                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

    JAMES ROBERT ELLIOT,                                  §
                                                                             No. 08-13-00035-CR
                 Appellant,                               §
                                                                                Appeal from the
    v.                                                    §
                                                                              432nd District Court
    THE STATE OF TEXAS,                                   §
                                                                           of Tarrant County, Texas
                 Appellee.                                §
                                                                                (TC#1289808D)
                                                          §


                                                  OPINION

         Appellant, James Robert Elliot, appeals his conviction of one count of theft of property of

an elderly person, having a value of more than $20,000 and less than $100,000.1 TEX. PENAL

CODE ANN. § 31.03(f) (West 2011). We affirm.

                                                BACKGROUND

         Shortly after their marriage, Appellant, his wife, and her two children began living with

his wife’s grandparents, Earl and Patsy Tow, in Saginaw, Texas. 2 While living with the Tows,

Appellant wrote approximately $60,000 worth of fraudulent checks from Patsy’s account. When

Earl confronted Appellant regarding the fraudulent checks, Appellant admitted to writing them

1
  This is a companion case to cause no. 08-13-00034-CR.
2
  As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the precedent of
that court. TEX. R. APP. P. 41.3.
and promised to pay back the money if Earl would agree not to involve the authorities. After

Appellant and his family moved out of the Tow’s home a few weeks later, Appellant returned to

collect some belongings. Shortly after Appellant left the house, Earl’s bank called and informed

him Appellant was there attempting to cash another check on the Tow’s account. Earl told the

bank not to cash the check.

       Appellant returned to the Tow’s home and denied to Earl that he had been at the bank or

had attempted to cash another check. Appellant then informed Earl that he needed $3,200 to pay

a ransom to drug dealers who had kidnapped his wife and her two children. Earl did not believe

Appellant’s story and denied his request for money. Appellant then pulled a gun and threatened

to kill Earl if he did not get down on his knees. Earl refused and Appellant fired a shot to the

right of where Earl stood. After Appellant told Earl again to get on his knees, Earl threw coffee

in Appellant’s face. Appellant fired a second shot, missing Earl again. Earl called 911, which

angered Appellant, and the two men wrestled over the gun. A third shot was fired, but missed

Earl’s leg. During the scuffle, Earl knocked the gun out of Appellant’s hand, and as the two

continued fighting, Appellant attempted to choke Earl. The police arrived, broke up the fight,

and arrested Appellant. Police recovered live .380 shells, spent .380 casings, a .380 handgun

from the scene, and ten zip ties from the inside of and lying around Appellant’s jacket.

       Appellant entered open pleas of guilty to the trial court on one count of aggravated

robbery with a deadly weapon in Cause Number 1274489D, and one count of theft of property of

an elderly person in Cause Number 1289808D. TEX. PENAL CODE ANN. §§ 29.03(a)(2); 31.03(f)

(West 2011). The property stolen in Cause Number 1289808D was valued between $20,000 and

$100,000.


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           At the punishment hearing on November 19, 2012, after the State sought a sentence of

fifty years, the trial court imposed concurrent thirty-year sentences in both cases, and Appellant

filed his notices of appeal that same day.3 After reviewing its imposition of sentence, the trial

court realized that it had erroneously imposed an improper sentence in excess of the permitted

twenty-year maximum punishment for the second-degree theft conviction. TEX. PENAL CODE

ANN. § 12.33 (West 2011). On the following day, November 20, 2012, the trial court called

Cause Number 1289808D and, in the presence of Appellant, his counsel, and counsel for the

State, specifically modified Appellant’s sentence to twenty years’ confinement for the theft

offense in Cause Number 1289808D, to run concurrently with the aggravated robbery sentence

in Cause Number 1274489D.

                                                   DISCUSSION

           Appellant raises two issues on appeal. Appellant filed a single brief in support of his

appeal of both Cause Numbers 1274489D and 1289808D.

           In Issue One, Appellant claims the trial court’s correction of the illegal sentence in Cause

Number 1289808D was not the proper remedy because it did not return Appellant to his pre-plea

position. See Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Crim.App. 1993), overruled on other

grounds by Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex.Crim.App. 1997). Appellant also

directs us to Ex parte Broadway, in which the Court of Criminal Appeals asserted that an open

plea may be considered a type of bargain when a defendant waives his rights in exchange for the

State’s consideration. Ex parte Broadway, 301 S.W.3d 694, 697 (Tex.Crim.App. 2009).

