No. 05-01-01233-CR.
Opinion Issued January 24, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-50765-WP. AFFIRMED.
Before Justices WHITTINGTON, O'NEILL, and MALONEY.
Opinion By Justice MALONEY[fn1] [fn1] The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Courtney Dantwan Hollywood pleaded guilty to aggravated robbery. A jury assessed a sixty year sentence. In three points of error, appellant complains (1) his guilty plea was improperly entered, (2) the evidence was factually insufficient to support his sentence, and (3) the punishment assessed was cruel and unusual. We affirm the trial court's judgment.
We are aware that this Court now resolves issues or points, but because appellant's brief refers to points of error, we use the term "point of error" in this opinion. See Tex. R. App. P. 38(e).
Background
Appellant and three other armed men robbed four banks over a six-month span ostensibly under the direction and advice of Officer Michael Sillemon of the Dallas Police Department. On June 30, 2000, the group held up a Bank United. The stolen stacks of money contained an electronic tracking device which helped the police find and arrest not only the four men but also two others. The U.S. attorney prosecuted the three other participants in the robberies in federal court. The Dallas District Attorney prosecuted appellant, who was only seventeen at the time of the robberies. At his trial in state court, he pleaded guilty to aggravated robbery and the trial court assessed a sixty-year sentence. Entry of Guilty Plea
In his first point of error, appellant contends the trial court erred in accepting his guilty plea from his trial counsel rather than from him personally. We disagree. 1. Applicable Law
Article 27.13 of the Texas Code of Criminal Procedure provides that a plea of guilty in a felony case "must be made in open court by the defendant in person." Tex. Code Crim. Proc. Ann. art. 27.13 (Vernon Supp. 2002). A defendant, however, can enter a guilty plea in a felony case through his attorney as long as the defendant is present at the time of the plea and the plea is voluntary. Shields v. State, 608 S.W.2d 924, 927 (Tex.Crim. App. 1980). 2. Application of Law to the Facts
The record shows that trial counsel entered the plea on appellant's behalf in appellant's presence. The trial court questioned appellant and received his assurance that he understood everything in his judicial confession, entered his confession voluntarily, and understood his confession would be used as evidence against him. Additionally, appellant signed a written guilty plea, which his attorney witnessed. Although the better practice would be to have the defendant personally enter his plea, the trial court substantially complied with the requirements of articles 26.13 and 27.13 of the code of criminal procedure. We overrule appellant's first point of error. Factual Sufficiency
In his second point of error, Appellant argues the evidence is factually insufficient to support the jury's assessment of punishment. Essentially, he argues we should conduct a Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), review of the punishment evidence. The court of criminal appeals, however, has not yet authorized a factual sufficiency review of punishment in noncapital cases. See McGinn v. State, 961 S.W.2d 161, 169 (Tex.Crim.App. 1998); Bradfield v. State, 42 S.W.3d 350, 352 (Tex.App.-Eastland 2001, pet. ref'd); Kanouse v. State, 958 S.W.2d 509, 510 (Tex.App.-Beaumont 1998, no pet.); Flores v. State, 936 S.W.2d 478, 479 (Tex.App.-Eastland 1996, writ ref'd). Nonetheless, appellant urges us to review the evidence produced in punishment in light of (1) the penal code's objectives, (2) the Clewis standard for reviewing factual sufficiency, (3) the court of criminal appeals's approved factors for analyzing sufficiency of punishment evidence in death-penalty cases, and (4) the civil case standard of review of punitive damages. Without authorization from the court of criminal appeals, we decline to extend Clewis's factual sufficiency standard of review to punishment in non-capital cases. Nor are we prepared to apply the standards developed for reviewing civil punitive damage awards to the review of criminal punishment. See Churitch v. State, 888 S.W.2d 911, 911 (Tex.App.-Dallas 1994, no writ) (holding intermediate appellant courts must follow the court of criminal appeals's pronouncements on matters concerning the enforcement of criminal laws). Moreover, the trial court assessed a sentence within the statutory range for aggravated robbery which complies with the penal code's objectives. See Tex. Pen. Code Ann. §§ 1.02 (Vernon 1994); Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex.App.-Dallas 1989, no writ). We overrule appellant's second point of error. Cruel and Unusual Punishment
