                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO.    2-09-251-CR
                                 NO.    2-09-252-CR
                                 NO.    2-09-253-CR
                                 NO.    2-09-254-CR
                                 NO.    2-09-255-CR
                                 NO.    2-09-256-CR


ANDRE G. MILES                                                       APPELLANT

                                            V.

THE STATE OF TEXAS                                                        STATE

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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

      I. INTRODUCTION

      Appellant Andre G. Miles appeals from six convictions for aggravated robbery

with a deadly weapon. In two issues, Miles complains that his sentences constitute

cruel and unusual punishment in violation of the United States and Texas


      1
           See Tex. R. App. P. 47.4.
constitutions and that the presentence investigation report (PSI) erroneously

included a recommendation that his punishment include a term of imprisonment.

                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In January and February of 2009, Miles committed a series of robberies at

various convenience stores and a CVS Pharmacy in Tarrant County. He committed

most of the robberies with another man, Michael Hutchins. Miles pleaded guilty in

each case and admitted to using or exhibiting a deadly weapon. The trial court

deferred sentencing until a PSI could be prepared.

      At the sentencing hearing, the State and Miles both stated that they had no

objections to the PSI. The State called several employees of the stores that Miles

had robbed to testify about the robberies. Miles called his brother W illis to testify on

his behalf. W illis testified that after Miles got out of prison for unrelated charges in

March of 2008, Miles had tried to improve his life and to provide for his newborn child

but had lost his job and had difficulty finding a new job. Miles’s mother Deborah

testified that Miles had trouble dealing with his father’s death, but on cross-

examination, Deborah acknowledged that Miles’s criminal history had begun years

before his father’s death. Miles testified that he had never physically touched any

of the victims of his aggravated robberies, that he had no intention of hurting anyone,

that the robberies had been Hutchins’s ideas, and that Miles had participated in the

robberies to “feed a drug habit.”




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       The PSI included two versions of the robberies—the police version and Miles’s

version. The report also included victim impact statements from the employees on

duty at the time of the robberies. After detailing Miles’s arrest history and personal

history, the report recommended that “the defendant be sentenced to the Institutional

Division of the Texas Department of Criminal Justice for a period of time deemed

appropriate by the Court.”

       At the conclusion of the sentencing hearing, the trial court sentenced Miles to

sixty-five years’ imprisonment in each case, with the sentences to run concurrently.

                         III. C RUEL AND U NUSUAL P UNISHMENT

       In his first issue, Miles argues that his sixty-five-year sentence in each case

is disproportionate and constitutes cruel and unusual punishment based on his

circumstances and the circumstances surrounding each offense. Specifically, he

argues that the sentences are tantamount to life sentences because he was twenty-

nine years old at the time of his trial and will not be eligible for parol for at least thirty

years, that no one was injured during the robberies, that he was remorseful in his

testimony at the punishment hearing, that he was addicted to crack cocaine when

he committed the offenses, and that he was cooperative throughout the presentence

investigation process. The State argues that Miles did not preserve this issue for




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review and that, alternatively, Miles’s sentences are not disproportionate and did not

constitute cruel and unusual punishment. 2

                             A. Preservation of Error

      To preserve a complaint for our review, a party must 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); Mosley v. State, 983 S.W .2d 249, 265 (Tex.

Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Generally, an

appellant may not complain about his sentence for the first time on appeal. Curry

v. State, 910 S.W .2d 490, 497 (Tex. Crim. App. 1995); Mercado v. State, 718

S.W .2d 291, 296 (Tex. Crim. App. 1986); see Kim v. State, 283 S.W .3d 473, 475

(Tex. App.—Fort W orth 2009, pet. ref’d) (holding that appellant who did not object

to his sentence at the punishment hearing or complain about it in a motion for new

trial failed to preserve his Eighth Amendment complaint for appeal).

      Here, Miles did not object to his sentences at the punishment hearing, but the

record shows that he timely filed a motion for new trial, complaining that his

sentence is excessive and constitutes cruel and unusual punishment. Although he

did not cite any constitutional provisions in his motion for new trial, we will assume

that Miles preserved his Eighth Amendment issue for appeal and will address the



      2
        Miles agrees with the State that he did not preserve this issue for appeal,
but he argues that we should consider it in the interest of justice.

                                          4
merits of his argument. 3 See Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983

S.W .2d at 265; see also Acosta v. State, 160 S.W .3d 204, 211 (Tex. App.—Fort

W orth 2005, no pet.) (holding motion for new trial properly preserved Eighth

Amendment complaint for appeal).

