Christopher Burnell v. State

Opinion issued January

5, 2012.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00214-CR

————————————

Christopher burnell , Appellant

V.

The

State of Texas , Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1207888

MEMORANDUM

OPINION

Christopher Burnell appeals a judgment

convicting him of aggravated robbery. See Tex. Penal Code Ann. § 29.03 (West 2011 ). Burnell pleaded guilty without a plea

agreement. The trial court found Burnell

guilty, assessed his punishment at thirty-five years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice, and entered

judgment on March 10, 2010. Burnell

filed a notice of appeal on the same day.

Burnell later filed a motion titled “motion for new trial and/or motion

for arrest of judgment and/or motion to reconsider sentence.” On May

24, 2011, the seventy-fifth day after sentencing, the trial court signed an

order denying the motion for new trial but made a written note on the order

indicating that Burnell’s sentence was reformed to twenty-five years.

On the following day, May 25, the trial court made

further notations to its order on Burnell’s motion for new trial. It wrote that it was rescinding its May 24

denial of the motion for new trial and granting Burnell a new trial as to

punishment only. On May 26, the trial

court re-sentenced Burnell to twenty-five years and entered a new judgment of

conviction reflecting Burnell’s sentence of twenty-five years in the TDCJ.

Burnell raises three issues on appeal. He contends that his plea was involuntary

because his counsel was ineffective in rendering legal advice regarding Burnell’s

plea and potential sentence, his sentence constitutes cruel and unusual

punishment in violation of the federal and Texas Constitutions, and the trial

court violated his right to due process by considering “erroneous evidence” and

irrelevant evidence during the sentencing hearing.

After Burnell filed his brief, the State moved to

dismiss the appeal for want of jurisdiction, contending that Burnell’s March

10, 2010 notice of appeal is “not effective to challenge a judgment that

followed the granting of a new trial as to punishment only.” In response, Burnell agrees that the appeal

“must be dismissed” but contends that it should be remanded for sentencing,

because the trial court “failed to hold a new sentencing hearing after granting

the motion for new trial on punishment.”

We conclude that we have jurisdiction over this

appeal. We further hold that Burnell

failed to show that his plea was involuntary, that his sentence does not

constitute cruel and unusual punishment, and that the trial court did not

violate Burnell’s right to due process.

We affirm.

Background

Police Officer T. Infante arrived home

on December 12, 2008 and saw three men—Johnny Williams, Darrel “BG” Broussard,

and Burnell—walking in the street. A few

minutes after entering his house, Infante looked out his front window. He saw the three men burglarizing a white

vehicle parked in the driveway across the street. Standing near the car, Burnell and Broussard

both acted as lookouts. Infante retrieved

his weapon from his closest and placed it in the waistband of his pants, behind

his back. He walked to the edge of his

yard and confronted the men. Surprised, Burnell

took a step back. Infante pulled his gun

and Burnell discharged the gun he was holding, striking Infante twice. Burnell fled down the street.

Burnell was later charged, certified

to stand trial as an adult, and indicted.

He pleaded guilty to aggravated robbery without an agreed sentencing

recommendation and on March 10, 2010, the trial court sentenced Burnell to thirty-five

years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice. The same day, Burnell

filed a notice of appeal.

On April 9, 2010, Burnell filed with

the trial court a motion for new trial, to arrest judgment, and to reconsider the

sentence. In it, he raised numerous

complaints, including that his plea was involuntary because his trial counsel

failed to give reasonably competent advice about sentencing and led Burnell to

believe he would be sentenced to community supervision, that the trial court

erred by refusing to allow Burnell to present witnesses or arguments regarding

sentencing, and that Burnell’s sentence was grossly disproportionate to the

crime, constituting cruel and unusual punishment in violation of the federal

and Texas Constitutions and the United States Supreme Court decision in Graham v. Florida . See Graham

v. Florida , 130 S. Ct. 2011 (2010).