           Appellant entered an open plea to the court and did not have an agreement with the State

to recommend a reduced sentence, as in a plea bargain, or any “bargain of a different sort” with
3
    Appellant filed his motions for new trial on December 17, 2012.
                                                           3
the State as set out in Ex parte Broadway. See Ex parte Broadway, 301 S.W.3d at 697. Because

Appellant entered an open plea and did not enter into a plea bargain, he need not be returned to

his pre-plea position as the trial court retained jurisdiction to correct the illegal judgment. See

also Meineke v. State, 171 S.W.3d 551, 555, 558 (Tex.App. – Houston [14th Dist.] 2005, pet.

ref’d); Ware v. State, 62 S.W.3d 344, 353-54 (Tex.App. – Fort Worth 2001, pet. ref’d)(trial

courts have jurisdiction until the appellate record has been filed in the court of appeals).

       Appellant additionally asserts that he should be returned to his pre-plea position in both

this case and Cause Number 1274489D because both cause numbers were part of the same

“illegal” sentencing hearing. As Appellant has failed to present argument or authority in support

of this contention, it is waived. TEX. R. APP. P. 38.1(i); see Republic Underwriters Ins. Co. v.

Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004)(when appellate issue is unsupported by

argument or lacks citation to record or legal authority, nothing is presented for review).

       Appellant filed a post-brief letter of authorities citing Texas Code of Criminal Procedure

Article 42.09, section 1 and State v. Aguilera, in support of his contention that the trial court was

not authorized to modify his sentence in Cause Number 1289808D on the day after the

assessment of his initial sentence because his sentence commenced on the day it was

pronounced. TEX. CODE CRIM. PROC. ANN. art. 42.09, § 1 (West Supp. 2014); State v. Aguilera,

165 S.W.3d 695, 698 (Tex.Crim.App. 2005). We disagree with Appellant’s contention and find

Appellant’s reliance upon Aguilera to be misplaced. Aguilera involved the timely modification

of an authorized sentence imposed on the same day that the initial sentence was imposed before

the trial court adjourned for the day. See Aguilera, 165 S.W.3d at 696, 698. In Aguilera, the

Court of Criminal Appeals differentiated the Aguilera facts from those presented in Harris. v.


                                                  4
State, wherein the Court determined that a trial court’s second attempt to orally sentence a

defendant violated Double Jeopardy principles. See Harris v. State, 153 S.W.3d 394, 395-96

(Tex.Crim.App. 2005). As the Court of Criminal Appeals noted, the issue in Harris was not

whether the written judgment of the trial court was false or in error. Id. at 395. Rather, in

Harris, the trial court had failed to specifically find the enhancements presented by the State to

be true when it pronounced its original sentence, resulting in the trial court’s imposition of an

authorized sentence for an un-enhanced offense. Id. at 395-96. Consequently, the Court of

Criminal Appeals determined that the trial court’s second sentencing of Harris on the day

following its original oral pronouncement of an authorized sentence violated Harris’ rights under

the Double Jeopardy Clause. Id. at 397.

       In Harris, the Court of Criminal Appeals differentiated the facts there from those of

Cooper v. State, where the trial court had erroneously sentenced Cooper to four years for an

offense which carried a minimum five-year sentence. Cooper v. State, 527 S.W.2d 898, 898

(Tex.Crim.App. 1975). Three days after the initial sentence was imposed, the trial court held a

hearing and, in the presence of Cooper, his counsel, and the State, noted that it had erroneously

sentenced Cooper below the statutory minimum sentence. Id. The trial court then assessed a

valid punishment, entered judgment, and pronounced sentence.          Id.   Because the original

sentence was void, the Court of Criminal Appeals determined “the trial court acted properly and

within [its] authority in assessing a lawful punishment at the subsequent hearing, and in

pronouncing sentence based on such punishment.” Id. at 899.

       A trial or appellate court which otherwise has jurisdiction over a criminal conviction may

always notice and correct an illegal sentence.        Mizell v. State, 119 S.W.3d 804, 806


                                                5
(Tex.Crim.App. 2003)(also observing that there has never been anything in Texas law that

prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal

sentence). The State notes that the proceedings in the trial court are suspended only after the

record on appeal has been filed in the appellate court, unless otherwise provided by law or the

Rules of Appellate Procedure.        TEX. R. APP. P. 25.2(g).      The trial court modified its

pronouncement of the illegal sentence in Cause Number 1289808D by pronouncing a legal

sentence in the presence of Appellant, his counsel, and the State on November 20, 2012, which

was one day after the initial sentence was pronounced and before the appellate record was filed.

The appellate record does not show that the trial court was otherwise without jurisdiction to act

in this manner. We conclude the trial court’s modification of Appellant’s void sentence in Cause

Number 1289808D was proper and occurred while the trial court had jurisdiction of the case.

Issue One is overruled.

       In Issue Two, Appellant claims his sentence in this case constitutes cruel and unusual

punishment, violating his constitutional rights.

