                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00498-CR


Devin Ray Pollard                         §   From the 432nd District Court

                                          §   of Tarrant County (1201226D)

v.                                        §   November 8, 2012

                                          §   Per Curiam

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       PER CURIAM
                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-11-00496-CR
                           NO. 02-11-00497-CR
                           NO. 02-11-00498-CR
                           NO. 02-11-00499-CR
                           NO. 02-11-00500-CR


DEVIN RAY POLLARD                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                        STATE


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        FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

                                   ----------

                      MEMORANDUM OPINION1

                                   ----------

                                 Introduction




    1
     See Tex. R. App. P. 47.4.
      Appellant Devin Ray Pollard pled guilty without a plea bargain to three

counts of aggravated robbery with a deadly weapon and two counts of

aggravated sexual assault by threat, and he pled true to identical repeat-

offender-enhancement paragraphs contained in each charge. After reviewing a

pre-sentence investigation, the trial court sentenced Appellant to seventy-five

years’ confinement in each case to run concurrently. Appellant now contends

that his punishment violates the Eighth Amendment because it is grossly

disproportionate to the offenses for which he stands convicted. We affirm.

                  Background Facts and Procedural History

      Appellant pled guilty to the trial court and admitted that on a day in May

2010 he committed three aggravated robberies with a firearm and two

aggravated sexual assaults by threat while exhibiting a firearm. He admitted that

he and a codefendant planned to rob two women at an apartment, went to the

apartment, took from it a big-screen television, a game device, and a cell phone;

that he sexually assaulted each woman by jamming a finger and the barrel of a

handgun into their sexual organs; and that he also threatened to kill one woman’s

seven-year old daughter if the child did not keep quiet.

                                   Discussion

      A complaint that a sentence is unconstitutionally excessive must be

preserved by objection or motion for new trial. See Curry v. State, 910 S.W.2d

490, 497 (Tex. Crim. App. 1995) (concluding that even constitutional rights may

be forfeited, including the right to be free from cruel and unusual punishment).


                                         2
Our review of the record shows that Appellant did not take either of these

measures to preserve his complaint. Therefore, he has failed to preserve his

complaint for review. See Tex. R. App. P. 33.1(a); Russell v. State, 341 S.W.3d

526, 527–28 (Tex. App.––Fort Worth 2011, no pet.).

      But even if Appellant had preserved his claim, we would hold that these

sentences are not disproportionate to the offenses he admitted committing. To

assess proportionality, we first make a threshold comparison of the offense

against the severity of the sentence. Moore v. State, 54 S.W.3d 529, 542 (Tex.

App.—Fort Worth 2001, pet. ref’d) (citing Solem v. Helm, 463 U.S. 277, 291–92,

103 S. Ct. 3001, 3010 (1983) and McGruder v. Puckett, 954 F.2d 313, 316 (5th

Cir.), cert. denied, 506 U.S. 849 (1992)). Only if we determine that the sentence

is grossly disproportionate to the offense do we need to consider whether the

sentence is comparable to sentences imposed upon other criminals in the same

jurisdiction and sentences imposed for commission of the same crime in other

jurisdictions. Id.; see McGruder, 954 F.2d at 316; Culton v. State, 95 S.W.3d

401, 403 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); see also Phillips v.

State, No. 02-10-00171-CR, 2011 WL 946976, at *1 (Tex. App.—Fort Worth Mar.

17, 2011, no pet.) (mem. op., not designated for publication).

      In making our threshold inquiry, we judge the gravity of the offense in light

of the harm caused or threatened to the victim or society, and the culpability of

the offender. Solem, 463 U.S. at 291–92, 103 S. Ct. at 3010; Moore, 54 S.W.3d

at 542. Here, Appellant pled guilty to multiple counts of aggravated felonies


                                        3
including aggravated sexual assault by exhibiting a weapon and aggravated

robbery with a deadly weapon. Each of these is a first-degree felony. See Tex.

Penal Code Ann. §§ 22.021(e), 29.03 (West Supp. 2012). Thus, they are within

the second most serious category of offenses in Texas, capital offenses being

the most serious. The range for a first-degree felony is five years to 99 years or

life in prison with a $10,000 fine.    Id. § 12.32 (West 2011).      The trial court

sentenced Appellant to seventy-five years in each case. In general, when the

sentence imposed is within the proper range of punishment, the trial court has a

great deal of discretion and the sentence will not be disturbed on appeal. See

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

      The record shows that Appellant robbed and sexually assaulted two

women at gunpoint in one of the women’s home. He made them strip off their

clothes and perform oral sex, he hit one of them with a gun when she appeared

not to sufficiently cooperate, he threatened to kill the child of one of them, and he

penetrated their sexual organs with the barrel of a firearm while the child

watched, huddled in a ball and shaking. Based on the facts in the record in these

cases, we hold that the trial court did not abuse its discretion in sentencing

Appellant to seventy-five years’ confinement for each offense. See Phillips, 2011

WL 946976, at *1 (affirming a thirty-year prison sentence for one count of

aggravated sexual assault of a child); Miles v. State, Nos. 02-09-00251-CR, 02-

09-00252-CR, 02-09-00253-CR, 02-09-00254-CR, 02-09-00255-CR, 02-09-

00256-CR, 2010 WL 1730862, at *1 (Tex. App.—Fort Worth Apr. 29, 2010, pet.


                                         4
ref’d) (mem. op., not designated for publication) (affirming sixty-five-year

sentence for six counts of aggravated robbery); Chappel v. State, No. 05-97-

00710-CR, 1998 WL 832112, at *1 (Tex. App.—Dallas Dec. 3, 1998, no pet.) (not

designated for publication) (“Considering appellant’s criminal history and the

serious nature of appellant’s current offense, we cannot conclude that the

punishment was grossly disproportionate to the offense.”).    Accordingly, we

overrule Appellant’s sole point on appeal.

                                   Conclusion

      Having overruled Appellant’s sole point on appeal, we affirm the trial

court’s judgment.


                                                PER CURIAM

PANEL: GABRIEL, MCCOY and MEIER, JJ.

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

DELIVERED: November 8, 2012




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