Opinion issued July 16, 2013




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-12-00145-CR
                            ———————————
               KENDRICK MARQUIS PLEASANT, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Case No. 1292602


                       MEMORANDUM OPINION

      Kendrick    Marquis    Pleasant    pleaded   guilty   without    an   agreed

recommendation to aggravated robbery with a deadly weapon. 1 Following a reset

for completion of a presentence investigation report (“PSI”), the trial court found
1
      TEX. PENAL CODE ANN. § 29.03(b) (West 2011).
appellant guilty and assessed his punishment at eight years’ confinement. In two

issues, appellant contends that the trial court’s imposition of an eight-year sentence

violates (1) his right to due process of law under the Texas Constitution and (2) his

right against cruel and unusual punishment under the United States Constitution.

We affirm.

                                    Background

      Indicted for aggravated robbery with a deadly weapon, appellant, having

filed a motion for community supervision, pleaded guilty without an agreed

recommendation as to punishment and was duly admonished by the trial court. At

the February 6, 2012 sentencing hearing, the trial court noted that it had “had that

PSI for a while” and had “gone through it a number of times.” No witnesses were

presented. In its closing argument, the State opposed community supervision

because appellant had not taken responsibility for the crime, a gun was used during

the home invasion in which the complainant was injured, and appellant had twice

been previously charged with the unlawful possession of a firearm. The defense

counsel, in turn, asked the court to consider appellant’s youth, the 300 days already

spent in jail, and appellant’s return to school since his release on bond.

      At the conclusion of the hearing, the trial court noted the case to be an armed

home invasion, appellant’s multiple prior offenses of carrying a weapon, and a

prior assault offense as a juvenile. In light of these factors, the court determined

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“[t]his is not the right case in my mind and the right background for [community

supervision]” and sentenced appellant to eight years’ incarceration.

                                     Discussion

      Appellant’s first point of error contends that the trial court abused its

discretion in denying his request for community supervision and sentencing this

first-time felony offender to eight years’ confinement. Such an excessive sentence,

appellant argues, violated his Texas Constitutional due process rights under Article

I, Section 19. The State counters that (1) appellant’s claim is inadequately briefed,

(2) appellant waived any error by failing to object below, and (3) the sentence

imposed was within the statutory range based on a proper factual foundation.

      The punishment range for an aggravated robbery is five to ninety-nine years’

imprisonment. See TEX. PENAL CODE ANN. §§ 12.32(a), 29.03(b) (West 2011).

Appellant acknowledges that his eight-year sentence is within the range of

punishment established by the Legislature and, as such, will generally not be

disturbed on appeal. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.

1984). He argues, however, that while an appellate court will not review the length

of a statutorily permissible sentence, it will review the process by which the

particular punishment was determined. Nonetheless, appellant fails to show how

the trial court’s determination of his sentence denied him due process. Further,

although he cites to several authorities, appellant does not connect them to the facts

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of this case. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and

concise argument for the contentions made, with appropriate citations to authorities

and to the record.”); Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App.

1985) (“Mere assertions in a brief not supported by evidence in the record will not

be considered on appeal.”).

      In light of the wide discretion accorded trial court judges to decide the

appropriate punishment in a given case, we conclude that there was no abuse of

discretion in sentencing appellant to eight years’ confinement. See Jackson, 680

S.W.2d at 814. An abuse of discretion will be found only when there is no

evidence or factual basis for the punishment imposed. Id. As previously noted, the

punishment range for an aggravated robbery is five to ninety-nine years’

imprisonment, and appellant was sentenced to eight years’ confinement, only three

years above the minimum sentence. See TEX. PENAL CODE ANN. §§ 12.32(a),

29.03(b).

      The transcript of the sentencing hearing reflects that the court had reviewed

the PSI report “a number of times” and had the benefit of argument from both the

State and trial counsel. At the conclusion of the hearing, the court made clear that

its decision was based on the underlying facts of the case as well as appellant’s

prior criminal history. Specifically, the court noted the nature of the crime, a home

invasion, where “people are at home and people kick in [their] doors with guns”

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which is “a frightening thing and . . . is just short of capital murder, because if

somebody in the home does something wrong, that’s when people are shot.” The

court also considered appellant’s prior criminal history involving firearms and/or

violence. Such evidence provided the trial court with a proper factual basis to deny

community supervision and sentence appellant to eight years’ confinement. See

Jackson, 680 S.W.2d at 814. We overrule appellant’s first point of error.

      Appellant’s second point of error contends that an eight-year sentence for his

first felony offense constituted a violation of his constitutional right against cruel

and unusual punishment under the Eighth Amendment to the United States

Constitution.     Specifically, he complains that his sentence is grossly

disproportionate to the seriousness of the offense. The State argues that appellant’s

failure to timely object in the trial court waived any error and further asserts that,

even if properly preserved for our review, appellant’s claim does not pass the

proportionality test threshold nor contains the sufficient information for a full

proportionality analysis.

      The Eighth Amendment to the United States Constitution requires that a

criminal sentence be proportionate to the crime for which a defendant has been

convicted. Solem v. Helm, 463 U.S. 277, 290 (1983); Noland v. State, 264 S.W.3d

144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). To preserve for

appellate review a complaint that the sentence is grossly disproportionate and,

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therefore, cruel and unusual punishment, a defendant must have presented the trial

court with a timely request, an objection, or motion stating the specific grounds for

the ruling desired. See TEX. R. APP. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113,

120 (Tex. Crim. App. 1996) (noting that defendant waived any error because he

presented his argument for first time on appeal); Wynn v. State, 219 S.W.3d 54, 61

(Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that defendant’s failure to

object to his life sentence of imprisonment as cruel and unusual punishment

waived error). When the court asked if he had anything to say before sentence was

pronounced, appellant did not respond. Once it had been pronounced, appellant

lodged no objection to the sentence in the trial court. Nor did he raise the issue in a

motion for new trial. Absent presentation of his proportionality complaint to the

trial court, appellant has failed to preserve the complaint for our review. See TEX.

R. APP. P. 33.1(a)(1)(A); Noland, 264 S.W.3d at 151 (where appellant made no

objection to trial court about punishment assessed or asserted complaint in motion

for new trial, appellant failed to preserve Eighth Amendment complaint for

review). We overrule appellant’s second point of error.

                                     Conclusion

      We affirm the trial court’s judgment.




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                                               Jim Sharp
                                               Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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