Poston, William Keith v. State

• Court: Court of Appeals of Texas
• Decided: May 22, 2003
• Docket: 14-02-00682-CR
• Status: Published

Opinion

Affirmed and Opinion filed _____________, 2002

Affirmed and Memorandum Opinion filed May 22, 2003.                                                    

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00682-CR

NO. 14-02-00683-CR 

WILLIAM KEITH POSTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

                                                           Harris County, Texas                      

Trial Court Cause Nos. 894,623 and 893,949

M E M O R A N D U M   O P I N I O N

            After appellant pleaded guilty to robbery and aggravated robbery, the trial court assessed concurrent 15-year sentences for each crime.  In his sole point of error, appellant contends his sentences constitute cruel and unusual punishment because they are disproportionate to the offenses.  The facts of this appeal are known to the parties, so we do not recite them here.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.1.  We affirm.

            To preserve error for appellate review, a defendant must object at trial.  See Tex. R. App. P. 33.1.  Because appellant did not object at the time of sentencing or in a post-trial motion that his sentence was cruel and unusual, he has waived any error. See Idowu v. State, 73 S.W.3d 918, 921 n.9 (Tex. Crim. App. 2002); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). 

            The outcome would be the same even assuming he properly preserved error.  A criminal sentence may be cruel and unusual even if it falls within the range permitted by statute.  See Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).  But only if the sentence is grossly disproportionate to the gravity of the offense (considering the threat or harm to the victim or society and the culpability of the offender) must we compare it with sentences for similar crimes in the same or other jurisdictions.  See Baldridge v. State, 77 S.W.3d 890, 893 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d); Culton v. State, 95 S.W.3d 401, 403 (Tex.App.—Houston [1st Dist.] 2002, no pet.). 

            We do not think a 15-year sentence was grossly disproportionate to appellant’s crimes here.  In the first of his two robberies, he and his co-defendant assaulted two men at a convenience store, punching and kicking them, and stole a bicycle belonging to one of them.  In the second robbery, he hijacked an automobile at gunpoint.  He also had previous convictions for driving while intoxicated (twice), driving while his license was suspended, and unlawfully carrying a weapon.  Under these facts, we do not agree that the sentences imposed were grossly disproportionate to the offenses.  See Baldridge, 77 S.W.3d at 93.   The judgment is affirmed.

                                                            /s/        Scott Brister

                                                                        Chief Justice

Judgment rendered and Memorandum Opinion filed May 22, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Frost.

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