In his third point of error, appellant argues the jury assessed a sentence inconsistent with both the federal and state constitutional prohibition against cruel and unusual punishment. See U.S. Const. amend. VIII; Tex. Const. art. I, § 13. Appellant maintains his sixty-year sentence is disproportionate because (1) he never injured or struck anyone during the Bank United robbery or any of the other extraneous offense robberies, (2) the other participants received lesser sentences in federal court, and (3) he is young. 1. Applicable Law
The Eighth Amendment requires that the punishment assessed must be proportionate to the crime. Solem v. Helm, 463 U.S. 277, 289-90 (1983); but see Harmelin v. Michigan, 501 U.S. 957, 991-93 (1991) (Scalia, J., plurality op.). The Solem court set out three factors a reviewing court should consider when determining whether an assessed sentence is disproportionate to the offense (1) the offense's gravity and the penalty's harshness, (2) the sentences imposed on others in the same jurisdiction for this offense, and (3) the sentences imposed for the same offense in other jurisdictions. Solem, 463 U.S. at 292. A majority of the Harmelin court voted to affirm Harmelin's sentence, but only four justices supported the continued application of all three Solem factors. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). First we must decide if appellant's sentence is grossly disproportionate to the crime. See Harmelin, 501 U.S. at 1004-06 (Kennedy, J., plurality op.). Texas courts have held that a punishment is not cruel and unusual if it is within the range authorized by statute. Johnson v. State, 864 S.W.2d 708, 725 (Tex.App.-Dallas 1993) (en banc), aff'd, 912 S.W.2d 227 (Tex.Crim.App. 1995); Samuel v. State, 477 S.W.2d 611, 614 (Tex.Crim.App. 1972). However, this Court has concluded that we review sentences to determine whether the sentence imposed is grossly disproportionate to the crime. Lackey v. State, 881 S.W.2d 418, 421 (Tex.App.-Dallas 1994, writ ref'd) (adopting the Fifth Circuit's interpretation of Solem and Harmelin in McGruder, 954 F.2d at 316). In doing so, we initially compare the gravity of appellant's offense against the severity of his sentence. Only if we infer that the punishment is grossly disproportionate to the offense will we then consider the remaining Solem factors. See Lackey, 881 S.W.2d at 421. Aggravated robbery is a first degree felony. Tex. Pen. Code Ann. § 29.03(b) (Vernon Supp. 2002). Aggravated robbery is punishable by imprisonment for life or for any term of not more than ninety-nine years or less than five years and a fine not to exceed $10,000. Tex. Pen. Code Ann. § 12.32 (Vernon Supp. 2002). 2. Application of Law to the Facts
Unlike Solem, appellant did not receive a sentence of life without parole for a minor offense; rather, he received a sixty year sentence for a first degree felony. See Solem, 463 U.S. at 281-284. The jury could have assessed the maximum sentence for appellant's conduct in committing an armed robbery-ninety-nine years or life and a fine up to $10,000. The evidence shows that appellant participated in committing five armed bank robberies in a six-month span, including this Bank United robbery. At each location, appellant and the other participants brandished weapons, threatened bank employees, and left the victims in fear of imminent death or serious bodily injury. Appellant was the first to enter the banks because he was the fastest and frequently jumped over the counter to confront the tellers. Appellant helped steal several automobiles, which the group used as getaway vehicles in all but one robbery. Appellant relies on the testimony of Winford Perry, a participant in this robbery and two other robberies, to show appellant's sentence was disproportionate to others similarly situated. Perry testified that he received a thirty-year sentence in federal court as a result of a plea bargain agreement. We recognize that he was sentenced under federal guidelines, which were not in evidence and do not apply in state criminal cases. Harper v. State, 930 S.W.2d 625, 632 (Tex.App.-Houston [1st Dist.] 1996, no writ). Finally, appellant points to no evidence that suggests the trial court gave him an unusually harsh sentence as compared to other defendants in State court. Rather, he implies that because he is so young the sentence is unfair. We conclude appellant's sentence is not grossly disproportionate to his crime and that his punishment is not cruel and unusual. Accordingly, we overrule appellant's third point of error. We affirm the trial court's judgment.