       As a general rule, punishment is not cruel and unusual if it falls within the range of

punishment established by the Legislature. Jackson v. State, 680 S.W.2d 809, 814

(Tex.Crim.App. 1984); Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App. 1983); Dale v.

State, 170 S.W.3d 797, 799 (Tex.App. – Fort Worth 2005, no pet.). A narrow exception to this

general rule is recognized when the sentence is grossly disproportionate to the offense. Dale,

170 S.W.3d at 799, citing Harmelin v. Michigan, 501 U.S. 957, 1004–05, 111 S.Ct. 2680, 2706–

07, 115 L.Ed.2d 836 (1991)(Kennedy J., concurring); Solem v. Helm, 463 U.S. 277, 290–92, 103

S.Ct. 3001, 3009–11, 77 L.Ed.2d 637 (1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.),


                                                   6
cert. denied, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992).

       Generally, sentences falling within the prescribed statutory limitations are not considered

cruel and unusual punishment within the meaning of either the United States or Texas

Constitution. Harris, 656 S.W.2d at 486; Kim v. State, 283 S.W.3d 473, 475 (Tex.App. – Fort

Worth 2009, pet. ref’d); Dale, 170 S.W.3d at 799. Only in exceedingly rare cases may a

sentence within the statutorily-prescribed range be proven to be out of proportion to the crime

and violate the Eighth Amendment. Solem, 463 U.S. at 288-90, 103 S.Ct. at 3008–09. The

objective criteria for assessing such claims include the (1) gravity of the offense and the

harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction,

and (3) the sentences imposed for commission of the same offense in other jurisdictions. Id. at

292, 103 S.Ct. at 3010–11.

       After the Supreme Court’s decision in Harmelin, a question arose whether the Eighth

Amendment did or did not prohibit disproportionate sentences in non-death penalty cases. The

Fifth Circuit concluded in McGruder that proportionality analysis survived Harmelin but Solem

did not. McGruder, 954 F.2d at 316. The Fifth Circuit determined that Harmelin required a

reviewing court to initially make a threshold comparison of the gravity of the defendant’s

offenses against the severity of his sentence. Id. Only if the reviewing court finds that the

sentence is grossly disproportionate to the offense will it consider the remaining Solem factors

and compare the sentence received to (1) sentences for similar crimes in the same jurisdiction

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

       Theft of property of an elderly person, when the value of the property is more than

$20,000 and less than $100,000, carries a statutory punishment range of two to twenty years.


                                                 7
TEX. PENAL CODE ANN. § 12.33 (West 2011). The twenty-year sentence assessed by the trial

court in this case falls within the statutory range of punishment. Therefore it is generally not

considered to amount to cruel or unusual punishment. Harris, 656 S.W.2d at 486; Kim, 283

S.W.3d at 475.

       In support of his contention that his sentence may be categorized as cruel and unusual

despite falling within the statutory guidelines, Appellant notes that he had no prior criminal

history, no one was seriously injured during his commission of the offenses, Earl had expressed a

willingness to allow him to repay the theft amount, and he suffered from post-traumatic stress

disorder at the time of the offense.

       We will first consider the threshold comparison of the gravity of the offense against the

severity of the sentence. The gravity of the offense is determined by evaluating the harm caused

or threatened and the offender’s culpability. Dale, 170 S.W.3d at 800.

       Appellant entered an open plea to the indicted offense of theft of an elderly person,

whereby Appellant unlawfully appropriated, by acquiring or otherwise exercising control of

more than $60,000 from Earl, his wife’s elderly grandfather. We observe that $60,000 is not an

insubstantial sum of money. Earl refrained from initially reporting the theft offense to the police

because Appellant promised to pay back the stolen money. Earl cared for his wife who suffered

from Alzheimer’s disease and had permitted Appellant to live in his home. The trial court noted

that Earl was a family member who had helped Appellant. In sentencing Appellant, the trial

court stated that it considered those factors as well as Appellant’s military record and the fact

that Appellant suffers from post-traumatic stress disorder, but noted that “overall, the

circumstances of this particular case are heinous and egregious.”


                                                8
       The twenty-year sentence assessed by the trial court is the maximum permitted

punishment for this offense. TEX. PENAL CODE ANN. § 12.33 (West 2011). However, under the

facts of this case, we are unable to conclude that the sentence is grossly disproportionate to the

severity of the offense. Consequently, it is unnecessary to consider the remaining Solem factors.

Issue Two is overruled.

                                        CONCLUSION

       The trial court’s judgment is affirmed.


                                             ANN CRAWFORD McCLURE, Chief Justice
September 30, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating

(Do Not Publish)




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