                                                                       PD-0599-15
                                                     COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                     Transmitted 6/11/2015 3:38:25 PM
                                                       Accepted 6/11/2015 4:59:18 PM
                                                                       ABEL ACOSTA
                         PD-0599-15                                            CLERK

       IN THE TEXAS COURT OF CRIMINAL APPEALS
   _________________________________________________

               THE STATE OF TEXAS
                         APPELLANT

                            vs.

              MARK TWAIN SIMPSON
                 APPELLEE-PETITIONER
   _________________________________________________

             FROM THE FIFTH COURT OF APPEALS
                CAUSE NO. 05-14-00618-CR

      APPEAL FROM CRIMINAL DISTRICT COURT NO. 4
       OF DALLAS COUNTY, CAUSE NO. F13-56596-K
   _________________________________________________

           APPELLEE’S PETITION FOR
            DISCRETIONARY REVIEW
   _________________________________________________

BRUCE ANTON                       SORRELS, UDASHEN & ANTON
State Bar No. 01274700            2311 Cedar Springs, Suite 250
ba@sualaw.com                     Dallas, Texas 75201
                                  214-468-8100 (office)
BRETT ORDIWAY                     214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com               Counsel for Appellee/Petitioner




     June 11, 2015
              Ground for Review

Whether Simpson produced evidence or pointed
to evidence in the trial record that substantiated
his legal claim in his motion for new trial




                        2
                                         Table of Contents

Ground for Review ...................................................................................... 2

Index of Authorities .................................................................................... 4

Identity of Parties and Counsel ................................................................. 5

Statement Regarding Oral Argument ....................................................... 6

Statement of the Case and Procedural History ........................................ 7

Argument .................................................................................................... 9

   Simpson produced evidence or pointed to evidence in the trial record
   that substantiated his legal claim in his motion for new trial ............. 9

      I. Proceedings before the district court ............................................ 9

      II. Arguments before the court of appeals ...................................... 11

      III. The court of appeals’s holding .................................................... 13

      IV. The court of appeals was wrong ................................................. 14

Prayer ........................................................................................................ 15

Certificate of Service ................................................................................ 17

Certificate of Compliance ......................................................................... 17

Appendix ................................................................................................... 18




                                                        3
                                       Index of Authorities

Cases

Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.]
  2007, pet. ref’d) ...................................................................................... 15
State v. Herndon, 214 S.W.3d 901 (Tex. Crim. App. 2007) ........ 10, 12, 13
State v. Simpson, No. 05-14-00618-CR, 2015 WL 1811862 (Tex. App.—
  Dallas Apr. 20, 2015) ........................................................................ 8, 13
State v. Spigel, No. 05-13-00314-CR, 2014 WL 1022530, at *1 (Tex.
  App.—Dallas 2014, no pet.) .................................................................. 15
State v. Stewart, 282 S.W.3d 729, 735-36 (Tex. App.—Austin 2009, no
  pet.) ........................................................................................................ 13


Statutes

TEX. PEN. CODE § 12.32(a) ........................................................................ 14
TEX. PEN. CODE § 12.42(b) ........................................................................ 14
TEX. PEN. CODE § 29.02 .............................................................................. 7
TEX. PEN. CODE § 29.03 .............................................................................. 7




                                                        4
                  Identity of Parties and Counsel

For Appellant the State of Texas:

     GEORGE LEWIS
          Guilty plea and motion for new trial counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
     133 North Riverfront Boulevard
     Dallas, Texas 75207

     MICHAEL R. CASILLAS
         Appellate counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

For Appellee/Petitioner Mark Twain Simpson:

     BRUCE ANTON
          Guilty plea and motion for new trial counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs, Suite 250
     Dallas, Texas 75201

     BRUCE ANTON
     BRETT ORDIWAY
         Appellate counsel of record
     SORRELS, UDASHEN & ANTON

Trial court:

     THE HONORABLE DOMINIQUE COLLINS
     CRIMINAL DISTRICT COURT NUMBER 4




                                    5
         Statement Regarding Oral Argument

Oral argument is waived.




                           6
           Statement of the Case and Procedural History

       Simpson was indicted on June 26, 2013, for robbery, enhanced to a

first-degree felony by a previous conviction for aggravated robbery. See

TEX. PEN. CODE §§ 29.02 & 29.03; (CR: 18). He entered an open plea of

guilty to the district court on March 13, 2014, which then on April 3,

2014, sentenced him to 25 years’ imprisonment. (RR2: 5; RR3: 20); (CR:

56-60).

