                                     In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-19-00040-CR
                              NO. 09-19-00041-CR
                              __________________

                   RAPHAEL DIMENICK SAM, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

__________________________________________________________________

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
                 Trial Cause Nos. 18-29123, 18-29124
__________________________________________________________________

                         MEMORANDUM OPINION

      A jury found appellant Raphael Dimenick Sam guilty of aggravated robbery

and aggravated kidnapping. In trial cause number 18-29123, the jury assessed Sam’s

punishment as a habitual felony offender at life imprisonment for the offense of

aggravated robbery and assessed a $10,000 fine. In trial cause number 18-29124, the

jury assessed Sam’s punishment as a habitual felony offender at ninety-nine years


                                        1
of confinement for the offense of aggravated kidnapping. In each case, Sam

complains about the admission of evidence and argues that his sentence constitutes

cruel and unusual punishment. In trial cause number 18-29124, Sam argues that the

trial court erred by denying his motion in arrest of judgment. In a letter brief, Sam

challenges the trial court’s assessment of court costs and requests that we modify the

judgments to correct a clerical error. We affirm the trial court’s judgments in each

cause as modified.

                              Admission of Evidence

      In his first issue in each case, Sam complains that the trial court erred by

allowing evidence regarding the mental injuries of the victim, T.C., which Sam

contends is irrelevant and not an element of the offense. According to Sam, the

admission of T.C.’s victim impact testimony during guilt-innocence was harmful

and requires reversal. We disagree.

      We review the trial court’s admission of victim impact evidence for an abuse

of discretion. DeLarue v. State, 102 S.W.3d 388, 402 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref’d). We will uphold a trial court’s ruling if it is reasonably

supported by the record and is correct under any applicable legal theory. State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Victim impact evidence may

be admissible during the punishment phase when the evidence has some bearing on

                                          2
the defendant’s personal responsibility or moral culpability. Espinosa v. State, 194

S.W.3d 703, 711 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Relevant victim

impact evidence may include evidence that concerns the physical, psychological, or

economic effect of the crime on the complainant or his family. Id.; see also Tex. R.

Evid. 401.

      The record shows that during T.C.’s direct examination, T.C testified, without

objection, that he no longer walked to the store at night. Generally, to preserve error

for appellate review, a defendant must make a timely, specific objection at trial. See

Tex. R. App. P. 33.1(a)(1)(A). Because Sam failed to timely object to T.C.’s

testimony that he no longer walked to the store at night, we hold that Sam has failed

to preserve any error. See id.

      The record further shows that when the prosecutor asked T.C. if he let his

family go out at night, defense counsel objected based on relevance. The prosecutor

claimed that it was relevant to T.C.’s mental injuries, and defense counsel argued

that it was improper bolstering of the witness and was not acceptable during the

guilt-innocence phase. The trial court stated that during direct examination, it would

allow a full exploration of the extent of injuries because it is an element of the

offense. However, the prosecutor made no further attempt to ask T.C. if he let his

family go out at night, and Sam does not point this Court to anything in the record

                                          3
that shows the trial court admitted any evidence concerning T.C.’s mental injuries.

See Espinosa, 194 S.W.3d at 711. Instead, the record shows that the prosecutor asked

T.C. if he was still having physical injuries or problems, and Sam made no objection.

Regardless, T.C.’s testimony concerning the extent of his physical injuries was

relevant to prove that Sam caused bodily injury. See id. We conclude that the record

fails to support Sam’s contention that the trial court erred by allowing irrelevant

evidence of T.C.’s mental injuries. Accordingly, in each case, we overrule Sam’s

first issue.

                             Motion in Arrest of Judgment

       In his second issue in trial cause number 18-29124, Sam complains that the

trial court erred by denying his motion in arrest of judgment. Sam argues that the

judgment in his aggravated kidnapping case is invalid because it contains an

affirmative finding that a deadly weapon was used or exhibited when that issue was

not appropriately pleaded.