          B. Sentences Not Cruel and Unusual or Disproportionate

      W e review a sentence imposed by a trial court for an abuse of discretion. See

Jackson v. State, 680 S.W .2d 809, 814 (Tex. Crim. App. 1984). Generally, a

sentence within the statutory range of punishment for an offense will not be held

cruel or unusual. Hill v. State, 493 S.W .2d 847, 849 (Tex. Crim. App. 1973) (holding

that seventy-five-year sentence was not cruel or unusual because it was within

statutory range); Baldridge, 77 S.W .3d at 893. The United States Supreme Court

announced a narrow exception in Solem v. Helm, in which the court helds that

criminal sentences must be proportionate to the crime and that even a sentence

within the statutorily prescribed range may violate the Eighth Amendment. 463 U.S.

277, 290, 103 S. Ct. 3001, 3009 (1983).

      In conducting an Eighth Amendment proportionality analysis, we first make a

threshold comparison of the offense against the severity of the sentence to



      3
        Miles did not argue in his motion for new trial or on appeal that the Texas
constitution provides broader or greater protection than the United States
Constitution, and consequently, we will address this issue under only the United
States Constitution. See Moore v. State, 935 S.W .2d 124, 128 (Tex. Crim. App.
1996), cert. denied, 520 U.S. 1219 (1997); Baldridge v. State, 77 S.W .3d 890, 893
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

                                          5
determine if the sentence is grossly disproportionate to the offense.           See id.;

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849

(1992); Moore v. State, 54 S.W .3d 529, 542 (Tex. App.—Fort W orth 2001, pet.

ref’d). If we determine that the sentence is grossly disproportionate to the offense,

we must then compare the sentence received to sentences for similar crimes in this

jurisdiction and sentences for the same crime in other jurisdictions. See Solem, 463

U.S. at 292, 103 S. Ct. at 3011; McGruder, 954 F.2d at 316; Moore, 54 S.W .3d at

542.

       Here, Miles pleaded guilty to six aggravated robberies, all first-degree felonies.

See Tex. Pen. Code Ann. § 29.03(b) (Vernon 2005).              The statutory range of

punishment for a first degree felony offense is five to ninety-nine years’ or life

imprisonment and a fine not to exceed $10,000. Id. § 12.32 (Vernon 2005). Miles’s

sixty-five-year sentences are within the statutory range, and consequently, his

sentences are not cruel and unusual punishment under the Eighth Amendment

unless they are grossly disproportionate to the offenses. See McGruder, 954 F.2d

at 316; Moore, 54 S.W .3d at 542. Comparing the gravity of the offenses against the

severity of his sentences, based on the record before us and in light of the nature

and sheer volume of the offenses and of Miles’s prior criminal history, we hold that

his sentences are not grossly disproportionate to the offenses committed. See

Solem, 463 U.S. at 290, 103 S. Ct. at 3009; Ajisebutu v. State, 236 S.W .3d 309, 313

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Moore, 54 S.W .3d at 542–43.


                                            6
Accordingly, we hold that the trial court did not abuse its discretion in its sentencing.

See Jackson, 680 S.W .2d at 814. W e overrule Miles’s first issue.

                      IV. P RESENTENCE INVESTIGATION R EPORT

      In his second issue, Miles argues that the PSI’s recommendation that he be

confined for some period of time was improper. He argues that article 42.12, §

9(a)—which provides that “[i]t is not necessary for the [PSI] contain a sentencing

recommendation”—implies         that   a   PSI   should    not   make    a   sentencing

recommendation. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon 2005).

The State argues that Miles did not preserve this issue for review and that,

alternatively, the PSI recommendation was not improper.

      By affirmatively stating at the sentencing hearing that he had no objection to

the PSI, Miles waived his complaint for appeal. See Tex. R. App. P. 33.1(a)(1);

Mosley, 983 S.W .2d at 265; Jones v. State, 962 S.W .2d 158, 167 (Tex. App.—Fort

W orth 1998, no pet.). Moreover, this court has held that a PSI may include a

sentencing recommendation. See Burns v. State, No. 02-09-00137-CR, 2010 W L

144350, at *1 (Tex. App.—Fort W orth Jan. 14, 2010, no pet.) (mem. op., not

designated for publication); Burchfield v. State, 02-08-00435-CR, 2009 W L 2462511,

at * 2 (Tex. App.—Fort W orth Aug. 13, 2009, no pet.) (mem. op., not designated for

publication) (noting that because article 42.12, section 9(a) makes a sentencing

recommendation optional, it cannot be improper for a PSI to include such

recommendation). W e overrule Miles’s second issue.


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                               V. C ONCLUSION

      Having overruled both of Miles’s two issues, we affirm the trial court’s

judgment.

                                                SUE W ALKER
                                                JUSTICE

PANEL: DAUPHINOT, W ALKER, and MEIER, JJ.

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

DELIVERED: April 29, 2010




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