       Simpson filed a motion for new trial alleging that his sentence

“constitute[d] a violation of the [Eighth Amendment] prohibition

against cruel and unusual punishment.” (CR: 64). After conducting a

hearing on the matter, the court granted Simpson a new punishment

trial. (RR4: 26). The State then timely filed notice of appeal. (CR: 72-

73).

       Before the Fifth Court of Appeals, the State complained that the

district court abused its discretion in granting Simpson’s motion for new

trial. (St. Br. at 15). Simpson responded that the State’s analysis em-

ployed the wrong standard of review, and that, under the correct stand-

ard, the district court properly exercised its discretion. The court of ap-

peals agreed the State used the wrong standard, but nonetheless con-


                                    7
cluded the trial court abused its discretion in granting Simpson’s mo-

tion for new trial. State v. Simpson, No. 05-14-00618-CR, 2015 WL

1811862 (Tex. App.—Dallas Apr. 20, 2015). Accordingly, the court va-

cated the order and reinstated the trial court’s judgment. Id. No motion

for rehearing was filed.




                                   8
                               Argument

           Simpson produced evidence or pointed to evidence
           in the trial record that substantiated his legal
           claim in his motion for new trial

                                !   !   !

 I.   Proceedings before the district court

      Simpson was sentenced to 25 years’ imprisonment for pawning a

PlayStation video game system that two other men stole in the course of

a robbery. (RR3: 10-14, 18-19). At his sentencing hearing, the State had

introduced evidence that, 30 years prior, when Simpson was a teenager,

he had been involved in a one-month rash of 16 robberies. (RR3: 7-8).

And after being released from prison in 1999, he had committed various

minor offenses: failing to report his work address to his probation of-

ficer; cashing a check forged by a coworker; and stealing $20 worth of

screws from a hardware store. (RR3: 32-33).

      In light of the minor magnitude of both the crime at issue here

and Simpson’s recent criminal history, as well as the remoteness of his

otherwise 30-year-old criminal history, Simpson filed a motion for new

trial alleging that his sentence “constitute[d] a violation of the [Eighth

Amendment] prohibition against cruel and unusual punishment.” (CR:


                                    9
64). Specifically, Simpson argued his sentence was “so far outside the

societal norms which govern the assessment of punishment” because it

“violate[d] the proportionality tenant of the Eighth Amendment” and

because it was “disproportionate when viewed in light of the types of

sentences on [sic] the co-defendant,” and for the typical robbery defend-

ant. (CR: 64-66).

     The district court conducted a hearing on the motion on May 1,

2014, at which it inquired as to Simpson’s co-defendant’s sentence and

then heard testimony from Simpson’s mother and sister covering his

criminal history. (RR4: 4, 7-22). Simpson argued that a more appropri-

ate sentence would be treatment for his drug addiction and strict su-

pervision in the home. (RR4: 23-24). The State, pointing to this Court’s

opinion in State v. Herndon, 214 S.W.3d 901 (Tex. Crim. App. 2007), ar-

gued that the court did not have the authority to grant Simpson’s mo-

tion unless the original proceeding was not in accordance with the law,

and that here, the only asserted basis—that Simpson’s punishment was

cruel and unusual—was unsupported. (RR4: 5-7). The court ultimately

granted Simpson a new punishment trial, remarking that it felt a “long




                                   10
probation” to be the more proportionate sentence, and the State then

timely filed notice of appeal. (RR4: 26); (CR: 72-73).

II.   Arguments before the court of appeals

      The State on appeal purported to raise two issues, but it was real-

ly just one: that the district court abused its discretion in granting

Simpson’s motion for new trial. (St. Br. at 15). Specifically, the State

argued that no reasonable view of the record could support the district

court’s ruling that Simpson’s sentence was unconstitutionally dispro-

portionate, and that the proceedings were otherwise conducted in ac-

cordance with the law. (St. Br. at 15-16).

      Simpson agreed that, aside from his disproportionate sentence,

the brief proceedings (the hearings on his guilty plea and sentencing)

were otherwise conducted in accordance with the law. He never argued

otherwise. But as to the constitutionality of his sentence, Simpson

urged the court of appeals to reject the State’s request to disregard the

district court’s discretion. For, under the correct standard of review—as

opposed to the novel one suggested by the State—it is clear the district

court properly exercised its discretion.




