                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00216-CR
         ______________________________


       DERAN DARCELL PEOPLES, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 35603-B




      Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Moseley
                                  MEMORANDUM OPINION

       A jury found Deran Darcell Peoples guilty of one count of aggravated robbery (TEX . PENAL

CODE ANN . § 29.03 (Vernon 2003)), three counts of robbery (TEX . PENAL CODE ANN . § 29.02

(Vernon 2003)), and one count of burglary of a habitation (TEX . PENAL CODE ANN . § 30.02(c)(2)

(Vernon 2003)). He was sentenced to twenty years' imprisonment on the aggravated robbery charge

and fifteen years' imprisonment on each of the other three charges, all to run concurrently.

       Peoples appeals, complaining that the evidence was both factually and legally insufficient

to sustain his conviction and claiming, further, that the sentences he received were disproportionate

to the offenses of which he was convicted.

FACTS

       Each of the charges arise from an event which occurred in Longview, Gregg County, Texas,

December 29, 2006. At that time, David (sometimes called Jay or Jeremy) Baker, Holly Croxton,

and Charles Parker were all visiting with Norman Hagler in Hagler's duplex apartment, where they

had settled in to share a few beers and watch television. The four had all formerly been

acquaintances or friends in high school; Hagler and Croxton were then currently in a dating

relationship and Parker often stayed for days at a time, sleeping on the couch.

       During the evening, a knock was heard at the rear door of the residence, and Hagler answered

the knock. After he exchanged words with the visitor, Hagler related to the others that the person

at the door was asking for someone whom Hagler did not know, a circumstance that Baker described



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as a little weird. This apparently made some of the occupants a bit edgy because after this, Hagler

and Parker went into the bedroom of the duplex and retrieved two pistols, Parker putting a pistol on

a table beside him, and Hagler apparently taking another into the kitchen.

       Not long after this, the rear door of the duplex burst open and three masked assailants (two

black males and one Caucasian female) rushed in. According to Baker, one of them said, "Don't

move," and according to Croxton, they shouted, "Give us all your money and this is not a joke."

Chaos erupted and it is difficult to tell the exact chronology of events. Hagler, who had gone into

the kitchen just before the intrusion, almost immediately turned to find one of the assailants pressing

a pistol to his temple and screaming a demand for money. Hagler wrestled the man to the ground.

Parker grabbed the gun beside him. Gunshots almost immediately rang out and a hail of bullets flew,

Hagler estimating that there were at least fifteen to twenty shots fired. Croxton ran to the bedroom,

locked the door, climbed in the closet, and covered herself with clothes. Baker dived to the floor and

crawled behind a bar. Then, in the words of Hagler, "[I]t just happened so quick, they all run off and

then it's dead silence and everything cut off and they were gone, and Charlie [Parker] was hit."

       With the volley of bullets which pierced the air of the duplex, amazingly, only two bullets

hit human flesh. Parker was seriously injured with a single shot to the abdominal area.1 Another

bullet hit one of the assailants. For reasons not explained at trial, after placing an emergency 9-1-1

       1
         Parker was hospitalized for about two weeks, receiving some eighty units of blood. The
bullet had gone through his sciatic nerve, severing the nerve serving his left leg, and damaged his
aorta. At trial, almost two years later, Parker was still forced to use a cane to walk and continued to
suffer extreme pain.

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call, the occupants of the duplex took the guns remaining in the house and restored them to their

previous site under the bed in the bedroom. None of the occupants of the duplex could describe the

assailants other than to indicate that there were two black men and one white woman. Parker could

remember nothing at all of the incident, but testified as to his debilitating injuries sustained by the

gunshot wound.

       Within a short time after the emergency 9-1-1 operator received the call concerning the above

events and requesting an ambulance for Parker, Longview police were notified that a dead body had

been discovered beside an automobile parked in the parking lot at the Hidden Hill Apartments, only

about one-fourth of a mile from Hagler's duplex.

       The resulting investigation showed the body to be that of George Sanders, killed by a wound

inflicted by a bullet from a .45 caliber gun, the same caliber gun used by Parker during the attack on

the duplex. Also in the bloody interior of the automobile were a partially-crushed A&W root beer

can and a .38 caliber pistol. Tests revealed that the pistol taken from the car was the same one fired

at Hagler's apartment by the assailants, the blood on the side of the root beer can bore Peoples's

thumb print,2 and the bullet which killed Sanders was fired from the gun used by Parker during the

attack on the Hagler duplex.

