                                                                                     ACCEPTED
                                                                                14-14-00733-CR
                                                                  FOURTEENTH COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                         12/31/2014 10:54:20 AM
                 No. 14-14-00733-CR                                         CHRISTOPHER PRINE
                                                                                         CLERK
                 No. 14-14-00734-CR
                            In the
                   Court of Appeals                            FILED IN
                           For the                     14th COURT OF APPEALS
                                                            HOUSTON, TEXAS
              Fourteenth District of Texas             12/31/2014 10:54:20 AM
                         At Houston                     CHRISTOPHER A. PRINE
                                                                Clerk
                  

                       No. 1325864
                       No. 1329499
                  In the 228th District Court
                   Of Harris County, Texas

                  

              KEITH DWAYNE JONES
                           Appellant
                             V.
              THE STATE OF TEXAS
                           Appellee

                  

             STATE’S APPELLATE BRIEF

                  

                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas

                                                ALAN CURRY
                                                State Bar No: 05263700
                                                Assistant District Attorney
                                                Harris County, Texas

                                                AARON CHAPMAN
                                                PAUL FORTENBERRY
                                                Assistant District Attorneys
                                                Harris County, Texas

                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                Tel.: 713/755-5826
                                                curry_alan@dao.hctx.net

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

oral argument only if oral argument is requested by the appellant.




                                           i
                     IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Complainants, victims, or aggrieved parties:

             Shah Qazi and Cheyenne Nicole Butler

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Alan Curry  Assistant District Attorney on appeal

             Aaron Chapman  Assistant District Attorney at trial

             Paul Fortenberry  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Keith Dwayne Jones

      Counsel for Appellant:

             Ken Goode  Counsel on appeal

             Eric Davis  Counsel at trial

      Trial Judge:

             Hon. Marc Carter  Presiding Judge




                                          ii
                                           TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ......................................................i

IDENTIFICATION OF THE PARTIES ..........................................................................ii

INDEX OF AUTHORITIES ............................................................................................. iv

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENT ................................................................................. 2

REPLY TO POINTS OF ERROR ONE AND TWO.................................................... 2

REPLY TO POINT OF ERROR THREE ....................................................................... 5

CONCLUSION ..................................................................................................................... 8

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

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




                                                               iii
                                         INDEX OF AUTHORITIES
CASES

Ajisebutu v. State,
  236 S.W.3d 309 (Tex. App.—
  Houston [1st Dist.] 2007, pet. ref’d) ................................................................................ 5
Culton v. State,
  95 S.W.3d 401 (Tex. App.—
  Houston [1st Dist.] 2002, pet. ref’d) ................................................................................ 4
Eisen v. State,
  40 S.W.3d 635 (Tex. App.—
  Waco 2001, pet. ref’d) ........................................................................................................ 6
Ex parte Chavez,
 213 S.W.3d 320 (Tex. Crim. App. 2006) ......................................................................... 5
Gavin v. State,
  404 S.W.3d 597 (Tex. App.—
  Houston [1st Dist.] 2010, no pet.).................................................................................... 4
Kirk v. State,
  949 S.W.2d 769 (Tex. App.—
  Dallas 1997, pet. ref’d) ....................................................................................................... 5
Nicholson v. State,
  738 S.W.2d 59 (Tex. App.—
  Houston [1st Dist.] 1987, no pet.).................................................................................... 7
Noland v. State,
 264 S.W.3d 144 (Tex. App.—
 Houston [1st Dist.] 2007, pet. ref’d) ................................................................................ 4
Norton v. State,
 434 S.W.3d 767 (Tex. App.—
 Houston [14th Dist.] 2014, no pet.) ................................................................................. 7
Pena v. State,
  285 S.W.3d 459 (Tex. Crim. App. 2009) ......................................................................... 7
Solem v. Helm,
  463 U.S. 277 (1983) ............................................................................................................ 4




                                                                iv
Solis v. State,
  945 S.W.2d 300 (Tex. App.—
  Houston [1st Dist.] 1997, pet. ref’d) ................................................................................ 4
Tenon v. State,
  563 S.W.2d 622 (Tex. Crim. App. 1978) ......................................................................... 7
Trevino v. State,
  174 S.W.3d 925 (Tex. App.--
  Corpus Christi 2005, pet. ref’d) ........................................................................................ 4
Wynn v. State,
 219 S.W.3d 54 (Tex. App.—
 Houston [1st Dist.] 2006, no pet.).................................................................................... 4
Young v. State,
  425 S.W.3d 469 (Tex. App.—
  Houston [1st Dist.] 2012, pet. ref’d) ................................................................................ 4


STATUTES

TEX. CODE CRIM. PROC. ANN. art. 42.07 (Vernon 2014).................................................. 6


RULES

TEX. R. APP. P. 33.1................................................................................................................ 7
TEX. R. APP. P. 33.1(a) ....................................................................................................... 3, 4
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................. i
TEX. R. APP. P. 9.4(g) .............................................................................................................. i




                                                                   v
TO THE HONORABLE COURT OF APPEALS:


                           STATEMENT OF THE CASE

       In cause numbers 1325864 and 1329499, the appellant was charged with

committing the felony offense of aggravated robbery on two separate occasions (C.R.