                                    11
      To that end, before the court of appeals the State lobbied the court

to disregard the district court’s discretion in granting Simpson’s motion

for new trial because Simpson did not meet his “duty of showing by a

preponderance of the competent evidence that his 25-year sentence had

constituted a grossly disproportionate punishment.” (St. Br. at 16).

Simpson urged the court that that was not required—a district court

does not abuse its discretion in granting a motion for new trial if the de-

fendant simply: (1) articulates a valid legal claim in his motion for new

trial; (2) produces evidence or points to evidence in the trial record that

substantiated his legal claim; and (3) shows prejudice to his substantial

rights under the harmless error standards of the Texas Rules of Appel-

late Procedure. (Ap. Br. at 13-14) (citing Herndon, 215 S.W.3d at 909).

And in Simpson’s case, as the State did not refute, he articulated a valid

legal claim: his sentence was cruelly and unusually disproportionate.

(Ap. Br. at 17). Further, Simpson produced and pointed to evidence that

substantiated his claim, and in light of the district court’s statement

upon hearing that evidence that it felt probation was the appropriate

sentence, Simpson’s 25-year sentence undeniably affected his substan-

tial rights. (Ap. Br. at 17-18).


                                    12
III.   The court of appeals’s holding

       The court of appeals agreed with Simpson that the standard for

determining whether the trial court abused its discretion was whether

Simpson: (1) articulated a valid legal claim in his motion for new trial;

(2) produced evidence or pointed to evidence in the trial record that sub-

stantiated his legal claim; and (3) showed prejudice to his substantial

rights under the harmless error standards of the Texas Rules of Appel-

late Procedure. State v. Simpson, No. 05-14-00618-CR, 2015 WL

1811862, *2 (Tex. App.—Dallas 2015) (citing Herndon, 215 S.W.3d at

909). It further agreed Simpson articulated a valid legal claim in argu-

ing that his sentence was cruelly and unusually disproportionate. Id.

(citing State v. Stewart, 282 S.W.3d 729, 735-36 (Tex. App.—Austin

2009, no pet.) (“Stewart’s amended motion for new trial as to punish-

ment alleged that the sentence imposed in this cause was dispropor-

tionate in comparison to other similarly situated defendants. The State

does not deny that this was a valid legal claim on which to base a mo-

tion for new trial in the interest of justice”)). But the court of appeals re-

jected Simpson’s assertion that he produced and pointed to evidence




                                     13
that substantiated his claim. Id. at *3. The court did so because it con-

cluded Simpson’s sentence was not seriously flawed:

      In light of Simpson's role in the robbery and his significant
      prior adjudicated and unadjudicated offenses, his twenty-five
      year sentence is not grossly disproportionate to the crime.
      Although Simpson did not need to show reversible error as a
      matter of law, nothing reflects the first punishment trial was
      “seriously flawed.” In fact, under the habitual offender pun-
      ishment statute, Simpson's sentence fell well within the
      statutory range of five to ninety-nine years or life.

Id. (citing TEX. PEN. CODE §§ 12.32(a), 12.42(b)). Accordingly, the court

held the trial court abused its discretion in granting Simpson's motion

for new trial without addressing whether Simpson showed prejudice to

his substantial rights. Id.

IV.   The court of appeals was wrong

      Simpson urges this Court that the court of appeals was wrong.

Simpson’s 30-year-old crimes, committed as a teenager, and for which

he already served a lengthy sentence, were far too remote to support

such a harsh sentence here. His drug addiction—evidence of which was

introduced at the hearing on Simpson’s motion for new trial—

warranted treatment, not incarceration. And Simpson produced and

pointed to evidence that substantiated his claim: his minimal role in the

instant offense, the datedness and circumstances of his previous crimes,

                                   14
and his co-defendant’s and others’ sentences. Cf. State v. Spigel, No. 05-

13-00314-CR, 2014 WL 1022530, at *1 (Tex. App.—Dallas 2014, no pet.)

