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Robinson v. State

Court of Appeals of Texas, Fifth District, Dallas
May 23, 2008
No. 05-07-00519-CR (Tex. App. May. 23, 2008)

Opinion

No. 05-07-00519-CR

Opinion issued May 23, 2008. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 86th Judicial District Court Kaufman County, Texas, Trial Court Cause No. 23199-86.

Before Chief Justice THOMAS and Justices BRIDGES and LAGARDE.

The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.


OPINION


Appellant Prince Charles Robinson was indicted by a Kaufman County grand jury for aggravated robbery. On April 9, 2007, appellant pleaded not guilty before a jury to the offense. The jury found appellant guilty, and following a hearing, the trial court assessed punishment at sixty years' imprisonment. In two issues, appellant complains the sixty-year sentence is disproportionate to the seriousness of the offense in violation of the Eighth Amendment to the United States Constitution and the trial court erred in considering extraneous offense evidence presented at the punishment hearing that was not proved beyond a reasonable doubt. We affirm the trial court's judgment.

Disproportionate Sentence

Appellant contends in his first issue that the sixty-year sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment because it is disproportionate to the seriousness of the offense. Appellant neither objected to the sentence at the time it was imposed nor challenged it by motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda, 135 S.W.3d at 723. Moreover, the sentence is within the statutory punishment range for aggravated robbery. See Tex. Penal Code Ann. §§ 12.32(a), 29.03(b) (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We resolve appellant's first issue against him.

Extraneous Offense Evidence

Eleven days before trial for the aggravated robbery began, a search warrant was executed at appellant's home. That search uncovered twenty-two grams of crack and powder cocaine underneath appellant's house. The State offered that drug evidence, although it had not been chemically tested at the time of trial, as bad act evidence against appellant in the punishment hearing. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2007). Defense counsel objected to the evidence on the grounds that, due to the lack of chemical testing, the State had not proved a drug offense against appellant "beyond a reasonable doubt." The evidence was admitted over defense objection. In issue two, appellant complains the trial court erred by admitting and considering in the punishment hearing an extraneous offense not proven beyond a reasonable doubt, in violation of article 37.07, section 3(a)(1) and the recent holding of Smith v. State, 227 S.W.3d 753 (Tex.Crim.App. 2007). The State responds that although it failed to prove, by chemical testing, the substances possessed were controlled substances, other evidence proved they were. The State points to appellant's actions, the packaging of the substances, and appellant's confession to ownership of the "crack cocaine" and "powder cocaine." The State argues this evidence proved beyond a reasonable doubt appellant committed the offense of attempted possession of a controlled substance or attempted possession of a controlled substance with intent to deliver. Therefore, the trial court did not abuse its discretion by admitting and considering such evidence on punishment. Alternatively, the State argues, that even assuming error, any error was harmless because there is no record evidence the trial court actually considered the bad act in assessing punishment and that the sixty-year sentence was justified by appellant's failure to take responsibility for the charged crime, appellant's extensive criminal history, and appellant's attempts to minimize his prior offenses.

1. Standard of Review and Applicable Law

We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). A trial court abuses its discretion when it applies an erroneous legal standard or when no reasonable review of the record could support the trial court's conclusion. See Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006). We will uphold the trial court's ruling so long as it falls within the "zone of reasonable disagreement." See Powell, 63 S.W.3d at 438. During the punishment phase, the State may offer into evidence any matter the trial court deems relevant to sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). This includes evidence of a defendant's prior criminal record, his general reputation, his character, and the circumstances of the offense for which he was tried. Id. Additionally, the State may offer evidence of an extraneous crime or bad act; however, the bad act must be proven beyond a reasonable doubt before it may be considered in assessing punishment. Id.; Huizar v. State, 12 S.W.3d 479, 482-83 (Tex.Crim.App. 2000). When the trial court assesses punishment, the judge has two roles: (1) gatekeeper; and (2) fact finder. Cf. Mata v. State, 46 S.W.3d 902, 908 (Tex.Crim.App. 2001). As the gatekeeper, the judge determines the threshold issue of the admissibility of extraneous-offense evidence. Cf. id. As the fact finder, the judge must determine whether the evidence proves beyond a reasonable doubt the extraneous offense or bad act before he can properly consider the evidence in assessing punishment. See Ortega v. State, 126 S.W.3d 618, 622 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd).

