Juan David Bernal v. State

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-13-00768-CR

Juan David BERNAL, Appellant

v. The State of The STATE of Texas, Appellee

From the Criminal District Court 3, Tarrant County, Texas Trial Court No. 1297786D The Honorable Robb Catalano, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice

Delivered and Filed: July 9, 2014

AFFIRMED

Juan David Bernal pled guilty to aggravated robbery with a deadly weapon and was

sentenced to 15 years’ imprisonment. On appeal, Bernal contends his sentence constitutes cruel

and unusual punishment. We affirm the trial court’s judgment. 04-13-00768-CR

BACKGROUND

Bernal was charged by indictment with aggravated robbery with a deadly weapon. 1 Bernal

pleaded guilty without the benefit of a plea bargain agreement. At sentencing, mitigating evidence

was proffered by the defense, including evidence that Bernal had no bond violations, attended

required court hearings, maintained employment, and pled guilty to the offense. Evidence also

established that Bernal’s fiancée was approximately eight months pregnant. Ultimately, the trial

judge found Bernal guilty of aggravated robbery with a deadly weapon and sentenced him to 15

years’ imprisonment without assessing a fine.

PRESERVATION OF ERROR

To preserve a complaint that a sentence constitutes cruel and unusual punishment, a

defendant must object at trial or properly present the complaint in a motion for new trial. See

Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Sample v. State, 405 S.W.3d 295,

303–04 (Tex. App—Fort Worth 2013, pet ref’d); TEX. R. APP. P. 33.1(a). In this case, Bernal

made no objection regarding his punishment at trial and did not timely present his motion for new

trial to the trial court for consideration. See TEX. R. APP. P. 21.6. Therefore, Bernal has waived

his right to appeal on this issue.

CRUEL AND UNUSUAL PUNISHMENT

Even if Bernal had properly preserved this issue for our review, a punishment is generally

not cruel or unusual if it falls within the statutory punishment range for the offense unless the

sentence is grossly disproportionate to the offense. Alvarez v. State, 63 S.W.3d 578, 580 (Tex.

App.—Fort Worth 2001, no pet.). The statutory range for the first-degree felony of aggravated

robbery with a deadly weapon is 5 years to life imprisonment, and up to a $10,000 fine. See TEX.

1 Although the indictment also included an enhancement allegation, the State waived the enhancement as reflected in the judgment.

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PENAL CODE ANN. §§ 12.32, 29.03 (West 2011). Bernal received a sentence on the low end of the

statutory range; therefore, his punishment is not excessive.

In determining whether a sentence is grossly disproportionate, the following three criteria

are analyzed: 1) the gravity of the offense and the harshness of the penalty; 2) the sentences

imposed on other criminals in the same jurisdiction; and 3) the sentences imposed for the same

offense in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983). “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.” Alvarez, 63 S.W.3d at 581 (citing Moore v. State, 54 S.W.3d 529, 542 (Tex.

App.—Fort Worth 2001, pet ref’d)). “Only if we determine that the sentence is grossly

disproportionate” under the first factor “do we consider the remaining Solem factors.” Id.; see also

Robertson v. State, 245 S.W.3d 545, 549 (Tex. App.—Tyler 2007, pet ref’d). Bernal pled guilty

to aggravated robbery with a deadly weapon which is a first-degree felony. At the sentencing

hearing, Bernal’s attorney acknowledged that “this is a very egregious case” and the testimony at

the plea hearing showed “the severity of the matter.” The State also noted that the offense was

“very violent” and that Bernal “indiscriminately” chose his victim. Furthermore, Bernal

committed the offense while on parole from the Texas Juvenile Justice Department for drug

dealing. Finally, the trial court noted the victim in the case “was hurt really badly.” In comparison

to the gravity of the offense, Bernal received a relatively lenient sentence at the lower end of the

statutory range. Therefore, having considered the gravity of the offense and the sentence imposed,

we hold Bernal’s sentence of 15 years’ imprisonment is not grossly disproportionate to the offense.

Accordingly, we need not consider the other two Solem factors. Alvarez, 63 S.W.3d at 581.

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CONCLUSION

The judgment of the trial court is affirmed.

Catherine Stone, Chief Justice

DO NOT PUBLISH

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