                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00104-CR


LADARIUS DASHUN HICKS                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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        FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                                   OPINION

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      Appellant entered a negotiated plea of guilty to aggravated robbery with a

deadly weapon, a baseball bat, and, pursuant to the plea bargain agreement, the

trial court deferred adjudicating Appellant’s guilt and placed him on nine years’

community supervision.    Only five months later, the State filed a petition to

proceed to adjudication, alleging that Appellant had violated the terms and

conditions of his community supervision by committing the new offense of

criminal trespass, by using marihuana one time, and by failing to complete the
Theft Intervention Program. Upon Appellant’s pleas of not true to the allegations

of trespass and marihuana use and his plea of true to the failure to complete the

Theft Intervention Program, and after hearing evidence and argument, the trial

court granted the State’s petition to proceed to adjudication, convicted Appellant

of aggravated robbery with a deadly weapon, and sentenced him to fifteen years’

confinement.

       In his sole point, Appellant argues that the punishment was grossly

disproportionate     to   the   facts   of   his   community   supervision   violations,

contravening the constitutional prohibition against cruel and unusual punishment.

Not only was Appellant given the statutorily mandated opportunity for defendant

allocution, 1 he was also given the opportunity to argue the appropriate

punishment. He did not raise this complaint at either time. Finally, although

Appellant filed a motion for new trial, he did not raise this complaint in his motion.

Consequently, because Appellant was given every opportunity to raise his

sentencing complaint in the trial court but did not, we hold that he forfeited this

point. 2

       Even if Appellant had preserved his point, it lacks merit. At the time of the

underlying offense, Appellant was eighteen years old, did not own a car, and


       1
           See Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006).
       2
       See Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex.
Crim. App. 2012).



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rode the bus when he had the money to pay for the ticket. Appellant decided to

rob a pizza delivery person. Colluding with at least one other person, he called

the Pizza Hut and ordered a pizza. When the deliveryman arrived, Appellant

threatened him with a baseball bat and chased him as he ran away. At some

point, the deliveryman dropped the pizza, and Appellant picked it up.

      At the revocation hearing, a signed, voluntary use admission form in which

Appellant admitted using marihuana while on community supervision was

admitted in evidence.        The form was signed by Appellant and a community

supervision field officer.

      Additionally, a woman testified that she saw Appellant and some other

men standing in her father’s backyard. A neighbor told her some men were

trying to break into the home. When her father returned home, he discovered

that someone had broken out one of the kitchen windows facing the backyard.

      At the hearing, the trial court went to some lengths to allow Appellant to

argue for a low sentence and to explain the bases of the trial court’s rulings.

Appellant had lied to the trial court, and trial counsel for Appellant had

conscientiously made sure that Appellant corrected any lies or misstatements.

The trial court explained that there were ramifications to Appellant’s not testifying

truthfully. The trial court stated that Appellant’s lawyer “explain[ing] to [Appellant]

the significance of [his] lying on the stand and . . . telling everybody that [he] did

not appreciate what [he was] doing” prevented Appellant from receiving a very

significant sentence.


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      The range of confinement for aggravated robbery with a deadly weapon, a

first-degree felony, 3 is from five to ninety-nine years or life imprisonment, and in

addition, the trial court may assess a fine of up to $10,000. 4 The sentence

imposed lies well within the range of punishment provided by the legislature. 5

The trial court took into consideration Appellant’s youth in assessing punishment

in the lower range, despite the fact that one of the grounds for proceeding to

adjudication was the commission of a new offense that looks suspiciously like at

least an attempted burglary. We hold that nothing in the record shows that the

fifteen-year sentence imposed in this case constitutes a grossly disproportionate

sentence or cruel and unusual punishment in violation of the Eighth Amendment

to the Constitution of the United States. 6

      We overrule Appellant’s sole point and affirm the trial court’s judgment.




      3
       Tex. Penal Code Ann. § 29.03(b) (West 2011).
      4
       Id. § 12.32.
      5
       See id.
      6
       See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Moore
v. State, 54 S.W.3d 529, 541–42 (Tex. App.—Fort Worth 2001, pet. ref’d) (citing
Harmelin v. Michigan, 501 U.S. 957, 965, 111 S. Ct. 2680, 2686 (1991); Solem v.
Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011 (1983); McGruder v. Puckett,
954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992)).



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                                           LEE ANN DAUPHINOT
                                           JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

WALKER, J., concurs without opinion.

PUBLISH

DELIVERED: October 24, 2013




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