                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00347-CR


GEREMIE GERMAINE JONES                                           APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                      MEMORANDUM OPINION1

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                                  I. Introduction

      In one issue, Appellant Geremie Germaine Jones appeals his sentence for

aggravated robbery with a deadly weapon, claiming that forty-five years’

confinement is an excessive and disproportionate punishment. We affirm.




      1
      See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      In October 2010, at around 3:00 a.m., Jones went to a Waffle House,

pulled out a gun, pointed it at a waitress, Wanda McDaniel, and demanded that

she give him all of the money in the cash register. McDaniel gave Jones the

money, and he left the restaurant. James Smith, one of the cooks, dialed 911

and then followed Jones and confronted him. Jones pointed his gun at Smith

and said, “I’ll shoot you. Don’t you follow me. I’ll shoot you.” Shortly thereafter,

the police apprehended Jones.

      After Jones pleaded guilty to aggravated robbery with a deadly weapon,

McDaniel testified during the punishment phase that she feared for her life during

the robbery, and the trial court admitted State’s Exhibit 24, the Waffle House

surveillance video of the incident, and allowed the State to publish it to the jury.

The State also introduced evidence to show that Jones had a gang affiliation;

had been classified in the county jail as a high-risk offender; had been involved in

a physical altercation with a deputy while in jail, which had been videotaped and

which was published to the jury; had threatened three deputies; and had been

arrested for public intoxication, possession of crack cocaine, theft, and

possession of a knife. Jones stipulated to his prior convictions for possession of

a prohibited weapon, possession of a controlled substance of less than one

gram, criminal trespass, assault causing bodily injury, and theft.

      During Jones’s case-in-chief, Dr. Mansoor Mian, a psychiatrist with Tarrant

County Mental Health and Mental Retardation, testified that Jones had attempted

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suicide several times; suffered from emotional turmoil due to family problems;

suffered from depression, irritability, anger, and impulsive behavior; heard voices;

had been prescribed various anti-depressants and anti-psychotic drugs; had

been treated in more than one state mental hospital; and could be helped with

proper care. During the State’s cross-examination, Dr. Mian agreed that Jones’s

mental health records showed that one of his treating physicians had ruled out

bipolar disorder and showed that Jones had a history of abusing alcohol,

cocaine, and marijuana. On redirect, he noted that other portions of his medical

records indicated that Jones had been diagnosed as bipolar.

      Jones testified that he was not a bad guy but that he had done some bad

things. Jones gave his childhood history of foster care, described hearing voices,

and said that he could accept the consequences of his actions. He also testified

that he had taken the gun from a family member; that he did not know whether

the gun was loaded; that he was high at the time of the incident; and that the

voices, brought on by drugs, told him to do it. Jones admitted to using crack

cocaine while awaiting his trial, with his most recent use being a week before

trial. He also admitted that he paid for crack cocaine with his disability check and

that he had threatened the deputies while he was incarcerated. However, he

denied having a gang affiliation.

      Jones’s older brother testified that Jones had acted “crazy” since age four

and that Jones’s father had been paranoid schizophrenic.           Jones’s mother

testified that all five of her children had been removed from her because of her

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drug use and neglect of them, that she used drugs while pregnant with all of her

children, and that she stopped using drugs after going through rehabilitation

while incarcerated. She acknowledged that of all five children, Jones was her

only adult child committing aggravated robbery.

      The jury found Jones guilty of aggravated robbery as instructed by the trial

court and then assessed his punishment at forty-five years’ confinement. This

appeal followed.

                            III. Preservation of Error

      In his sole issue, Jones argues that his sentence is excessive and

disproportionate to the actions for which he was convicted and to his past record

and future prospects for rehabilitation. Specifically, Jones complains that, in light

of the mitigation evidence that he presented, the punishment is disproportionate

for the offense and constitutes cruel and unusual punishment as prohibited by

the United States and Texas Constitutions. However, Jones did not object to his

sentence when it was imposed, and although he timely filed his motion for new

trial complaining of excessive and disproportionate punishment, the record does

not show that he presented this motion to the trial court. See Tex. R. App. P.

21.6, 33.1(a)(2); see also Means v. State, 347 S.W.3d 873, 874 (Tex. App.—Fort

Worth 2011, no pet.) (“Because Appellant did not object to his sentences when

they were imposed or present his motions for new trial to the trial court, he failed

to preserve his sentencing complaints for appellate review.”); Laboriel-Guity v.

State, 336 S.W.3d 754, 756 (Tex. App.—Fort Worth 2011, pet. ref’d) (same).

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Because Jones failed to preserve his sentencing complaint for our review, we

overrule his sole issue.2

                                 IV. Conclusion

      Having overruled Jones’s sole issue, we affirm the trial court’s judgment.



                                                    PER CURIAM

PANEL: MCCOY, WALKER, and MEIER, JJ.

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

DELIVERED: July 19, 2012




      2
       Even if Jones had preserved this complaint, however, punishment
imposed within statutory limits, as here, is generally not subject to a challenge for
excessiveness. See Kim v. State, 283 S.W.3d 473, 475–76 (Tex. App.—Fort
Worth 2009, pet. ref’d) (stating that subject only to a very limited, “exceedingly
rare,” and somewhat amorphous Eighth Amendment gross-disproportionality
review, a punishment that falls within the legislatively prescribed range, and that
is based upon the sentencer’s informed normative judgment, is unassailable on
appeal); see also Tex. Penal Code Ann. §§ 12.32, 29.03(b) (West 2011) (stating
that the sentencing range for a first-degree felony such as aggravated robbery
with a deadly weapon is imprisonment for life or for any term not more than
ninety-nine years or less than five years, as well as a fine not to exceed
$10,000).

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