(“Appellee relied solely on the written motion [for new trial]; therefore

he did not substantiate his claim that the evidence was insufficient to

support a guilty verdict.”). That Simpson’s sentence was within the sen-

tencing range is not dispositive. See, e.g., Ajisebutu v. State, 236 S.W.3d

309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (noting that

only “generally” will a sentence within the statutory range of punish-

ment for an offense be held not cruel or unusual under the Constitution

of either Texas or the United States.). Here, Simpson produced evidence

that substantiated his claim that his sentence was cruel and unusual.

                                 Prayer

       Accordingly, Simpson respectfully requests this Court to grant

this petition so that it may reverse the decision of the court of appeals

and remand this case to that court to consider whether Simpson showed

prejudice to his substantial rights under the harmless error standards

of the Texas Rules of Appellate Procedure. See Herndon, 215 S.W.3d at

909.

                                  Respectfully submitted,


                                    15
     /s/ Bruce Anton
BRUCE ANTON
Bar Card No. 01274700
ba@sualaw.com


     /s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com

SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Attorneys for Appellee/Petitioner




 16
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellee’s Petition for Discretionary Review was electron-
ically served to the Dallas County District Attorney’s Office and the
State Prosecuting Attorney on June 11, 2015.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
     this petition contains 1,370 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                                   17
Appendix




   18
Vacate and Reinstate and Opinion Filed April 20, 2015




                                          Court of Appeals
                                                          S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-14-00618-CR

                                         THE STATE OF TEXAS, Appellant

                                                                   V.

                                         MARK TWAIN SIMPSON, Appellee

                               On Appeal from the Criminal District Court No. 4
                                            Dallas County, Texas
                                    Trial Court Cause No. F-1356596-K

                                         MEMORANDUM OPINION
                Before Justices Fillmore and Schenck1 and Chief Justice Thomas, Retired2
                               Opinion by Chief Justice Thomas (Retired)

          This State’s appeal challenges the trial court’s order granting Mark Twain Simpson a new

trial on punishment. We conclude the trial court abused its discretion in granting the motion.

Accordingly, we vacate the order and reinstate the trial court’s judgment.

                                                        BACKGROUND




     1
        Justice David Schenck succeeds Justice Michael O’Neill, a member of the original panel. Justice Schenck has reviewed the briefs and
record in this case. See TEX. R. APP. P. 41.1(a).
     2
       The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by
assignment.
       Simpson was charged with stealing a PlayStation and causing bodily injury to the owner,

Vidal Gilbert. The robbery was committed with two others, “Zelaya,” who pleaded guilty and

received a probated sentence, and Joseph Aguilar, who remained at large as of trial.

       Simpson waived a jury, pleaded guilty to the court, and also pleaded true to an

enhancement paragraph that alleged a 1984 aggravated robbery with a deadly weapon

conviction. He testified at the punishment hearing that, although he pleaded guilty, he did not

cause bodily injury to Gilbert as alleged in the indictment. Rather, he was “a party to th[e]

offense with [Zelaya and Aguilar].” According to Simpson, Zelaya and Aguilar went into

Gilbert’s home, took the PlayStation, and assaulted Gilbert; he drove the getaway car and

pawned the PlayStation. Asked about his criminal history, Simpson admitted he had sixteen prior

convictions for aggravated robbery and one conviction for burglary of a vehicle, all committed

in “a span of about a month” when he was a teenager. He received a twenty-five year sentence

for the robberies and a ten-year sentence for the burglary. He was paroled in 1999, but his parole

was revoked and he was imprisoned again until 2005. In 2012, he was arrested for theft of

property valued at “like $20” and forgery. He was convicted of theft and served “some county

jail time.” The forgery charge remained pending.

       Simpson’s mother testified he lived with her and her husband. She further testified she

and her husband are in poor health and dependent on Simpson for help.

       Asserting “penitentiary time” was not “merited,” Simpson’s counsel asked in closing

argument that the court “consider deferring probation.” The State responded that while this case

was “not the most egregious,” Simpson’s criminal history “sp[oke] for itself,” and Simpson

should be sentenced to prison. The trial judge, faced with a punishment range of five to ninety-

nine years or life because of the enhancement paragraph, assessed a twenty-five year sentence.

