                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-09-440-CR


ASHLEY LUCILLE ROBERTS                                                  APPELLANT

                                             V.

THE STATE OF TEXAS                                                            STATE

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             FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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                           MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

       In two points, appellant Ashley Lucille Roberts appeals her conviction for

burglary of a habitation, asserting that her sentence was excessive and that the trial

court abused its discretion by denying her motion for a new trial without a hearing.

W e will affirm.




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            See Tex. R. App. P. 47.4.
                      II. F ACTUAL & P ROCEDURAL B ACKGROUND

       Roberts waived her right to a jury trial and entered an open plea of guilty to the

offense of burglary of a habitation. At the punishment hearing, the State offered

evidence of Roberts’s five prior convictions and called three witnesses to testify

about the burglary.     The evidence showed that Roberts and two accomplices

entered the home of Roberts’s aunt and uncle without their permission and stole

several items, including electronics, jewelry, a gun, and personal mementos,

estimated to be worth a total of approximately $12,000. Roberts admitted her role

in the burglary to her aunt and uncle and in a written statement to police. She

testified at the punishment hearing and admitted to her criminal record, to her

substance abuse problem, and to her attempts to get her aunt to lie to the judge

about the burglary. Roberts testified that she is trying to straighten out her life, that

she suffers from anxiety, and that she is remorseful for her actions. The trial court

sentenced her to fifteen years’ confinement, a $2,000 fine, and $12,031.22 in

restitution.

       Roberts filed a motion for new trial, arguing that the trial court erred by

imposing an excessive punishment. The trial court denied her motion without a

hearing, and Roberts perfected this appeal.

                           III. P UNISHMENT N OT E XCESSIVE

       In her second point, Roberts contends that the trial court abused its discretion

by imposing an excessive punishment. She does not dispute that her sentence was

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within the range provided by law, but she argues that the punishment was excessive

in light of the facts and her circumstances, including her acceptance of responsibility

for the crime, her admissions about her psychological condition and criminal record,

and her tough life, together with her counsel’s and both victims’s requests that she

receive community supervision.

      W e review a sentence imposed by a trial court for an abuse of discretion. See

Jackson v. State, 680 S.W .2d 809, 814 (Tex. Crim. App. 1984). Generally, a

sentence within the statutory range of punishment for an offense is not excessive,

cruel, or unusual punishment. Hill v. State, 493 S.W .2d 847, 849 (Tex. Crim. App.

1973); Alvarez v. State, 63 S.W .3d 578, 580 (Tex. App.—Fort W orth 2001, no pet.).

The United States Supreme Court announced a narrow exception in Solem v. Helm,

in which the court held that criminal sentences must be proportionate to the crime

and that even a sentence within the statutorily prescribed range may violate the

Eighth Amendment. 463 U.S. 277, 290, 103 S. Ct. 3001, 3010 (1983).

      In conducting an Eighth Amendment proportionality analysis, we first make a

threshold comparison of the offense against the severity of the sentence to

determine if the sentence is grossly disproportionate to the offense.         See id.;

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849

(1992); Moore v. State, 54 S.W .3d 529, 542 (Tex. App.—Fort W orth 2001, pet.

ref’d). If we determine that the sentence is grossly disproportionate to the offense,

we must then compare the sentence received to sentences for similar crimes in this


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jurisdiction and sentences for the same crime in other jurisdictions. See Solem, 463

U.S. at 292, 103 S. Ct. at 3011; McGruder, 954 F.2d at 316; Moore, 54 S.W .3d at

542.

        Here, Roberts could have been sentenced to between two and twenty years’

confinement and a fine up to $10,000. See Tex. Penal Code Ann. § 12.33 (Vernon

Supp. 2009), § 30.02(a)(1), (c)(2) (Vernon 2003). Her sentence of fifteen years’

confinement and a $2,000 fine is within this statutory range and, consequently, is not

excessive unless it fails the proportionality analysis. See McGruder, 954 F.2d at

316; Moore, 54 S.W .3d at 542.

        Comparing the gravity of the offense against the severity of her sentence, we

conclude that, given the nature of the offense, the relationship Roberts had to the

victims, and Roberts’s past criminal record, her sentence was not grossly

disproportionate to the offense. See Solem, 463 U.S. at 290, 103 S. Ct. at 3009;

Moore, 54 S.W .3d at 542–43. W e hold that trial court did not abuse its discretion in

its sentencing, and we overrule Roberts’s second point. See Jackson, 680 S.W .2d

at 814.

           VI. D ENIAL OF M OTION FOR N EW T RIAL N OT ABUSE OF D ISCRETION

        In her first point, Roberts contends that the trial court abused its discretion by

denying her motion for a new trial without a hearing. The State argues that the trial

court     did   not   abuse   its   discretion       because   the   matter   raised   in   her




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motion—excessive punishment—was determinable from the record and because

Roberts’s motion did not include a supporting affidavit.

      W e review a trial court’s decision to deny a hearing on a motion for a new trial,

as well as the decision to deny the motion itself, under an abuse of discretion

standard. Hobbs v. State, 298 S.W .3d 193, 200 (Tex. Crim. App. 2009); Mallet v.

State, 9 S.W .3d 856, 867–68 (Tex. App.—Fort Worth 2000, no pet.). The purpose

of a hearing on a motion for a new trial is to allow the defendant to develop the issue

raised in the motion. Jordan v. State, 883 S.W .2d 664, 665 (Tex. Crim. App. 1994).

A defendant does not have an absolute right to a hearing on a motion for a new trial.

Hobbs, 298 S.W .3d at 200. To be entitled to a hearing on a motion for new trial, the

movant must raise one or more matters not determinable from the record and

establish the existence of reasonable grounds showing that she could be entitled to

relief. Smith v. State, 286 S.W .3d 333, 339 (Tex. Crim. App. 2009). Even if a matter

is not determinable from the record, a hearing is not required unless the defendant

“establishes the existence of ‘reasonable grounds’ showing that the defendant ‘could

be entitled to relief.’” Id. (quoting Reyes v. State, 849 S.W .2d 812, 816 (Tex. Crim.

App. 1993)).

      Here, we have already explained that the trial court did not abuse its discretion

by imposing a sentence within the legislatively-mandated range of punishment. See

Tex. Penal Code Ann. §§ 12.33, 30.02(a)(1), (c)(2); Smith, 286 S.W .3d at 339. The

matter Roberts raised in her motion for new trial—excessive punishment—was


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determinable from the record, and she did not otherwise establish the existence of

reasonable grounds entitling her to relief. See Smith, 286 S.W .3d at 339 (requiring

that motion based on matters not in record be supported by affidavit specifically

setting out the factual basis for the claim). W e hold that the trial court did not abuse

its discretion by denying Roberts’s motion for new trial without a hearing, and we

overrule her first point. See Hobbs, 298 S.W .3d at 200; Mallet, 9 S.W .3d at 867–68.

                                    V. C ONCLUSION

      Having overruled Roberts’s two points, we affirm the trial court’s judgment.

                                                      SUE W ALKER
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and W ALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 8, 2010




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