Opinion filed October 25, 2018




                                                 In The


              Eleventh Court of Appeals
                                             __________

                                       No. 11-16-00325-CR
                                           __________

                   RONTRELL SHELTON YOUNG, Appellant
                                                    V.
                           THE STATE OF TEXAS, Appellee


                           On Appeal from the 35th District Court
                                   Brown County, Texas
                              Trial Court Cause No. CR24131


                            MEMORANDUM OPINION
          Rontrell Shelton Young entered an open plea of guilty to two counts of
aggravated assault with a deadly weapon. The trial court sentenced Appellant to
confinement for a term of twenty years in the Institutional Division of the Texas
Department of Criminal Justice for each count, to run concurrently. 1 In a single


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           We note that there is only one written judgment of conviction in this cause. It pertains to both
counts.
issue on appeal, Appellant contends that his sentence constituted cruel and unusual
punishment. We affirm.
                                 Background Facts
      Appellant entered an open plea of guilty to two counts of aggravated assault
with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a), (b) (West 2011).
Appellant executed a stipulation of evidence wherein he stipulated that he
“committed each and every act alleged therein” and that all facts alleged in the
indictment were correct. In Count I of the indictment, Appellant was charged with
intentionally, knowingly, or recklessly causing bodily injury to D.M. by shooting
him in the head with a firearm.          In Count II, Appellant was charged with
intentionally, knowingly, or recklessly causing bodily injury to X.M. by striking him
in the face with a firearm.
      The trial court conducted a hearing in which sixteen witnesses testified. The
testimony established that, on September 21, 2015, D.M., X.M., and another
coworker were doing lawn care for a customer when Appellant and three other men
exited a vehicle and approached D.M. in an aggressive manner. Appellant and the
three men accompanying him chased D.M. down and began beating, kicking, and
stomping him.
      During the fight, Appellant pulled out a pistol and pointed it at X.M.
Appellant then struck X.M. across the face with the firearm, causing it to discharge.
As a result, X.M. was burned by gunpowder, suffered temporary vision loss, and
was left with a permanent facial scar.
      After striking X.M. with the firearm, Appellant approached D.M., who was
lying on the ground. Appellant pointed the pistol at D.M., shot him in the head, and
then fled. D.M. was airlifted to Fort Worth for treatment. He avoided a fatal injury
by only a few inches, as the bullet just grazed his skull. The attack on D.M. and
X.M. took place in view of multiple witnesses, including a young child.
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      D.M. and X.M. both testified that, prior to the attack, neither of them knew
Appellant personally. Appellant testified that the attack was retaliatory as Appellant
believed that D.M. had previously beaten up one of Appellant’s codefendants and
had also tried to run another one off the road.
      Amber Boswell, an assistant director for the Brown County Community
Supervisions and Corrections Department, testified that Appellant had been placed
on community supervision for assault-family violence just twenty days prior to
Appellant’s assault of D.M. and X.M. Boswell further testified that, in addition to
having a criminal history in Caddo Parish, Louisiana, Appellant was also currently
facing pending charges for a separate aggravated assault with a deadly weapon and
for felony possession of marihuana.
      Boswell also testified that Appellant had previously admitted to being a
member of the “Rollin 60 Crips,” a criminal street gang. Even though Appellant
denied that he had ever been, or currently was, a member of the Crips, one of
Appellant’s codefendants, Marcus Phillips, testified to the contrary. Christopher
Wells, an officer with the Fort Worth Police Department gang unit, testified that
Appellant’s actions suggested Appellant was a current member of the Crips.
      At the conclusion of the hearing, the trial court found Appellant guilty and
sentenced him to confinement for twenty years for each offense, with the sentences
to be served concurrently. The trial court also made a deadly weapon finding.
                                      Analysis
      Appellant argues that his sentence is grossly disproportionate to the offense
and thus constitutes cruel and unusual punishment. In support of his argument,
Appellant points to his alleged lack of a substantial criminal history, the lighter
sentence received by his codefendant, and this State’s alleged proclivity for
imposing harsher sentences than other jurisdictions. Additionally, Appellant urges
that no one was seriously injured by his actions.