See TEX. PENAL CODE ANN. §§ 12.42(b) (West Supp. 2014) (enhancing second degree felony

                                               –2–
punishment to punishment for first degree felony upon showing of prior first, second, or third

degree felony conviction); 29.02(b) (West 2011) (robbery is second degree felony). The next

day, Simpson filed his motion for new trial, asserting the twenty-five year sentence violated “the

proportionality tenant of the Eighth Amendment” to the United States Constitution. Specifically,

he argued his participation in the offense was limited to driving the getaway car and “selling the

stolen property,” acts “indicat[ing] a snap misjudgment or a reaction to a particular situation.” He

further argued his sentence was disproportionate in light of his co-defendant’s probated sentence

and the probated or deferred sentences imposed on “many defendants.”

       At the hearing on Simpson’s motion, the trial judge asked whether Zelaya, the co-

defendant who received a probated sentence, had any prior convictions and what his role was in

the commission of the offense. The parties informed the judge Zelaya did not have a prior

criminal record and “was the one who actually went inside the property.” After hearing brief

argument from the State, the judge heard testimony from Simpson’s sister, who was present at

the punishment hearing but did not testify, and his mother.         These witnesses provided no

testimony concerning Simpson’s allegation of disproportionate punishment but, as explained by

Simpson’s counsel, were called because Simpson “has an issue which needs to be addressed

involving his drug usage.” Simpson’s counsel argued in closing that, in light of Simpson’s drug

usage, the trial judge should consider “a stair step process” beginning with a drug treatment

program and ending with “strict supervision” that would include a curfew. Counsel further

stated that “we have no problem” with incarceration if deemed appropriate. The State responded

that the sole issue before the court was whether the punishment hearing was “done according to

the law.” The State maintained it was and argued the motion should be denied. Asked by the

trial judge what would happen if she granted the motion, the State responded that it “would

proceed with a slow plea with a jury.” Although believing a jury trial on punishment was

                                                –3–
“risky,” the trial court granted Simpson’s motion, noting that “if punishment were up to [her,

she] would be inclined to put him on a long probation and if he messed up . . . send him away for

the rest of his life.”

                         STANDARD OF REVIEW AND APPLICABLE LAW

        A trial court may grant a new trial on any of the grounds specified in Texas Rule of

Appellate Procedure 21.3 or “in the interest of justice.” See TEX. R. APP. P. 21.3; State v.

Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014). “Justice” means “in accordance with the

law” and upon a showing that substantial rights were affected. See Thomas, 428 S.W.3d at 105.

We review a trial court’s order granting a new trial for abuse of discretion. Id. at 103. In

conducting our review, we view the evidence in the light most favorable to the trial court’s

ruling, defer to the court’s credibility determinations, and presume all reasonable fact findings in

support of the ruling have been made. Id. at 104. We will conclude the trial judge abused his

discretion if he acted “without reference to any guiding rules or principles,” that is, if he granted

the new trial for a non-legal or legally invalid reason or based on “mere sympathy, an inarticulate

hunch, or simply because he believes that the defendant is innocent or ‘received a raw deal.’” Id.

at 103-04 (quoting State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007)).

Conversely, we will generally conclude the trial court did not abuse its discretion where the

defendant (1) articulated a valid legal claim in his new trial motion; (2) produced evidence or

pointed to evidence in the trial record substantiating his legal claim; and (3) showed prejudice to

his substantial rights under the standards in Texas Rule of Appellate Procedure 44.2. Herndon,

215 S.W.3d at 909. The trial court may exercise its discretion in granting a new trial without a

showing of reversible error as a matter of law but only if the defendant has demonstrated his first

trial was “seriously flawed and the flaw adversely affected his substantial right to a fair trial.”

Id.

                                                –4–
           An allegation of disproportionate punishment is a valid legal claim. See State v. Stewart,

282 S.W.3d 729, 738 (Tex. App.—Austin 2009, no pet.). The concept of proportionality is

embodied in the Constitution’s ban on cruel and unusual punishment and requires that

punishment be graduated and proportioned to the offense.                                         See U.S. CONST. amend. VIII;

Graham v. Florida, 560 U.S. 48, 59 (2010). It is a narrow principle that “‘does not require strict

proportionality between crime and sentence’ but rather ‘forbids only extreme sentences that are

grossly disproportionate to the crime.”” Graham, 560 U.S. at 59-60 (quoting Harmelin v.