       Over a month after the incident and after he heard that he was being sought by the authorities,

Peoples contacted the police and, after having been provided with the requisite warnings, consented



       2
           Peoples's fingerprints were already on file with the police department.

                                                   4
to a taped interview. In the taped interview which was played for the jury, Peoples admitted having

been present with Sanders at Hagler's duplex on the night of the shooting. However, his story varied

substantially from that of the occupants of Hagler's duplex in that he denied ever having entered the

apartment or having made any demands on the occupants. According to Peoples, he had been riding

around in a car with Sanders (whom Peoples characterized as his "home boy" and with whom he

often spent the night) and smoking marihuana. The two encountered a white girl (whose name

Peoples indicated that he did not remember) at a party and the three of them decided to restock their

marihuana. The girl indicated that she knew a place where marihuana could be bought, so they got

into Sanders's car, the girl directing them to Hagler's duplex. Peoples said that he had money in his

pocket and expected to purchase the drugs. After Sanders drove the car behind the duplex, they

exited the car and the girl led, followed in line by Sanders and Peoples to the rear door of the duplex.

As they stepped up to the open rear door, the girl entered the door and Sanders pulled out a pistol,

stepped through the back door, and grabbed one of the occupants of the duplex, who was standing

near the door. Peoples (who steadfastly maintained that he "never made it to the door sill" and never

entered the duplex) looked through the doorway and saw an occupant of the duplex, who was sitting

on a couch, reach under the couch upon which he was sitting and withdraw a pistol. When shots

rang out immediately after that, Peoples instantly ran off through the woods behind the duplex,

hurrying back to the Hidden Hills apartments, where Sanders lived. There, he discovered Sanders's




                                                   5
dead body in the parking lot beside the white car in which they had earlier been riding together.

Peoples himself called the police to report the dead body.

CLAIM OF FACTUAL INSUFFICIENCY AND LEGAL INSUFFICIENCY OF THE
EVIDENCE

       When both the legal and factual sufficiency of the evidence are challenged, we must first

determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922

S.W.2d 126, 133 (Tex. Crim. App. 1996). Legally sufficient evidence supporting a conviction exists

if the court, after reviewing the evidence in the light most favorable to the prosecution, determines

that a rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Clewis, 922 S.W.2d at 132–33. All of the

evidence is reviewed, but evidence that does not support the conviction is disregarded. See, e.g.,

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). If the legal sufficiency challenge

is sustained, then a judgment of acquittal must be rendered. Clewis, 922 S.W.2d at 133.

       If the evidence is legally sufficient to support the verdict, we then proceed with a factual

sufficiency review. Id. In our factual sufficiency review, we evaluate all the evidence without

employing the prism of "in the light most favorable to the prosecution." Id. at 129. We consider all

of the evidence, comparing evidence that tends to prove the existence of disputed facts with evidence

that tends to disprove such facts. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

We should set aside the verdict only when the factual finding is so against the great weight and

preponderance of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 135. In


                                                   6
doing so, we must be mindful that the jury is the sole judge of the weight and credibility of witness

testimony. Santellan, 939 S.W.2d at 164. Although a factual sufficiency review authorizes an

appellate court, to a very limited degree, to act as a "thirteenth juror," the appellate court must

nevertheless give the jury's verdict a great degree of deference. Steadman v. State, 280 S.W.3d 242,

246 (Tex. Crim. App. 2009) (citing Watson v. State, 204 S.W.3d 404, 416–17 (Tex. Crim. App.

2006)).

          The Texas Court of Criminal Appeals has determined that our review of both factual

sufficiency and legal sufficiency should be examined under the principles of review for a

hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

A hypothetically correct charge accurately promulgates the law, is authorized by the indictment, does

not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and

adequately describes the particular offense for which the defendant was tried. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997).

          Using the hypothetically correct jury charge analysis, we first look at the things that the State

was obligated to prove under the three robbery charges as they pertain to Peoples's actions against

Hagler, Croxton, and Baker, each in violation of Section 29.02 of the Texas Penal Code. Since the

analysis would be the same for each of these charges (except as to the identity of the victim), they

are examined together. The State needed to show that (1) Peoples, acting either alone or as a party




                                                     7
(2) during the course of a theft (3) intentionally or knowingly (4) placed Hagler, Croxton, and Baker

in fear of imminent bodily injury or death.

       Applying the hypothetically correct jury charge analysis to the aggravated robbery charge as

it pertains to his actions against Parker in violation of Section 29.03 of the Texas Penal Code, it was

necessary for the State to prove that (1) Peoples, acting either alone or as a party (2) during the

course of a theft (3) intentionally, knowingly, or recklessly (4) caused bodily injury to Parker, and

(5) the injury to Parker was a serious bodily injury.

       Proceeding to the burglary charge, under the hypothetically correct jury charge analysis, we

find that in order for the State to prove its charge that Peoples was guilty of violating Section

30.02(c)(2) of the Texas Penal Code, it was incumbent on the State to show that (1) Peoples,

(2) without the effective consent of the owner, (3) entered (4) a habitation (5) with the intent to

commit (or committed or attempted to commit) a felony other than felony theft.

       The jury was instructed on the law of parties.

