
NO. 07-00-0269-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

AUGUST 21, 2001

______________________________


AMR ALASHMAWI, APPELLANT

V.

IBP, INC., APPELLEE


_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 85,846-D; HONORABLE DON EMERSON, JUDGE

_______________________________


ON MOTIONS FOR REHEARING


Before QUINN and REAVIS and JOHNSON, JJ.


	Remaining convinced that our original disposition was correct, Alashmawi's motion
for rehearing en banc and IBP's motion for rehearing are both overruled with the following
comments.

	By his motion for rehearing, Alashmawi urges that his pleadings raised violation of
IBP's duty to provide a safe workplace according to section 411.103 of the Texas Labor
Code, and that he presented some evidence creating a genuine fact issue on the
causation element of his non-statutory claim for negligence.
	 By paragraph seven of his third amended petition, without referencing section
411.103, Alashmawi generally alleged that IBP failed to provide him with a safe workplace
followed by ten separate claims of negligence.  Then, by paragraph eight entitled
"Negligence Per Se," he  alleged IBP' s duty to provide a safe workplace followed by
citations and reference to multiple OSHA rules and regulations, and then finally section
411.103 is referenced.  However, that reference is global and does not indicate which of
the duties per the three subsections of section 411.103 are implicated.  Further, the
pleadings do not allege facts which Alashmawi claims support any of the duties arising
under section 411.103.  Moreover, even if the statutory claims were asserted as required
by Murray v. O & A Express, Inc., 630 S.W.2d 633, 636  (Tex. 1989), a question we do not
decide, nevertheless the statutory claims were not expressly presented to the trial court
by written answer or other written response to IBP's motion for summary judgment as
required by McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993).  In
McConnell, the Court held that:
	Likewise, issues a non-movant contends avoid the movant's entitlement to
summary judgment must be expressly presented by written answer to the
motion or by other written response to the motion and are not expressly
presented by mere reference to summary judgment evidence.
Emphasis added.  Because the issue of a safe workplace per the statute was not expressly
presented to the trial court and cannot be expressly presented by mere reference to
summary judgment evidence, they cannot be considered on appeal as grounds for
reversal.  Tex. R. Civ. P. 166(a) and (c).
	Accordingly, the motions for rehearing are overruled.

						Don H. Reavis
						    Justice



Publish.
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NO. 07-10-00404-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

JUNE
16, 2011
 

 
BRIAN ANDRE LATIMER, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 297TH DISTRICT COURT OF TARRANT
COUNTY;
 
NO. 1103964D; HONORABLE EVERETT YOUNG, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
 
 
MEMORANDUM OPINION
 
            Appellant
Brian Andre Latimer appeals from his jury conviction of the offense of
aggravated robbery and the resulting sentence of thirty-five years of
imprisonment.  Through one issue,
appellant challenges his sentence, arguing its imposition violated the
constitutional prohibition of a grossly disproportionate sentence.  We will affirm.
 
Background
            At appellants trial, evidence was
presented to show he was one of two men who robbed the manager of a convenience
store in Arlington, Tarrant County, in March 2008.  The manager testified two men approached him
as he was locking the store after midnight. 
One of the men, later identified as appellant, pointed a handgun at the
manager and asked him for money.  They
took the $60 cash the manager had in his pocket and his wallet containing $10
and his credit cards.  The 9mm handgun used
in the offense was admitted as evidence at trial.  The jury found appellant guilty of aggravated
robbery, aggravated because of appellants use or exhibition of a deadly
weapon. 
            Prior
to trial, appellant filed an application for a probated sentence and noted he
was eligible for probation.  Through
several witnesses, the jury heard about appellants history and his ability to
successfully complete probation.  At the
conclusion of the presentation of evidence, the jury sentenced appellant to
thirty-five years of imprisonment.  This
appeal followed.
 
