS, 

                                                   Appellee. 



                    Appealed from the 36th Judicial District Court of San Patricio County, Texas
                                            Cause No. S-U-3069-CR                   .


                                               APPELLEE'S BRIEF 



                                                                Michael E. Welborn
                                                                District Attorney

                                                                Frank: Errico
                                                                Assistant District Attorney
                                                                Texas Bar No. 06648950
                                                                P.O. Box 1393
                                                                Sinton, Texas 78387
                                                                Tel. . (361) 364-9390
                                                                Fax (361) 364-9490

                                                                ATTORNEY FOR APPELLEE, .
                                                                THE STATE OF TEXAS



             ORAL ARGUMENT NOT REQUESTED 





!
                                                TABLE OF CONTENTS 



 INDEX OF AUTHORITIES ....... ~ ... ;................. ,................ ~·................................................ ii . 

                                      .                                              .                                             .
 STATEMENT OF FACTS ................................·.·............................. ;.............. ;;...... ·..............1 


 SUMMARy. OF AR.GUMENT................ ~ ........................................................................2 


. APPELLEE'S RESPONSE TO APPELLANT'S ARGUMENT......... :..... ~ ......................3 


 PRAYER...:.......;.............................................................................................................·;......7 


 CERTIFICATE OF COMPLIANCE ............................................................................9 


. CERTIFICATE OF SERVICE ........................................ ~ ...........................10 





                                                                    1
                                                INDEX OF AUTHORITIES 

                                                       CASES 


Atchinson v. State, 124 S;W. 3d 755, (Tex. App.- Austin 2003, pet.refd)...................................... .4 


Davisv.Staie, 345 S.W. 3d 71 (Tex,Crim.App. 2001) .............................................................. .4 


Harmelin v. Michigan, 501 U.S. 957(Tex. Crim. App.1994), 111 S. Ct. 2680 (1991) ........................5 


1Iarris v. State, 65"6 S.W.4d 481 (Tex.Crim.App. 1983) (en banc) ............................................. ;.............. 5,7 . 


Jordan v. state, 495 S.W.2d 949 (Tex.Crim.App 1973)~ .... ;.......................................................................... 5 

                                                      .                                                    .

                                   F             th
McGruder v. Puckett, 954 .2d 313 (5 Cir. 1992) .................................................................6 


Moore    v: State, 54 S.W.)d 529 (Tex. App.- Fort Worth 2001, pet. ref d).......................................6 

Nolan v. State, 264 S.W. 3d 144 CTex.App.- Houston [1 st Dist.] 2007 ..........•................•......... :.... .4 


Samuelv. State, 477 S.W.2d 611 (Tex.Crim.App. 1972) ............ ~ .................•.............................5 


Smith v. State, 256 S.W.3d 341 (Tex:App.- San Antonio, 2007, no pet.)...................................... ~ ..7 


Solem v. Helm, 463 U.S. 277, 103 S.Ct. 2680 (1991) ...........................................................5,6,7 


Sullivan v. State, 975 S.W.2d 755 (Tex. App. - Corpus Christi 1998, no pet.) ....................................... 5,6,7 


Trevino v. State, 174 S.W.3d 925 (Tex.App. - Corpus Chrisif2005) ................... :...................... 5,7 




                                                          TEXAS STATUTES

Texas Penal Code sec. 29.03 ................................. :.................. ~ ............................................... .1 


Texas Penal Code sec .. 12.32............................................................... : ................................... .3 





                                                                   11
                                    STATEMENT OF FACTS 



       The Appellant,Gabier Gonzales, was indicted in cause number. S-11-3069-CR on
                 .                                        .                              .
March 8, 2011 for the. fIrst degree felony offense of Aggravated Robbery. Please see

Texas Penal Code, sec. 29.03. A briefsynopsis of the facts of this case,as admitted into

evidence without objection, were that the victim of this offense; Roy Cantera, opened the

door of his residence to Appellant, a man that the victim had considered to be a friend.

Once inside, Appellant asked Roy for some money. When Roy responded that he didn't

have any money to lend, Appellant willfully and without waning punched Roy,
                                                .                      .    in. the

area of the right eyeo{Roy's face. The force from the blow knocked Roy out, cold.

Immediately thereafter, Appellant removed Roy's wallet, took all the money he had

therein ($60), and left. As a result of this unprovoked attack, Roy's right eye was swollen

shut, and his eye socket was shattered. The injuries suffered were permanent, as Roy was

left blind in his right eye.

    To this offense, Appellant subsequently entered into a plea bargain agreement with

the State. PursuaIit to the plea agreement, Appellant pled guilty, and the Court accepted

the recommended plea of eight (8) years deferred adjudication probation on the fIrst

degree felony Aggravated Robbery charge, along with a $750.00 fme, with restitution to

the victim, if any, to be      determ~ned,   on May 23, 2011. On that date, the Court ordered

conditions of community supervision.

