                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                               §
 ABBOTT JOSEPH URANGA,                                         No. 08-12-00161-CR
                                               §
                         Appellant,                                Appeal from
                                               §
 v.                                                             30th District Court
                                               §
 THE STATE OF TEXAS,                                        of Wichita County, Texas
                                               §
                         Appellee.                               (TC # 51,381-A)
                                               §

                                           OPINION

       Abbott Joseph Uranga appeals his conviction of aggravated robbery. Appellant waived

his right to a jury and entered an open plea of guilty. The court assessed his punishment at

imprisonment for sixty years. For the reasons that follow, we affirm.

                              DISPROPORTIONATE SENTENCE

       In his sole issue on appeal, Appellant contends that his sixty year sentence violates the

Eighth Amendment because it is disproportionate to the offense. Appellant preserved the issue

by raising it in a motion for new trial.

       As a general rule, punishment is not cruel and unusual if it falls within the range of

punishment established by the Legislature.         Jackson v. State, 680 S.W.2d 809, 814

(Tex.Crim.App. 1984); Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App. 1983); Dale v.

State, 170 S.W.3d 797, 799 (Tex.App.--Fort Worth 2005, no pet.). Appellant was convicted of
aggravated robbery, a first degree felony. The statutory range of punishment for a first-degree

felony offense is five to ninety-nine years or life imprisonment and a fine not to exceed $10,000.

TEX.PENAL CODE ANN. §12.32 (West 2011). The sixty-year sentence assessed by the trial court

falls within the statutory range of punishment. A narrow exception to this general rule is

recognized when the sentence is grossly disproportionate to the offense. Dale, 170 S.W.3d at

799, citing Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 S.Ct. 2680, 2706-2707, 115

L.Ed.2d 836 (1991)(Kennedy J., concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct.

3001, 3009-3011, 77 L.Ed.2d 637 (1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.),

cert. denied, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992).

        After the Supreme Court’s decision in Harmelin, a question arose whether the Eighth

Amendment did or did not prohibit disproportionate sentences in non-death-penalty cases. The

Fifth Circuit concluded in McGruder that proportionality analysis survived Harmelin but Solem

did not. McGruder, 954 F.2d at 316. The Fifth Circuit determined that Harmelin required a

reviewing court to initially make a threshold comparison of the gravity of the defendant’s

offenses against the severity of his sentence. Id. Only if the reviewing court finds that the

sentence is grossly disproportionate to the offense will it consider the remaining Solem factors

and compare the sentence received to (1) sentences for similar crimes in the same jurisdiction

and (2) sentences for the same crime in other jurisdictions. Id. Many Texas intermediate

appellate courts, including the Second Court of Appeals, have adopted McGruder’s modified

approach. Padilla v. State, Nos. 02-09-247-CR, 02-09-248-CR, 02-09-249-CR, 02-09-250-CR,

2010 WL 2555212 at *1-2 (Tex.App.--Fort Worth June 24, 2010, no pet.)(mem. op.,

not designated for publication); Dale, 170 S.W.3d at 799-800;1 see e.g., Sneed v. State, ---


1
  The Texas Supreme Court transferred this appeal from the Second Court of Appeals to the Eighth Court of
Appeals pursuant to a docket equalization order. We will decide the case in accordance with the precedent of the

                                                     -2-
S.W.3d ----, 2013 WL 1748807 at *4 (Tex.App.--Eastland 2013, no pet. h.); Charcas v. State,

No. 08-07-00034-CR, 2009 WL 132142 at *2 (Tex.App.--El Paso Jan. 15, 2009, no pet.)(not

designated for publication); Medlock v. State, No. 12-06-00401-CR, 2007 WL 2951343 at *3

(Tex.App.--Tyler Oct. 11, 2007, pet. ref’d)(mem. op., not designated for publication); Mullins v.

State, 208 S.W.3d 469, 470 (Tex.App.--Texarkana 2006, no pet.); Trevino v. State, 174 S.W.3d

925, 928 (Tex.App.--Corpus Christi 2005, pet. ref’d); Dunn v. State, 997 S.W.2d 885, 892

(Tex.App.--Waco 1999, pet. ref’d); Mathews v. State, 918 S.W.2d 666, 668-69 (Tex.App.--

Beaumont 1996, pet. ref’d); Puga v. State, 916 S.W.2d 547, 549-50 (Tex.App.--San Antonio

1996, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex.App.--Dallas 1994, pet. ref’d).

         The punishment evidence established that Appellant entered a pawnshop in Wichita Falls

with a handgun and yelled at the owner, Bradley, that it was a robbery. Bradley had been down

on one knee when Appellant came in. Bradley clutched his chest and pretended to have a heart

attack, rolling to the floor. Appellant continued pointing the gun at him and demanded the

money. Bradley pointed to the register each time Appellant demanded money, but he instead

ordered Bradley to get in the back room. Bradley knew he should not go to the back room with

Appellant, so he asked him to call 911. Appellant fired one shot near Bradley’s head and

threatened to shoot him if he did not get up. The bullet passed only inches from Bradley’s head.

Bradley got up and slowly backed up to create space between himself and Appellant. Even

though he had a loaded gun under the counter, Bradley knew he was too close to Appellant to

risk getting it, so he ran to the back room in an effort to get a shotgun to defend himself. Bradley

got the shotgun and fired once at Appellant who had pursued him to the back room. Appellant

returned fire and kept moving towards Bradley, who fired the shotgun again. Appellant then ran



transferor court under principles of stare decisis if our decision otherwise would be inconsistent with the precedent
of the transferor court. See TEX.R.APP.P. 41.3.

                                                        -3-
out of the shop. Bradley chased Appellant and fired another shot at the ground about twenty feet

behind him.

       Appellant is an admitted member of the Varrio Carnales, a violent criminal street gang,

and he committed the aggravated robbery with another gang member. Appellant claimed at the

punishment hearing that he decided to abandon the gang lifestyle immediately after being shot at

by Bradley, but the evidence showed that, during the month after the offense and prior to his

arrest, Appellant made numerous postings to his Facebook account referencing his gang lifestyle

and refusal to change for anyone.

       We will first consider the threshhold comparison of the gravity of the offense against the

severity of the sentence. The gravity of the offense is determined by evaluating the harm caused

or threatened and the offender's culpability. Dale, 170 S.W.3d at 800. Appellant committed

aggravated robbery with a deadly weapon. This offense obviously involves an implicit threat

and risk of death or serious bodily injury. Appellant did not merely threaten the victim with a

gun in order to obtain money; he actually fired twice at Bradley. If Appellant’s aim had been

better and Bradley had not been able to reach a loaded shotgun to defend himself, this could

easily have been a capital murder case rather than an aggravated robbery. The sixty year

sentence assessed by the trial court is substantial but it falls near the middle of the statutory

punishment range. Under the facts of this case, we are unable to conclude that the sentence is

disproportionate to the severity of the offense. Consequently, it is unnecessary to consider the

remaining Solem factors. We overrule Issue One and affirm the judgment of the trial court.


October 16, 2013
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)

                                              -4-