2. Analysis

Through the testimony of police officer Jeremy Mack at the punishment hearing, the State introduced and the trial court admitted, over defense objection, factual evidence about a search of appellant's house, pursuant to a search warrant, on March 29, 2007, eleven days before trial for the aggravated robbery. That search uncovered suspected drugs underneath appellant's house, which resulted in appellant's arrest. While at the scene of the search, appellant made an oral statement. After appellant was arrested and taken to the police station he gave a written statement. Appellant's written statement, in which he admitted to possession of some of the drugs found, was admitted into evidence, without objection. Appellant testified during the punishment hearing that the house which was searched was his and Mieshia's house. Appellant had $300 in his pockets when he was arrested. The money was to pay his rent of $300, which was due on the 26th. Appellant did not know the substances were underneath the house. Appellant acknowledged, however, giving a written statement at the police station admitting the drugs were his. He explained the statement on direct-examination by defense counsel as follows:
[Counsel]: You gave a statement later on at the police department indicating that you knew they were there and they were yours and all sorts of stuff.
[Appellant]: Based on-
[Counsel]: Let's talk about that statement.
[Appellant]: Based on the statement, I pretty much told them what I heard them tell the other officers and what they was [sic] commenting on, like where they found it at, how did it look.
[Counsel]: You said you didn't know it was there to begin with?
[Appellant]: No, sir.
[Counsel]: You heard the officers say or tell that that's where they found it, underneath the house?
[Appellant]: Yes, sir.
[Counsel]: What about knowing what it was? How did you find out what it was or what they thought it was?
[Appellant]: Because what they was [sic] saying. Like when I was sitting-like I was sitting not too far from Officer Mack when he came in with it, like in his hand, like showing the other officers.
[Counsel]: Well, so how did that get down in a statement? How did it get into a written form at the police station where you're giving a statement and you sign the statement?
I understand that you heard all that information from the police officers talking out there, right?
[Appellant]: Yes, sir.
[Counsel]: But, if that be the case, how or why did it get written down in a statement form where you're signing it at the police station?
[Appellant]: Because Officer Kelly and Officer Mack, they like-we went into a room-first of all, I was sitting down and a officer told me to stand up and I stood up and he went to grabbing on my pants. And I was like, what's all this for? And he like, they're wet, they're wet. I was like, yeah, it's raining outside.
So, I said if it will make y'all happy, okay, it's mine's [sic]. If it will help y'all sleep better at nights knowing I'm in jail, all right, it's mine's [sic]. And they're like, well, we're not going to let you own up to it.
So, Officer Kelly and Officer Mack pulled me in a room and we was in there talking and they were, like, well, if you own up to it, we will let them go. I'm like, all right, if y'all let them go, I'll own up to it.
[Counsel]: Is that what you did?
[Appellant]: Yes, sir.
[Counsel]: Talking about letting them go. Who are them?
[Appellant]: Candace Bean and Jonathan Emery.
[Counsel]: Whenever you told the police that you would own up to it if they would let those other people go, what did the police say to that?
[Appellant]: They were like would you write a statement saying it's yours? And I were like, yes, sir, if you let them go. He said, yeah, we will let them go if you write the statement.
[Counsel]: If the police had said no deal, we're not letting them go, would you have written a statement?
[Appellant]: No, sir.
On cross-examination, appellant acknowledged the conversation he had with Mack and Kelly took place at the house and the written statement was given later at the Terrell Police Department after Emery and Bean had been arrested. Appellant explained he signed the written statement even though the police had not kept their "end of the deal" not to arrest the others because the police told appellant they would let them go as soon as he signed the statement. During his testimony, appellant admitted he had been arrested once for drug possession, but the evidence showed he had been arrested three times. Further, appellant admitted that the drugs shown on videotapes from a 2003 arrest were his. The videotape was admitted into evidence. Appellant was familiar with the packaging of cocaine. When appellant was arrested in 2003, he had $600 on him. He testified that money came from his brother, who had just got his income tax check and had given appellant part of it. Appellant denied making money dealing drugs on the streets of Terrell, but admitted he does it for the money and that when he deals drugs he makes money. Appellant does not have a bank account and puts the money in his pockets. Appellant also testified that on March 29, 2007, he was the only person living at the house. Appellant denied dealing drugs out of the house on that date, but admitted he had done so once before. Twenty-two grams of cocaine would be valued at a little bit over $300 on the street. Appellant admitted he had sold drugs at the Hilltop Store in the past. He also acknowledged that two of the videotapes of him selling drugs to an informant were at the Hilltop Store. Based on the evidence set out above, the trial court could have found beyond a reasonable doubt that on March 29, 2007, appellant committed the offense of attempted possession with intent to deliver a controlled substance or attempted possession of a controlled substance. Therefore, the court did not abuse its discretion by considering the unadjudicated extraneous bad act evidence in assessing punishment. We resolve appellant's second issue against him. We affirm the trial court's judgment.


Summaries of

Robinson v. State

Court of Appeals of Texas, Fifth District, Dallas
May 23, 2008
No. 05-07-00519-CR (Tex. App. May. 23, 2008)
Case details for

Robinson v. State

Case Details

Full title:PRINCE CHARLES ROBINSON, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: May 23, 2008

Citations

No. 05-07-00519-CR (Tex. App. May. 23, 2008)