                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 02-12-00631-CR


DERRICK CHARLES BROWN                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Derrick Charles Brown pleaded guilty to engaging in organized

criminal activity through the underlying offense of aggravated assault with a

deadly weapon, namely his hands and feet, for which the trial court sentenced

him to confinement for life.   In his sole point, Appellant argues that the trial

court’s sentence was grossly disproportionate to his offense, thus contravening



      1
      See Tex. R. App. P. 47.4.
the constitutional prohibition against cruel and unusual punishment in both the

Texas constitution and the United States Constitution. We affirm.

                                Background Facts

      On January 1, 2012, Appellant and Terry Dunlap stopped at a gas station

to purchase cigarettes. Appellant had been drinking heavily at a nightclub that

evening. Dunlap and Wayman Henderson began arguing over whether Dunlap

had scuffed Henderson’s shoe. The argument escalated, and Appellant, Dunlap,

and Henderson began exchanging blows. An unidentified man entered the fray

and knocked Henderson unconscious with a strike to the head. Henderson fell to

the ground.

      The three men repeatedly punched and kicked Henderson while he was

unconscious. Appellant continued to strike Henderson, even after Dunlap and

the third assailant had stopped. Bystanders were able to pull Appellant from

Henderson several times, but Appellant repeatedly returned to punch Henderson

and “stomp on his head.” At one point, Appellant was pulled off the victim but

returned over a minute later to assault Henderson again. A surveillance camera

captured Appellant’s attack on Henderson, which lasted about five minutes, and

the video was played for the trial court.

      Henderson suffered severe injuries and was in a coma for some time. At

the time of sentencing, about eleven months after the incident, he was receiving

physical, occupational, and speech therapies. Henderson still displayed signs of

impaired ability to speak and reason.


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      Appellant pleaded guilty to engaging in organized criminal activity through

the underlying offense of aggravated assault with a deadly weapon. See Tex.

Penal Code Ann. §§ 22.02(a)(2) (West 2011), 71.02(a)(1) (West Supp. 2013).

Appellant also entered a plea of “true” to the enhancement paragraph alleging a

prior felony conviction, 2 thereby raising his punishment range to confinement for

not less than fifteen years or more than ninety-nine years. See id. § 12.42(c)(1)

(West Supp. 2013). Further, Appellant pleaded “true” to the allegation that he

used a “deadly weapon” in the course of the offense. See id. § 22.02(a)(2).

      Appellant had prior convictions including robbery causing bodily injury,

unlawful possession of a firearm by a convicted felon, possession of marihuana

and possession of cocaine. At sentencing, Appellant also admitted to being a

gang member and having sold drugs. The trial court found Appellant guilty, the

enhancement allegation true, the deadly weapon allegation true, and sentenced

him to confinement in the Institutional Division of the Texas Department of

Criminal Justice for life. Appellant then filed this appeal.

                                     Discussion

      A disproportionate sentence claim must be preserved for appellate review.

Tex. R. App. P. 33.1(a)(1); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim.

App. 1986) (en banc); Thompson v. State, 243 S.W.3d 774, 777 (Tex. App.—Fort

Worth 2007, pet. ref’d). To preserve a complaint for our review, a party must

      2
       The State waived a second enhancement paragraph alleging that
Appellant was a habitual offender.


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have presented to the trial court a timely request, objection, or motion that states

the specific grounds for the desired ruling if they are not apparent from the

context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers

v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013); Sample v. State, 405

S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court

must have ruled on the request, objection, or motion, either expressly or

implicitly, or the complaining party must have objected to the trial court’s refusal

to rule. Tex. R. App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex.

Crim. App. 2011). A reviewing court should not address the merits of an issue

that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473

(Tex. Crim. App. 2010) (op. on reh’g); Sample, 405 S.W.3d at 300.

         At the sentencing hearing, the trial court orally announced its assessment

of a life sentence and asked, “Any legal reason why I shouldn’t sentence him?”

Appellant’s attorney responded, “No, your Honor.” Appellant made no motion for

new trial or otherwise presented his objection to his life sentence to the trial

court.     Appellant has therefore forfeited this point.    See Tex. R. App. P.

33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

         Even if Appellant had preserved his point, it lacks merit.     Appellant’s

sentence falls within the statutory range for his offense. See Tex. Penal Code

Ann. §§ 12.42(c)(1) (West Supp. 2013), 22.02(a)(2), (b) (West 2011),

71.02(a)(1), (b) (West Supp. 2013). The trial court’s discretion to impose any

punishment within the prescribed range is essentially “unfettered.”       Ex parte


                                          4
Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006). Punishment imposed

within the statutory range is generally not subject to challenge for excessiveness.

See Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.)

(“Generally, punishment assessed within the statutory limits is not excessive,

cruel, or unusual punishment.”).     Further, nothing in the record shows that

Appellant’s punishment, in light of his criminal history 3 and the horrific and

protracted violence of the assault, was grossly disproportionate to the crime so

as to violate the Eighth Amendment of the United States Constitution. See U.S.

Const. amend. VIII; Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006

(1983); McGruder, 954 F.2d at 315–17 (setting forth the analysis for

proportionality of punishment); Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—

Fort Worth 2001, pet. ref’d) (adopting the McGruder analysis for claims of

violations of the Eighth Amendment). We overrule Appellant’s sole point.




      3
         Appellant was a gang member and a repeat offender. His past offenses
included robbery causing bodily injury, unlawful possession of a firearm by a
convicted felon, and possession of crack cocaine. See McGruder v. Puckett, 954
F.2d 313, 316–17 (5th Cir. 1992) (gauging the proportionality of a sentence in
light of previous convictions for crimes of violence).


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                               Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.

                                             PER CURIAM

PANEL: GABRIEL, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 20, 2014




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