I-8; C.R. II-7). To both charges, the appellant entered pleas of guilty without an

agreed recommendation from the State as to punishment (C.R. I-97-98; C.R. II-95-

96). After the trial judge found the appellant guilty of both charged offenses, he

assessed the appellant’s punishment at confinement for 25 years in the Correctional

Institutions Division of the Texas Department of Criminal Justice (C.R. I-110; C.R.

II-107; R.R. 14). Written notices of appeal were timely filed in both cases (C.R. I-116;

C.R. II-113).

                         




                              STATEMENT OF FACTS

       The State challenges all factual assertions in the appellant’s brief and presents

its account of the facts within its reply to the appellant’s points of error.

                         
                        SUMMARY OF THE ARGUMENT

       The appellant has failed to preserve error on his claim that his two 25-year

sentences were cruel and unusual and on his claim that he was allegedly denied his

right to allocution.

                        




               REPLY TO POINTS OF ERROR ONE AND TWO

       Under his first and second points of error, the appellant claims, “The trial court

erred by imposing sentences grossly disproportionate to the offense underlying the

convictions resulting in cruel and unusual punishment in violation of” the Eighth

Amendment to the United States Constitution and Article I, Section 13 of the Texas

Constitution. In these cases, after the defendant pleaded guilty to both offenses and a

pre-sentence investigation report had been prepared, a sentencing hearing was held,

and the appellant’s trial attorney objected to some factual statements in the pre-

sentence investigation report (R.R. 5). He objected to the statement in the report that

the appellant fired a second shot during the commission of one of the offenses (R.R.

5).

       The objection is that that's an inaccurate statement, Judge. The PSI
       states that Mr. Jones pointed the gun at the complainant, pulled the
       trigger, shot him in the head, then fired the second shot, and then
       continued to try to fire the gun is what the PSI says.



                                           2
            The entire incident was captured on video. And the video shows
      that when Mr. Jones enters, there's a struggle over the gun. And during
      the course of the struggle, the gun goes off and the complainant is hit,
      and then he flees the scene after the gun goes off, leaving the gun there.

(R.R. 5). In response to these statements, the trial judge stated that he had viewed the

videotape and that he would base his decision upon what was depicted in the

videotape (R.R. 5-6).

      The appellant’s trial attorney then noted that several of the appellant’s family

members were present in the courtroom, and he briefly proffered what their

testimony would be concerning the appellant’s punishment (R.R. 7).            After the

argument of the appellant’s trial attorney (R.R. 7-10), the appellant himself was

permitted to address the court (R.R. 10), and the appellant’s trial attorney concluded

with additional argument (R.R. 10-11). After the trial prosecutor made his argument

(R.R. 12-13), the trial judge noted that the appellant could have easily been charged

with felony murder and/or capital murder for shooting victims with a gun during the

commission of two separate aggravated robberies (R.R. 13-14).          The trial judge

additionally noted that the appellant was a violent gang member (R.R. 14). There was

no objection to the trial judge’s sentence, and there was no objection to allegedly

preventing the appellant from saying anything before sentence could be pronounced

(R.R. 14).

      A defendant must object when his sentence is assessed or file a motion for new

trial to preserve a complaint of cruel and unusual punishment. See TEX. R. APP. P.


                                           3
33.1(a); Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no

pet.); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet.

ref’d). And a trial judge’s decision to impose a sentence on a defendant that falls

within the applicable statutory punishment range is not fundamental error. See Young

v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); Trevino

v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref’d). The

appellant’s first and second points of error should be overruled on that basis, and on

that basis alone.

       The State additionally notes that the Eighth Amendment forbids only extreme

sentences that are grossly disproportionate to their crimes. Solem v. Helm, 463 U.S.

277, 288 (1983). Generally, punishments that fall within the statutory limits do not

qualify as cruel and unusual. Young, 425 S.W.3d at 474; Gavin v. State, 404 S.W.3d 597,

606 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The three objective factors to

guide reviewing courts when evaluating proportionality are: (1) the gravity of the

offense and the harshness of the penalty; (2) the sentence imposed on other criminals

in the same jurisdiction; and (3) the sentences imposed for commission of the same

crime in other jurisdictions. Solem, 463 U.S. at 290. Only if the gravity of the offense

is grossly disproportionate to the sentence should a reviewing court consider the

sentences imposed upon other criminals or in other jurisdictions. Culton v. State, 95

S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). The appellant has

                                           4
not presented, and the record does not reflect, any evidence in support of a finding of

cruel and unusual punishment based upon these three factors.

