      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00453-CR



                                 Jerry Allen Hatton, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 59378, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Jerry Allen Hatton pleaded guilty without an agreed punishment recommendation

from the State to the felony offense of aggravated robbery. See Tex. Penal Code Ann. § 29.03(a)(2)

(West 2003) (a person commits offense of aggravated robbery if he commits robbery and uses or

exhibits a deadly weapon). After a pre-sentence investigation report was completed and a sentencing

hearing with testimony was conducted, the trial court found appellant guilty and assessed punishment

at fifteen years’ confinement. In two issues on appeal, appellant contends that (i) the sentence

imposed constituted cruel and unusual punishment and (ii) the evidence is insufficient to support his

guilty plea. For the reasons that follow, we affirm the judgment of conviction.

               On March 26, 2006, appellant entered a convenience store in Bell County and

demanded money from the store cashier. At the sentencing hearing, the cashier testified that

appellant was holding something “shiny” that looked like a knife and announced that he was “here
to rob you.” When the employee opened the cash register and showed appellant the small amount

of money in the register, appellant stated he was “not going to jail for this.” Appellant then

demanded any money the employee had on her person. As appellant took the money, a customer

entered the store. Appellant warned the employee to “stay cool” or he would kill her. Appellant was

apprehended a short time later with the amount of money that had been taken on his person.

Appellant pleaded guilty to aggravated robbery.

               In his first issue, appellant contends that his punishment constitutes cruel and

unusual punishment in violation of his constitutional rights “under the facts of this case.” See

Tex. Const. art. I, § 13. He urges that the sentence is greatly disproportionate because, although the

indictment states that he used a deadly weapon to commit the robbery, to wit, a knife or pliers, the

employee was not injured and appellant did not intend to use the pliers to hurt her. He also admitted

the crime to the police and apologized to the employee when he was apprehended. He has serious

medical conditions and a learning difficulty.

               Appellant pleaded guilty to aggravated robbery, a first degree felony.             See

Tex. Penal Code Ann. § 29.03(b). The legislatively determined punishment range for an individual

adjudged guilty of a first degree felony is “any term of not more than 99 years or less than five

years.” Id. § 12.32(a) (West 2003). Thus, appellant’s sentence is within the statutory limits

prescribed by the Texas legislature. When punishment assessed by a judge or jury is within the

statutory limits of a constitutional statute, it is not cruel and unusual within the constitutional

prohibitions. E.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Mullins v. State,

208 S.W.3d 469, 470 (Tex. App.—Texarkana 2006, no pet.); Benjamin v. State, 874 S.W.2d



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132, 135 (Tex. App.—Houston [14th Dist.] 1994, no pet.). Nor do we infer that appellant’s sentence

is grossly disproportionate to the offense.        See Fluellen v. State, 71 S.W.3d 870, 873

(Tex. App.—Texarkana 2002, pet. ref’d) (citing Solem v. Helm, 463 U.S. 277, 290 (1983)). Because

appellant’s punishment is well within the statutory range and there is no evidence in the record

showing how the sentence imposed for aggravated robbery is disproportionate with sentences

imposed against defendants for the same crime in this or other jurisdictions, we overrule appellant’s

first issue. See id.

                In his second issue, appellant urges that the evidence is insufficient to support his

guilty plea. See Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005). Although he admitted to the

commission of the robbery and that he used and exhibited a deadly weapon in the commission of the

offense, appellant contends that the testimony at the sentencing hearing following his plea “cast

doubt on the evidence that the pliers used” by appellant were a deadly weapon. Appellant entered

a plea of guilty after a proper admonishment by the trial court, and he executed a written waiver and

a judicial confession containing the deadly weapon finding. He does not contend that he was

improperly admonished. At the hearing, appellant testified that he was just carrying the pliers and

was not trying to scare the employee with them. Because he had no intention of harming the

employee and later apologized to her, he contends that the evidence supporting the deadly weapon

finding was insufficient. Even if appellant preserved this issue,1 it is without merit.


        1
         The State urges that appellant waived both issues on appeal because he did not object to
the sentence as being cruel and unusual or to the deadly weapon finding and he never asked to
withdraw his plea of guilty to the deadly weapon charge. A motion for new trial is an appropriate
way to preserve these types of claims, and the record does not show that a motion was filed. E.g.,
Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.—Texarkana 2005, no pet.).

                                                  3
                It was appellant who identified the object in his hand as pliers and who claimed

he did not threaten the employee. The employee, however, testified at the hearing that the object

appeared to be a knife and that appellant twice threatened to kill her. The indictment alleged

that the deadly weapon was either a knife or pliers. Appellant testified in response to questioning

by the State:


       Q:              And you held the knife-like object at her while you were commanding
                       her to give you money, correct?

       A:              I didn’t—I didn’t demand her. I mean, I just—I told her, you know.

       The Court:      He’s asking you if you held a knife-like object in your hand. So listen
                       to his question.

       A:              Okay. Pliers, yes.

       Q:              Knife-like object, correct?

       A:              Pair of pliers.

       Q:              And you had them to scare her, correct?

       A:              Uh-huh. No. I wasn’t trying to scare her with them.

       Q:              Why did you have them in your hand if you weren’t trying to scare
                       her with them?

       A:              I had them in my hand when I walked in. Raised them up to her but
                       I never—I mean that’s what I had in my hands.

       Q:              You were going to perform some type of mechanical thing in there
                       with those pliers?

       A:              No, sir.

       Q:              Were you going to tighten any screws or nuts or anything within that
                       store?

                                                 4
       A:              No, sir.

       Q:              You walked in and used those pliers to threaten a victim to give you
                       money, correct?

       A:              Yes, sir.


Apart from appellant’s admission, the testimony at the hearing showed that the object was a deadly

weapon by the manner of its use or attempted use. The employee testified to the threat made to her

and her fear of the “shiny” object in appellant’s hands. She also testified that she was placed in

imminent fear of death or bodily injury. She testified that she was “too scared to do anything,”

including hit the store’s panic button to alert security. Although she eventually returned to work

part-time near her home, she was too scared to return to her job as a convenience store cashier. She

suffered chest pains and nightmares and would see appellant’s face when she closed her eyes. Even

apart from his own admissions, the evidence was sufficient to support appellant’s plea of guilty.

See Beasley v. State, 634 S.W.2d 320, 322 (Tex. Crim. App. 1982) (victim’s testimony was

sufficient evidence that she was placed in fear of imminent death or bodily injury). We overrule

appellant’s second issue.

               Having overruled appellant’s issues, we affirm the judgment of conviction.




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                                          __________________________________________

                                          Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: March 27, 2007

Do Not Publish




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