Analysis
            In
appellants sole issue on appeal, he contends the sentence imposed against him
violated his constitutional right to be free from cruel and unusual and
disproportionate punishment because his punishment was extremely severe
compared to the gravity of the offense; to sentences imposed in similar cases
in Tarrant County; and to sentences imposed for the same type of offense in
other jurisdictions.  U.S. Const. amend. VIII; Tex. Const. art. I, § 13.  Appellant
argues the sentence imposed against him was disproportionate to the crime
committed because very little money was taken and no one was injured.  
We review a sentence imposed by a trial court for
an abuse of discretion.  Jackson v. State, 680
S.W.2d 809, 814 (Tex.Crim.App. 1994).  The Eighth Amendment to the
United States Constitution provides: "[e]xcessive bail
shall not be required, nor excessive fines imposed, nor
cruel and unusual punishment inflicted." U.S. Const. amends. VIII, XIV. The Eighth Amendment does not require strict
proportionality between the crime and the sentence; rather, it forbids  extreme sentences
that are "grossly disproportionate" to the crime. Ewing
v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003). The precise contours of
the "grossly disproportionate" standard are
unclear, but it applies in only "exceedingly rare" and
"extreme" cases. Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.
Ct. 1166, 155 L. Ed. 2d 144 (2003). The gross disproportionality principle reserves a constitutional
violation for only the extraordinary case. 
Id. at 77.  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 Ewing, 538 U.S. at 30; Harmelin
v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680,
115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the
judgment).  Only if we determine
that the threshold comparison leads to an inference of gross disproportionality, Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring
in part and concurring in the judgment), would we compare the sentence
received to sentences for similar crimes in this jurisdiction and sentences for the same crime in other
jurisdictions. 
The
Texas Constitution likewise prohibits "cruel or unusual punishment." Tex. Const.
art. I, § 13. "It has long been recognized that if
the punishment assessed is within the range of punishment established by the legislature
under its constitutional authority, there is no violation of the state
constitutional provisions against cruel and unusual punishment." Puga v. State, 916 S.W.2d 547, 550
(Tex. App.--San Antonio 1996, no pet.).
            Aggravated robbery is a first degree felony.  Tex. Penal Code Ann. § 29.03(b) (West 2003); Tex. Penal Code Ann. § 12.32 (West
2009).   Our states law provides an individual
adjudged guilty of a felony of the first degree shall be punished by
imprisonment in the Texas Department of Criminal Justice for life or for any
term of not more than 99 years or less than 5 years and a fine not to exceed
$10,000.  In this case, appellants
sentence of thirty-five years and no fine is within the range of punishment
established by the legislature and is not excessive unless it fails the
proportionality analysis. Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring in part and concurring in the
judgment), Moore v. State, 54 S.W.3d 529, 542
(Tex. App.--Fort Worth 2001, pet. ref'd).
            Aggravated
robbery with a deadly weapon is a serious offense.  Evidence showed appellant owned the handgun
and joked with his friends that he was going to rob someone.  Appellant planned the robbery for which he
was convicted and took the gun with him and pointed it at the store manager.
Police found the pistol fully loaded, with a box containing additional rounds.
Appellant confessed to the robbery. 
During the punishment phase, the jury heard appellant was a member of a
street gang. The jury also heard evidence he had burglarized two cars, one of
which was a patrol car, stolen a police laptop from the patrol car, and evaded
police. They heard evidence of another occasion on which appellant broke into
the home of a woman who was home alone with her baby. For this current offense,
appellant received a sentence of about one-third the maximum statutory
punishment. 
Comparing the
seriousness of appellants offense (first degree felony) with the severity of
his sentence (one-third the maximum), and considering the evidence of his other
criminal offenses, we find his sentence was not grossly disproportionate to the
offense.  See Harmelin, 501 U.S. at 957 (Supreme Court upheld
a mandatory sentence of life without the possibility of parole for a first-time
offender for the offense of possession of more than 650 grams of cocaine); Rummel v. Estelle, 445 U.S.263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (Supreme Court upheld
mandatory life sentence under former habitual offender statute in case where
defendant had two prior felony convictions for fraudulent use of a credit card
for $80 and passing a forged check for $28.36 and was later convicted of a
third felony, obtaining $120.75 under false pretenses).  See
also Roberts v. State, No. 02-09-440-CR, 2010 Tex.App.
LEXIS 5408 (Tex.App.Fort Worth
July 8, 2010, no pet.) (mem. op., not
designated for publication); Hernandez v.
State, No. 04-03-00453-CR, 2004 Tex.App. LEXIS 5234 (Tex.App.San Antonio June 16,
2004, no pet.) (mem. op., not designated for
publication) (both finding sentences within statutory
range not disproportionate).  Because the
threshold analysis does not suggest grossly disproportionate punishment, we
need not engage in a comparison of appellants sentence to other sentences for
the same offense.[1] Jackson v. State, 989 S.W.2d 842, 845-46 (Tex.App.Texarkana
1999, no pet.).
 
Consequently, there also is no violation of the Texas
constitutional provision against cruel and unusual punishment.  Gonzales v. State, 386 S.W.2d 139, 140 (Tex.Crim.App.
1965); Puga, 916 S.W.2d at 550. 
            Finding
this case does not present an extreme or extraordinary sentence grossly
disproportionate to the offense, we see no abuse of discretion by the trial
court in its sentencing of appellant.  We
resolve appellants sole issue against him and affirm the judgment of the trial
court.
 
                                                                                                James
T. Campbell
                                                                                                            Justice
 
 
Do
not publish.
 
 




[1] Such an analysis, considering the
cases appellant cites, would not lead to a different outcome.  Appellants brief cites several Texas
opinions reciting punishments for aggravated robbery ranging from 9 years to 25
years.  However, appellants gang affiliation
and significant criminal history provide sufficient distinctions between this
case and those.  