      Appellate courts rarely consider a punishment that is within the statutory range

for the offense established by the Legislature to be excessive or unconstitutionally

cruel or unusual under either the Texas Constitution or the United States

Constitution. See Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997,

pet. ref’d). In fact, the trial court's discretion to impose any punishment within the

prescribed range has been described by the Court of Criminal Appeals as being

“essentially unfettered.” Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App.

2006). The appellant was charged with (and pleaded guilty to) two very serious,

violent offenses, which could have been much more serious if the appellant had in

fact succeeded in killing his victims. The sentences assessed against the appellant

were in no way cruel or unusual. The appellant’s first point of error should be

overruled.

                         




                    REPLY TO POINT OF ERROR THREE

      Under his third point of error, the appellant claims that the trial court violated

his right to allocution. As noted in the State’s reply to the appellant’s first two points


                                            5
of error, and as conceded by the appellant now on appeal, the appellant has failed to

object to the denial of a right of allocution—by way of a motion for new trial or

otherwise.   Since no error has been preserved for the purposes of appeal, the

appellant’s third point of error should be overruled. The State recognizes that TEX.

CODE CRIM. PROC. ANN. art. 42.07 (Vernon 2014) provides:

      Before pronouncing sentence, the defendant shall be asked whether he
      has anything to say why the sentence should not be pronounced against
      him. The only reasons which can be shown, on account of which
      sentence cannot be pronounced, are:

      1. That the defendant has received a pardon from the proper authority,
         on the presentation of which, legally authenticated, he shall be
         discharged[;]

      2. That the defendant is incompetent to stand trial; and if evidence be
         shown to support a finding of incompetency to stand trial, no
         sentence shall be pronounced, and the court shall proceed under
         Chapter 46B; and

      3. When a person who has been convicted escapes after conviction and
         before sentence and an individual supposed to be the same has been
         arrested he may before sentence is pronounced, deny that he is the
         person convicted, and an issue be accordingly tried before a jury, or
         before the court if a jury is waived, as to his identity.

The purpose of this provision is to allow a defendant to alert the trial court to any

legal reason that may not be of record that bars the imposition of punishment. Eisen

v. State, 40 S.W.3d 635 (Tex. App.—Waco 2001, pet. ref’d). The appellant did not at

trial, and does not now, claim that any of these reasons apply to him.

      To preserve error for appeal, a party is required to make a timely, request,

objection, or motion to the trial court and obtain an express or implied ruling. See

                                           6
TEX. R. APP. P. 33.1; Tenon v. State, 563 S.W.2d 622, 623-24 (Tex. Crim. App. 1978)

(holding that defendant failed to preserve issue for review because she did not object

to trial court's “failure to inquire of the appellant if she had anything to say why the

sentence should not be pronounced against her”); Nicholson v. State, 738 S.W.2d 59, 63

(Tex. App.—Houston [1st Dist.] 1987, no pet.) (“No error is preserved, however,

when an appellant does not object to the court's failure to provide appellant his right

of allocution or when appellant fails to timely assert the existence of any statutory

reason set forth in art. 42.07 to prevent pronouncement of sentence.”).

      A defendant must clearly convey to the trial court the particular complaint

raised on appeal by letting the trial judge know what he wants and why he thinks that

he is entitled to it, “clearly enough for the judge to understand him at the time when

the judge is in the proper position to do something about it.” Norton v. State, 434

S.W.3d 767, 771 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (quoting Pena v.

State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)). The appellant has not done that

in these cases. Rather, in these cases, the appellant was in fact permitted to speak

directly to the trial judge before he was sentenced. There is no indication that the

appellant had anything further to say before sentence was pronounced against him.

The appellant’s third point of error should be overruled.

                        




                                           7
                                  CONCLUSION

      It is respectfully submitted that all things are regular and that the convictions

should be affirmed.

                                                     DEVON ANDERSON
                                                     District Attorney
                                                     Harris County, Texas


                                                     /s/ Alan Curry

                                                     ALAN CURRY
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 05263700
                                                     curry_alan@dao.hctx.net




                                          8
                     CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document has

a word count of 1,722 words, based upon the representation provided by the word

processing program that was used to create the document.



                                                   /s/ Alan Curry

                                                   ALAN CURRY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   TBC No. 05263700
                                                   curry_alan@dao.hctx.net




                                        9
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on December 31, 2014:


      Ken Goode
      Attorney at Law
      P.O. Box 590947
      Houston, Texas 77259


                                                     /s/ Alan Curry

                                                     ALAN CURRY
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 05263700
                                                     curry_alan@dao.hctx.net

Date: December 31, 2014




                                         10