       The indictment alleges that Sam:

       did then and there intentionally and knowingly abduct [T.C.], hereafter
       styled the Complainant, by restricting the movements of the
       Complainant without the consent of the Complainant, so as to interfere
       substantially with Complainant’s liberty, by moving [T.C.] from one
       place to another, with the intent to prevent the Complainant’s [liberty]
       by using and threatening to use deadly force, namely, by threatening to
       shoot the Complainant with a firearm and by striking the Complainant
       with a firearm and by stabbing the Complainant with a knife, that in the
                                           4
      manner of its use and intended use is capable of causing serious bodily
      injury and death, and with the intent to inflict bodily injury on the
      Complainant or fa[c]ilitate the commission of a felony, to-wit:
      Robbery[.]

The application paragraph of the jury charge tracked the language of the indictment.

The jury found Sam guilty of the offense of aggravated kidnapping, as charged in

the indictment. The record shows that the trial court entered a deadly weapon

finding. Sam filed a motion in arrest of judgment, complaining that the affirmative

finding was improperly entered on the judgment because “deadly weapon” was not

specifically pleaded in the indictment and no special issue was submitted during

punishment. The trial court denied Sam’s motion.

      A deadly weapon is anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury. Tex. Penal Code Ann. §

1.07(a)(17)(B). “A firearm is a deadly weapon per se.” Ex parte Huskins, 176

S.W.3d 818, 820 (Tex. Crim. App. 2005). There are three major modes by which a

trial court may make an affirmative finding of a deadly weapon when the jury is the

trier of fact: (1) when the indictment itself alleges a deadly weapon; (2) when the

instrument used is per se a deadly weapon, such as a firearm; or (3) when the jury

makes an affirmative finding through a deadly weapon special issue included in the

jury charge. Lafleur v. State, 106 S.W.3d 91, 95 (Tex. Crim. App. 2003).


                                         5
      The State specifically pleaded that a firearm was used in the commission of

the offense of aggravated kidnapping, and a firearm is a deadly weapon per se. See

Ex parte Huskins, 176 S.W.3d at 820. We conclude that the trial court’s entry of an

affirmative finding that Sam used a deadly weapon, namely a firearm, was proper.

See Lafleur, 106 S.W.3d at 95. Accordingly, the trial court did not err by denying

Sam’s motion in arrest of judgment. In trial cause number 18-29124, we overrule

issue two.

                          Cruel and Unusual Punishment

      In his second issue in trial cause number 18-29123 and his third issue in trial

cause number 18-29124, Sam maintains that he should be granted a new punishment

hearing because his sentence of ninety-nine years for aggravated kidnapping and his

life sentence for aggravated robbery constitute cruel and unusual punishment under

the Texas and United States Constitutions, because his sentences are grossly

disproportionate to the offenses committed. See U.S. Const. amend. VIII; Tex.

Const. art. I, § 13. According to Sam, the harm he caused the victim was not life

threatening, there was no evidence that the victim suffered any ongoing trauma other

than a fear of leaving home at night, there was no evidence that he threatened or

caused any harm to society, and his culpability was debated by the police who

responded to the scene.

                                         6
      In his brief, Sam cites one case in which the defendant was convicted of

aggravated robbery and aggravated sexual assault and three cases in which the

defendant was convicted of aggravated robbery and aggravated kidnapping. In all

the cases Sam cites, the defendant received shorter sentences than Sam did in the

cases at issue.

      Generally, a sentence that is within the range of punishment established by

the Legislature is not excessive, cruel, or unusual, and will not be disturbed on

appeal. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016); Jackson v.

State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). An appellate court rarely

considers a punishment within the statutory range for the offense excessive,

unconstitutionally cruel, or unusual under either Texas law or the United States

Constitution. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet.

ref’d); see also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999,

no pet.). An exception to this general rule is recognized when the sentence is grossly

disproportionate to the offense. Solem v. Helm, 463 U.S. 277, 289-90 (1983); see

also Harmelin v. Michigan, 501 U.S. 957, 1004-05 (1991) (Kennedy J., concurring).

Except for cases involving capital punishment, successful challenges to the

proportionality of particular sentences are exceedingly rare. Solem, 463 US. at 289-

90.