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      We note at the outset that Appellant did not object to his sentence, neither at
the time of sentencing nor in any post-trial motion, on any grounds, including the
grounds that he asserts on appeal. To preserve an error for appellate review, a party
must present a timely objection to the trial court, state the specific grounds for the
objection, and obtain a ruling. TEX. R. APP. P. 33.1(a). Therefore, Appellant has
failed to preserve error and has waived his complaint on appeal. See id.; Curry v.
State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (Eighth Amendment issues are
forfeited if not raised in the trial court); Solis v. State, 945 S.W.2d 300, 301–02 (Tex.
App.—Houston [1st Dist.] 1997, pet. ref’d) (holding that a claim of a grossly
disproportionate sentence in violation of Eighth Amendment was forfeited by failure
to object).
      Notwithstanding Appellant’s waiver, we conclude that Appellant’s sentence
did not constitute cruel and unusual punishment. In reviewing a trial court’s
sentencing determination, “a great deal of discretion is allowed the sentencing
judge.” Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We will
not disturb a trial court’s decision as to punishment “absent a showing of abuse of
discretion and harm.” Id.
      The     Eighth    Amendment       prohibits    sentences    that   are    “grossly
disproportionate” to the offense for which the defendant has been convicted.
Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—Eastland 2001, pet. ref’d) (citing
Harmelin v. Michigan, 501 U.S. 957 (1991)). However, “[o]utside the context of
capital punishment, successful challenges to the proportionality of particular
sentences [will be] exceedingly rare.” Solem v. Helm, 463 U.S. 277, 289–90 (1983)
(alterations in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)).
When a sentence falls within the range of punishment provided by the legislature, it
is generally not grossly disproportionate to the offense committed. See, e.g.,
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). The statutory range
                                           4
of punishment for a second-degree felony is confinement “for any term of not more
than 20 years or less than 2 years.” PENAL § 12.33(a) (West 2011). Appellant does
not argue that his sentence is beyond the range the legislature has provided.
      Even if a sentence falls within the statutory punishment range, the sentence
may violate the Eighth Amendment if it is grossly disproportionate to either the
offense itself or sentences in other similar circumstances. See Bradfield, 42 S.W.3d
at 353–54. To evaluate the proportionality of a sentence, we must first compare the
gravity of the offense with the severity of the sentence. Id. When analyzing the
gravity of the offense, we examine the harm caused or threatened to the victim or
society and the culpability of the offender. See, e.g., Hooper v. State, No. 11-10-
00284-CR, 2011 WL 3855190, at *3 (Tex. App.—Eastland Aug. 31, 2011, pet.
ref’d) (mem. op., not designated for publication) (citing Solem, 463 U.S. at 291–92).
Only if the sentence is grossly disproportionate to the offense do we then compare
Appellant’s sentence with the sentences received for similar crimes in this
jurisdiction or sentences received in other jurisdictions. Bradfield, 42 S.W.3d at
353–54.
      Here, Appellant admitted to the acts alleged in the indictment—that he
intentionally, knowingly, or recklessly shot one victim in the head with a firearm
and intentionally struck another in the face with a firearm. While Appellant contends
that his actions did not cause any serious injury, Appellant narrowly avoided
inflicting a fatal wound on one victim and inflicted permanent injuries on the other.
Additionally, while it is true that Appellant’s codefendant received a lighter
sentence, Appellant was the only party who brought and used a firearm.
Furthermore, though Appellant argues that he did not have a criminal history
significant enough to warrant such a sentence, Appellant had multiple previous
convictions, as well as other pending felony offenses, at the time of sentencing.


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        Considering the nature of Appellant’s offenses in this cause, and given the
injuries sustained by the victims along with Appellant’s criminal history and use of
a firearm, we are unable to conclude that the trial court abused its discretion in
imposing twenty-year sentences of confinement for Appellant. We conclude that
Appellant’s twenty-year sentences are not grossly disproportionate to the offenses.
Because we have concluded that the sentences are not grossly disproportionate to
the offenses, we do not compare Appellant’s sentences to sentences imposed for
similar crimes in Texas or to sentences imposed for the same crimes in other
jurisdictions. See Solem, 463 U.S. at 292. Appellant’s sole issue is overruled.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


October 25, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals 2;
and Wright, S.C.J.3

Willson, J., not participating.




        2
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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