                                  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.

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       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
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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

                                            4
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.).


      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
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       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.




affiliation and significant criminal history provide sufficient distinctions between this case
and those.

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