                                          7
      To determine whether a sentence is grossly disproportionate to a particular

defendant’s crime, we consider (1) the severity of the offense in light of the harm

caused or threatened to the victim; (2) the culpability of the defendant; and (3) the

defendant’s prior adjudicated and unadjudicated offenses. Simpson, 488 S.W.3d at

323. In the rare case in which this threshold comparison leads to an inference of

gross disproportionality, we then compare the defendant’s sentence with the

sentences of other offenders in Texas and with the sentences imposed for the same

crime in other jurisdictions. Id. “If this comparative analysis validates an initial

judgment that the sentence is grossly disproportionate, the sentence is cruel and

unusual.” Id.

      Aggravated robbery and aggravated kidnapping are first-degree felony

offenses, which carry a punishment range of confinement for life or for any term of

not more than ninety-nine years or less than five years. Tex. Penal Code Ann. §§

12.32(a), 20.04(c), 29.03(b). In addition to imprisonment, a felony of the first degree

may be punished by a fine not to exceed $10,000. Id. § 12.32(b). In both cases, Sam

was charged as a repeat felony offender, and Sam’s previous convictions included

two felony possessions of a controlled substance and three aggravated robberies. See

id. § 12.42(c)(1). The record shows that Sam pleaded “true” to all five enhancement

paragraphs, thereby subjecting him to a punishment range in each case to

                                          8
imprisonment for life, or for any term of not more than ninety-nine years or less than

fifteen years. See id. We conclude that Sam’s sentence of ninety-nine years of

confinement for aggravated kidnapping falls within the applicable punishment range

and is not unconstitutionally excessive or cruel and unusual. See id. § 12.42(c)(1),

20.04(c). We further conclude that Sam’s life sentence and $10,000 fine for

aggravated robbery falls within the applicable punishment range and is not

unconstitutionally excessive or cruel and unusual. See id. § 12.42(c)(1), 29.03(b).

      Additionally, having reviewed the records and considered the harm to Sam’s

victim, Sam’s culpability, and his prior offenses, we cannot conclude that either case

is one of those rare cases that leads to the inference that Sam’s sentence was grossly

disproportionate to the offense. See Solem, 463 US. at 289-90; Simpson, 488 S.W.3d

at 323. Accordingly, in trial cause number 18-29123, we overrule issue two, and in

trial cause number 18-29124, we overrule issue three.

                             Modification of Judgments

      Sam claims that there is a clerical error in the trial court’s judgments that needs

to be reformed. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.

Crim. App. 1993). Sam requests that we correct both judgments which reflect that,

“THIS SENTENCE SHALL RUN: N/A” to reflect that the sentence shall run

concurrently because Sam was found guilty of more than one offense arising out of

                                           9
the same criminal episode prosecuted in a single criminal action. See Tex. Penal

Code Ann. § 3.03(a). We note that the record reflects that when the trial court orally

pronounced Sam’s sentences, the trial court ordered that the sentences shall run

concurrently. See Bigley, 865 S.W.2d at 27. We modify the trial court’s judgments

in trial cause numbers 18-29123 and 18-29124 to show that Sam shall serve those

sentences concurrently.

      Sam also challenges the trial court’s assessment of court costs in each of the

causes instead of only once. The record reflects that the trial court assessed costs of

$359 in trial cause numbers 18-29123 and 18-29124. Article 102.073(a) of the Texas

Code of Criminal Procedure provides as follows: “In a single criminal action in

which a defendant is convicted of two or more offenses or multiple counts of the

same offense, the court may assess each court cost or fee only once against the

defendant.” Tex. Code Crim. Proc. Ann. art. 102.073(a). Sam was convicted of

aggravated robbery and aggravated kidnapping in a single criminal action.

Therefore, the trial court’s imposition of $359 in court costs more than once was

improper. See id. We modify the trial court’s judgment in trial cause number 18-

29124 by deleting $359 from the “Court Costs” section of the first page of the

judgment. We affirm the trial court’s judgments in trial cause numbers 18-29123 and

18-29124 as modified.

                                          10
      AFFIRMED AS MODIFIED.



                                           ______________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice


Submitted on December 2, 2019
Opinion Delivered January 22, 2020
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                      11