       The testimony of the three occupants of the duplex who could remember the incident

established affirmatively that the duplex was the residence or habitation of Hagler, that the assailants

stormed the place demanding money, that at least one of the assailants was armed, that each of the

occupants was terrified, that Parker was seriously wounded by gunfire, and that at least Sanders and

the white girl accompanying Sanders and Peoples entered the duplex without the consent of the

occupants.



                                                   8
       Peoples's interview affirmed that entry was made into the duplex by at least two of the three

people in his group, that Sanders pulled a gun and made demands, and that gunfire erupted.

Peoples's sole argument in his defense was that he was unaware that any robbery was planned by

Sanders and/or the white girl accompanying them and that Peoples neither entered the duplex nor

handled a weapon.

       The jury could infer Peoples's intent to participate with Sanders in the illegal activity from

the circumstances which they heard described. They chose to disbelieve his avowals of surprise that

had Sanders produced a gun from apparent nothingness.

       A rational trier of fact could have easily found the essential elements of each of the offenses

beyond a reasonable doubt. The factual findings necessary to support the verdicts are not so against

the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly,

the evidence was both legally sufficient and factually sufficient to sustain the verdict of the jury.

CLAIM OF DISPROPORTIONATE SENTENCING

       Texas courts have traditionally held that so long as the punishment assessed is within the

range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or

unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here, Peoples's

sentences on all of the charges fall within the ranges set by law.3 However, that single test does not

       3
        Aggravated robbery is a first-degree felony (TEX . PENAL CODE ANN . § 29.03); robbery is
a second-degree felony (TEX . PENAL CODE ANN . § 29.02); and burglary of a habitation is a first-
degree felony (TEX . PENAL CODE ANN . § 30.02(c)(2)). A first-degree felony is punishable by
imprisonment for life or for any term of not more than ninety-nine years or less than five years and/or

                                                  9
end the inquiry. A prohibition against grossly disproportionate punishment survives under the

Eighth Amendment to the United States Constitution apart from any consideration of whether the

punishment assessed is within the range established by the Legislature. U.S. CONST . amend. VIII;

see Solem v. Helm, 463 U.S. 277, 290 (1983); Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J.,

plurality op.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.—Texarkana 1999, no pet.); Lackey

v. State, 881 S.W.2d 418, 420–21 (Tex. App.—Dallas 1994, pet. ref'd); see also Ex parte Chavez,

213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (describing this principle as involving a "very

limited, 'exceedingly rare,' and somewhat amorphous" review).

       Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity of

the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes

in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other

jurisdictions. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the viability of

the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin,

but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.

1992); Lackey, 881 S.W.2d at 420–21. In light of Harmelin, the test has been reformulated as an

initial threshold comparison of the gravity of the offense with the severity of the sentence, and then,



a fine of not more than $10,000.00. TEX . PENAL CODE ANN . § 12.32 (Vernon 2003). A second-
degree felony is punishable by imprisonment for any term of not more than twenty years or less than
two years and/or a fine of not more than $10,000.00. TEX . PENAL CODE ANN . § 12.33 (Vernon
2003).


                                                  10
only if that initial comparison created an inference that the sentence was grossly disproportionate to

the offense should there be a consideration of the other two Solem factors: (1) sentences for similar

crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.

McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.—Texarkana 2006,

no pet.); Lackey, 881 S.W.2d at 420–21.

        Rather than these relevant factors, Peoples's sole arguments on appeal that the sentence

received by him was disproportionate were: (1) that although Peoples was twenty-seven years old,

he had never been convicted of a felony; (2) Peoples expressed remorse during his taped interview

that one of the victims had been injured so severely; (3) that Peoples was not the "shooter" who had

inflicted the injury; and (4) that Peoples claimed ignorance that Sanders, his "home boy," intended

to commit any crime.

        Although Peoples filed a motion for new trial wherein he included the claim of

disproportionate sentencing, he presented no evidence to that effect. As a prerequisite to presenting

a complaint for appellate review, the record must show that the complaint was made to the trial court

and that the trial court either ruled or refused to rule on that complaint. TEX . R. APP . P. 33.1(a). The

complaint must be sufficiently specific to make the trial court aware of the grounds of the complaint.

Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). A motion for new trial is but a

pleading and the allegations therein do not prove themselves, but must be proved. Zaragosa v. State,

588 S.W.2d 322 (Tex. Crim. App. [Panel Op.] 1979); Mackey v. State, 480 S.W.2d 720 (Tex. Crim.



                                                   11
App. 1972). The burden of proof is on the movant in a motion for new trial. No proof was provided

to the trial court. Therefore, even had the burden been met at the appellate level to show the

imposition of a disproportionate sentence, this claim is not adequately presented for appeal.4

       We affirm.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:        July 30, 2009
Date Decided:          July 31, 2009

Do Not Publish




       4
         We note that even if Peoples's arguments of disproportionate sentencing made on appeal had
been presented to the trial court and an adverse ruling been obtained, the arguments fall very short
of the requirements to demonstrate that Peoples received disproportionate sentences.

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