    Appellant was made fully aware of these conditions, and that a violation of one or

                                                    1

any of these conditions could result in the filing of a Motion to Revoke community

 supervision. Appellant was also made fully aware that,    sh~uld   his community supervision 


, be revoked by the, Court, he could be adjudicated by the Court, and be sentenced within 


the full range of punishment for a    fir~t   degree felony, anywhere between five (5)     99 


years, or Life, in the Institutio~al Division of the Texas Departmentof Criminal Justice. 


 Subsequent Court orde'rs were entered to amend conditions of community supervision. '

     On March 19, 2014; the Btate filed a Motion to Revoke community superVision. A

hearing on the merits of this motion was held on March 20, 2015. After Appellant pled
                              "
true to all allegations' alleged by the State in said motion, the Court found that the

allegations alleged were true, and found the Appellant guilty of the offense of Aggravated

Robbery. After hearing the respective arguments from both Appellant and the State as to

'punishment disposition, the Court sentenced Appellant to 15 years in the Institutional

Division Q~the Texas Department of Criminal Justice.



                             SUMMARY OF ARGUMENT

        Appellant presents one point of alleged error: '

        That the 15 year sentence imposed by the Court was allegedly disproportionate to

the seriousness of the offense, in alleged violation of the Eight Amendment and

Fourteenth Amendments to the United States' Constitution.

        Appellee 'contests this issue as follows:

        Appellant's conviction and 15 year prison sentence for the first degree felony of
                                                2

Aggravated Robbery was justified considering the nature of the offense. A first degree

felony carries a punishmerit range on 5-99 years, or life in the penitentiary. Please see

Texas Penal Code sec. 12.32. The Texas Court of Criminal Appeals has consistently held

that a sentence falling within the statutorily prescribed range of punishment does not

violate the prohibition. against cruel and unusual punishment.

         The trial court had initially afforded Appellant an opportunity to· avoid

incarceration by approving a probated sentence. Yet Appellant, in unsuccessfully

completing all requirements and terms of community supervision, demonstrated that he

had no respect for the trial court, little remorse for the offense he committed, and that he

was not intent on changing his ways.

         After having found that Appellant had violated his conditions of probation as

alleged, the Court listened to arguments from the State and from Appellant as to proper

punishment. Though the trial court had the power to order a much stiffer sentence, if

anything, it showed some mercy and restraint in limiting Appelant's prison sentence to

15   years~   especially in .light of the fact that the State had strongly   rec~mmended   a

sentence of at least 30 years confinement.



                                        ARGUMENT

        Appellant's' fifteen year prison sentence was not manifestly unreasonable or

grossly disproportionate to the seriousness of his crime, and does not constitute

cruel and unusual punishmerit~
                                              3

                                           Waiver

        When a sentence imposed is within the punishment range and is not illegal, the

failure to sp~cifically object to an alleged disproportionate sentence in the trial court or in

a post-trial motionwaves~my error on appeal. Nolan v. State, 264 S;W. 3d 144, 145.

(Tex. App.-Houston [1 st Dist.j20()7, pet. refd); TEX.R. App. P. 33.l(a) .

        .At the time the trial court sentenced him, Appellant ~id not object that the

punishment was excessive, disproportionate, or cruel and unusual. Nor did he timely file

a motion for new trial or other post-trial motion objecting that his sentence was

·excessive, disproportionate, or cruel and unusual.

        In·addition, the appealing party has the burden to make, and bring before the

. appellate court, a record demonstrating that error occurred in the trhil court. See Davis v.

State, 345 S.W.3d 71, .77 (Tex. Crim. App. 2011).

        Under a proportionality analysis, the correct question is whether the sentence was

warranted by the crime for which appellant was convicted, and not whether it was

·warranted by the supervisory violations proved at the adjudication hearing;. Atchison v.

State, 124 S.W.3d 755, 760 (Tex: App-Austin 2003, pet. ref d).

        The record in the present case is insufficient to I:lddress a chlim of disproportionate

sentencing, since there is no reporter's record from the original proceeding to show what

evidence the State presented, in addition to the judicial confession, to support the

conviction. Without such a·record, we·do not know what other evidence the trial court
                                               4

 may have heard concerning the gravity of the offense. Nor is there a record from the

.. adjudication hearing, at which the trial court may have heard additional evidence relevant '
      ."               .                                                                  .

 to the decision made regarding punishment.
           .                      .                  -
                                            Specifically, Appellant has failed to disprove
                                                         ..                    .




 the possibility that there may have been more evidence presented concerning the

 seriousness of the present.offense and circumstances which may justify a lengthy

 sentence,

       Accordingly, for reasons discussed above, Appellant waived error on his present

 claim that his sentence was disproportionate.

       However, even ifhe had preserved his claim, fe failed to prove his claim. at the

 appellantLuna was a mere party to the offense. All State's witriessestestified the

 appellant Luna was in fact a shooter.

                                  Proportionality Review

       Punishment which falls within the limits prescribed by a valid statute is not 


 excessive, cruel, or unusual. Trevino v. State, 174 S.W.3d 925~ 928 (Tex. App.-Corpus 


. Christi 2005, pet. refd) (citing Harris v. State, 656 S.W.2d 481,486 (Tex. Crim. App. 


