John Dwight Prescott AKA Patrick Prescott v. State

• Court: Court of Appeals of Texas
• Decided: July 8, 2004
• Docket: 14-03-01345-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 8, 2004

Affirmed and Memorandum Opinion filed July 8, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01345-CR

NO. 14-03-01346-CR

NO. 14-03-01347-CR

JOHN DWIGHT PRESCOTT A/K/A PATRICK PRESCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause Nos. 949,073; 949,390 & 949,391

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M E M O R A N D U M   O P I N I O N

Appellant, John Dwight Prescott, a/k/a Patrick Prescott, appeals his convictions for burglary with intent to commit theft.  In his sole issue, appellant challenges the trial court=s assessment of punishment as excessive and disproportionate to the offenses committed.  We affirm.

Factual and Procedural Background

Appellant was charged by indictments in cause numbers 949,073, 949,390, and 949,391 with the felony offenses of burglary with intent to commit theft on or about April 29, 2003, May 15, 2003, and May 4, 2003, respectively.  The indictments contained two enhancement paragraphs, including appellant=s prior felony convictions for burglary of a habitation and unauthorized use of a motor vehicle.  Appellant entered a guilty plea to all three offenses without an agreed recommendation by the State as to punishment, and he pled  true to the enhancement paragraphs.  The trial court found appellant guilty, and on October 23, 2003, the court assessed punishment at confinement for twelve years in the Institutional Division of the Texas Department of Criminal Justice for each offense, with the sentences to be served concurrently.  Appellant filed a written, pro se notice of appeal from all three convictions. 

DISCUSSION

In one issue, appellant argues that the twelve-year sentence assessed against him constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and Article 1, section thirteen of the Texas Constitution.  U.S. Const. Amend. VIII; Tex. Const. art. I, ' 13.  He argues the sentence is excessive and disproportionate to the offenses committed.

Punishment is grossly disproportionate to the crime only if the sentence is extreme when compared to the gravity of the offense.  Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).  If a sentence is determined to be grossly disproportionate to the offense, we then compare the sentence received to sentences for similar crimes.  Id.  

Appellant did not object at the sentencing hearing that the sentences imposed violated his constitutional rights.  Nor did he raise these arguments in a post‑trial motion.^[1]  To preserve a complaint for appellate review, appellant must have made a timely request, objection, or motion, stating the specific grounds for the ruling sought.  Tex. R. App. P. 33.1(a).  It is well established that failure to raise an Eighth Amendment objection at trial waives any such claim on appeal.  Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). 

Even had appellant preserved his complaint for appellate review, it lacks merit.  Appellant=s sentence is not grossly disproportionate.  Punishment assessed within the statutory range is not disproportionate and does not violate the federal and state constitutional prohibitions of cruel and unusual punishment.  Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Buerger v. State, 60 S.W.3d 358, 365 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d).  The punishment range for burglary with intent to commit theft, with two enhancements, is imprisonment for two to twenty years and assessment of a fine of up to $10,000.  Tex. Pen. Code Ann. '' 12.42, 30.02 (Vernon 2003 & Supp. 2004).  Appellant=s twelve-year sentence falls within the statutory range; therefore, it does not constitute excessive, cruel, or unusual punishment.  See Harris, 656 S.W.2d at 486. 

Appellant argues that even though a sentence may be within the range of punishment permitted by statute, it nonetheless may violate the Eighth Amendment prohibition against cruel and unusual punishment.  See Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  He asserts we should compare the offenses against the severity of the sentence, judging the gravity of the offenses in light of the harm caused and the offender=s culpability.  See Culton v. State, 95 S.W.3d 401, 403 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). 

Appellant contends he injured no one in the commission of these three burglaries.  He and his family testified about his long-term drug problem and his desire to receive treatment. Accordingly, appellant requested the trial court assess community supervision instead of imprisonment so that he could enter a residential drug treatment program.  Appellant admitted, however, that he had failed to complete the terms of community supervision imposed for prior offenses.  Further, testimony at the sentencing hearing revealed the first of these three burglaries was committed on the same day appellant was paroled from prison.  Appellant admitted at the punishment hearing that he had committed between ten and twenty burglaries in the twenty-day period between his parole and his arrest on these charges.  Also, appellant had been convicted previously of seven felonies and five misdemeanors. 

The State need not treat an accused charged under a recidivist statute in the same manner as a first offender.  See Rummell v. Estelle, 445 U.S. 263, 284, 100 S. Ct. 1133, 1144 (1980); Hicks, 15 S.W.3d at 632.  In sentencing a repeat offender, the court may consider his prior convictions.  Id.  We consider a defendant=s criminal history when reviewing a claim that a sentence is grossly disproportionate.  Id.  In light of appellant=s extensive criminal history, we cannot say that the sentence imposed by the trial court constitutes excessive, cruel, or unusual punishment in violation of the United States or Texas constitutions.

Appellant=s sole issue is overruled.  We affirm the judgments of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed July 8, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  In addition, appellant failed to provide evidence in the record reflecting sentences imposed on similar offenses in Texas or other jurisdictions, as required by Solem v. Helm, 463 U.S. 277, 291 (1983).