Michigan, 501 U.S. 957, 997, 1000-1001 (1991) (Kennedy, J., concurring in part and concurring

in judgment)). In determining whether a sentence is grossly disproportionate to the crime

committed, the court must judge the punishment in light of the harm caused or threatened to the

victim, the culpability of the offender, and the offender’s prior adjudicated and unadjudicated

offenses. See id. at 60; Culton v. State, 95 S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d). In the “rare” case when this comparison leads to an inference of gross

disproportionality, the sentence is then judged in light of sentences imposed upon other criminals

in the same jurisdiction and sentences imposed for the commission of the same crime in other

jurisdictions. Graham, 560 U.S. at 60. Generally, punishment assessed within the statutory

limits, including punishment enhanced pursuant to a habitual offender statute, is not excessive,

cruel, or unusual. See Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006).

                                                             DISCUSSION

           In two issues, the State asserts the court erred in granting Simpson’s motion because the

sentence was not grossly disproportionate to the offense committed and the punishment trial was

conducted in accordance with the law.3 We agree.


     3
       In his response brief, Simpson “agrees that aside from his disproportionate sentence, the brief proceedings (the hearings on his guilty plea
and sentencing) were otherwise conducted in accordance with the law.”



                                                                      –5–
       Because Simpson’s claim of disproportionate punishment is a valid legal claim, we turn

to whether the evidence substantiated his claim. See Herndon, 215 S.W.3d at 909; Stewart, 282

S.W.3d at 738. Viewed in the light most favorable to the trial court’s ruling, the record reflects

Simpson was one of three individuals who participated in a robbery. Although the victim was

injured, he was injured by one of Simpson’s co-defendants, not Simpson. The record further

reflects Simpson had seventeen prior felony convictions for offenses committed thirty years

earlier, a conviction for theft of property valued at “like $20,” and a pending forgery charge.

Measuring this evidence against Simpson’s twenty-five year sentence, we cannot conclude this is

one of the “rare” cases where gross disproportionality is inferred. See Graham, 560 U.S. at 60.

While Simpson might not have injured the victim, he pawned the PlayStation knowing it was

stolen and drove the getaway car. Additionally, while the seventeen prior felony convictions are

“dated,” sixteen of those convictions are for aggravated robbery—a crime of violence as a matter

of law—and all were committed within a span “of about a month.” See Jernigan v. State, 672

S.W.2d 280, 281 (Tex. App.-–Dallas 1984, no pet.) (“Violence is an inherent element of

aggravated robbery.”); see also TEX. PENAL CODE ANN. § 29.03 (West 2011). The theft and

forgery offenses, though non-violent crimes, were committed within the same year and shortly

before Simpson was arrested in this case. In light of Simpson’s role in the robbery and his

significant prior adjudicated and unadjudicated offenses, his twenty-five year sentence is not

grossly disproportionate to the crime.     See Ewing v. California, 538 U.S. 11, 30 (2003)

(concluding twenty-five years to life sentence for felony grand theft under California’s three

strikes law not grossly disproportionate). Although Simpson did not need to show reversible

error as a matter of law, nothing reflects the first punishment trial was “seriously flawed.” In

fact, under the habitual offender punishment statute, Simpson’s sentence fell well within the

statutory range of five to ninety-nine years or life. See TEX. PENAL CODE ANN. §§ 12.32(a)

                                               –6–
(West 2011), 12.42(b).    On the record before us, we conclude the evidence from the new trial

hearing does not substantiate Simpson’s claim. Accordingly, we need not judge his sentence in

light of sentences imposed on others. See Graham, 560 U.S. at 60.

       Because the evidence does not substantiate Simpson’s claim, the trial court abused its

discretion in granting Simpson’s motion. We sustain the State’s issues, vacate the trial court’s

order granting a new trial, and reinstate the judgment.




Do Not Publish
TEX. R. APP. P. 47
                                                     /Linda Thomas/
140618F.U05                                          LINDA THOMAS
                                                     CHIEF JUSTICE, RETIRED, ASSIGNED




                                               –7–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

THE STATE OF TEXAS, Appellant                      On Appeal from the Criminal District Court
                                                   No. 4, Dallas County, Texas
No. 05-14-00618-CR        V.                       Trial Court Cause No. F-1356596-K.
                                                   Opinion delivered by Chief Justice Thomas,
MARK TWAIN SIMPSON, Appellee                       Ret.; Justices Fillmore and Schenck
                                                   participating.

       Based on the Court’s opinion of this date, we VACATE the trial court’s order granting a
new trial and REINSTATE the judgment.


Judgment entered April 20, 2015.




                                             –8–