 1983) (en banc); Jordan v. State, 495 S.W.2d 949,952 (Tex. Crim. App. 1973); Samuel·

 v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972).

       Proportionality"review of a legal sentence remains. somewhat ambiguous and

 uncertain. See Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991); Solem v.

 Helm, 463 U.S. 277, 291, 103 S.Ct. 3001 (1983); Trevino, 174 S.W.3d at 928; Sullivan v.

 State, 975 S.W.2d 755, 757-58 (Tex. App-Corpus Christi 1998, no pet.) However, to the
                                               5

extent that such review remains viable, the appellate court should look ftrst to the gravity

ofthe offense arid the harshness of the penalty. See Solem, 463 U.S. at 277, at290;

McGruder v. Puckett, 954 F.2d 313,316 (5 th Cir. 1992). If, based on his present

conviction, his criIl1 inal history, and the punishment range available, appell~t's sentence

is not grossly disproportionate to his crime, this ends the analysis, in the absence of other

evidence   in~e   appeIlaterecord of the sentences imposed for other crimes in Texas, or

.for the same crime in other jurisdictions upon which a comparative evaluation might be

based .. See Solem, 463 U.S. at 292.; McGruder, 954 F.2d at 316; Sullivan, 975 S.W,2d at

757-58.

                                   Gravity of the Offense

       The gravity of the offense.is judged in light of the harm caused or threatened to

society &Ild the offender's culpability. Moore y.State, 54 S.W.3d 529, 542 (Tex. App;.

Fort Worth 2001, pet. refd) (citing Solem, 463 U.S at 291-92).

       Appelhint's offense of aggravated robbery led to his victim becoming blind in his

right eye. In addition, Appellant's inability to follow his conditions of community

service, suggest a sufftciently grave offense to justifY a 15 year sentence.




                              Harshness of the Sentence

       A ftfteen year prison sentence is notso harsh as to be grossly disproportionate, in
                                    .                                                       .

view of the serious circumstances of the offense, and the ftve ~ ninety-nine years· or life
                                              6

         statutory penalty, which the trial court available to, it, in, accessing ,punishment.

         Appellant's failtire to abide by the rules prescribed by the trial court indicates his lack of

         desire to reform his life, and'that he 'apparently was not, taking, the court ordered
                     ,     .                     .        .

     , conditions of community supervision seriously. Accordingly, Appellant has failed to

         make even a threshold showing that his sentence was grossly disproportionate.

              J\1oreover, because' Appellant failed to present any evidence of the sentences
 •   .          I              ~:.       •   •                          .          .      '
                                                                ,              ,



         imposed for other simihir crimes in Texas, or for the same crimes' in other jurisdictions,

         the Court is unableto perform a comparative evaluation using the remaining Solem

         factors. See Solem, 463 U.S. at 292; see also'Sullivan, 975 S.W.2d at 757-58.

            Finally, "the Texas Court of Criminal Appeals has consistently held that a sentence

, , ,falling within the statutorily prescribed range of punishment for a given offense does not

         violate the prohibition against .cruel and unusual punishment."           Smith v. State, 256

·"S.W.3d 341, 343 (Tex. App-San Antonio 2007, no pet.) (citing Harris, 656 S.W.2d at

         486). Appellant's fifteen year sentence fell within the. statutorily prescribed ranged of
                                                                                            ,




         punishment, 


                    Appellant's lone issue on appeal should be overruled. 





                                                     PRAYER

                The Appellant has presented no grounds in his appeal which justify the relief

         sought. Accordingly, Appellee respectfully prays that this Honorable Court affirm the

                                                         7

· judgment   of the trial court in all respects.

                                                        Respectfully submitted,

                                                        Michael E. Welborn
                                                        District Attorney


                                                        ./s/ Frank Errico



                                                        Frank Errico
                                                        Assistant District Att~rney
                                                        State Bar No. 06648950
                                                        P.O. Box 1393 

                                                        Sinton, Texas 78387 . 

                                                        Tel. (361) 364-9390 

                                                        Fax (361) 364-9490 





                                                   8

                           CERTIFICATE OF COMPLIANCE 


       Incompliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the

number of words in this brief, excluding those matters listed in Rule 9.1(i)(1), is 2016.



                                                  /s/ Frank Errico


                                                  Frank Errico
                                                  Assistant District Attorney
                                                  State Bar No. 06648950
                                                  P.O. Box 1393




                                             9

                            CERTIFICATE OF SERVICE

      I hereby certify that on this 4th of September, 2015, a true and correct copy of the

above and foregoing instrument was faxed to John Lamerson, the counsel for the

Appellant, at (866) 935-5634.



                                                  /s/ Frank Errico


                                                  Frank Errico
                                                  Assistant District Attorney
                                                  State Bar No. 06648950
                                                  P.O. Box 1393 

                                                  Sinton, Texas 78387 

                                                  Tel. (361) 364-9390 

                                                  Fax (361) 364-9490 





                                           10 