The trial

court granted Burnell’s request for an evidentiary hearing on his motion for

new trial. At the conclusion of that hearing

on May 21, 2010, the trial court took judicial notice of the contents of the

clerk’s file, including the presentence-investigation report and the plea

papers signed by Burnell, and took the motion under advisement. On May 24, 2010, the seventy-fifth day after sentencing, the

trial court signed an order denying Burnell’s request for a new trial but

noting that Burnell’s sentence was reformed to twenty-five years’

confinement. The trial court made

the following handwritten note on the March 10, 2010 judgment: “Be it

remembered on the 24th day of May 2010, the trial court reformed the sentence

to 25 yrs TDCJ-In.”

On May 25, 2010, the seventy-sixth day after

sentencing, the trial court made a handwritten note on the order denying Burnell’s

motion for new trial indicating that it was rescinding the order denying the

new trial and, instead, granting Burnell a new trial as to sentencing

only. The trial court also wrote on the

March 10, 2010 judgment: “new trial granted on May 25, 2010.”

On May 26, 2010, the trial court announced

on the record its findings that Burnell’s plea “was a knowing plea and that he

was informed and that the lawyer was not ineffective in that regard.” However, the trial court concluded, based on

the new evidence that Burnell presented at the hearing on the motion for new

trial, that Burnell’s trial counsel’s presentation of evidence on sentencing

was ineffective. Accordingly, the trial

court announced that it would “reform the sentence” and “find the presentation

of evidence ineffective in that regard and sentence him to 25 years.” On the same day, the trial court entered a

new judgment and again certified Burnell’s right to appeal.

Both the State and Burnell contend we lack

jurisdiction over this appeal. The State

contends we should dismiss for lack of jurisdiction because Burnell was

required to but did not file a notice of appeal after the trial court granted a

new trial. Burnell contends we must

dismiss and remand for a new trial on sentencing because the trial court was

required to but did not hold a sentencing hearing after it granted Burnell’s

motion for new trial. We address our

jurisdiction before turning to the merits.

Jurisdiction

Filing a notice of appeal invokes the appellate court’s

jurisdiction. Tex. R. App. P. 25.2(b).

However, it does not automatically terminate the trial court’s jurisdiction. See Meineke

v. State , 171 S.W. 3d 551, 558 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). At a minimum, a trial court retains plenary

power to modify its sentence if a motion for new trial or motion in arrest of

judgment is filed within thirty days of sentencing. State

v. Aguilera , 165 S.W.3d 695 , 697 – 98 (Tex. Crim. App. 2005). When a motion for new trial is timely filed,

our rules provide that a trial court has the authority to resolve the merits of

that motion within seventy-five days after sentencing. Tex. R. App. P. 21.8 (a), (c); Awadelkariem v. State , 974 S.W.2d 721, 728 (Tex. Crim. App. 1998). Further, a court has power to correct,

modify, vacate, or amend its own rulings, including the sentence, within the

time of its plenary jurisdiction. See Awadelkariem , 974 S.W.2d at 728

(holding that “an order granting or denying a motion for new trial may be

freely rescinded so long as such action occurs within the 75 days provided by

the rules”); Meineke , 171 S.W.3d at

558 (noting trial court can, in the interest of judicial economy, exercise its

plenary power to correct an illegal sentence by modifying, vacating or amending

its rulings); Junious v. State , 120

S.W.3d 413, 417 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding

trial court was authorized to alter appellant’s sentence within the time of its

plenary jurisdiction).

Here, it is undisputed that Burnell timely

filed a notice of appeal invoking this court’s jurisdiction on March 10, 2010,

the day he was sentenced to thirty-five years’ confinement. Because Burnell timely filed a motion for new

trial, the trial court retained jurisdiction to resolve Burnell’s motion for

new trial for seventy-five days after sentencing, through May 24, 2010. Tex. R.

App. P. 21.8(a), (c). The trial

court thus had jurisdiction on May 24, the seventy-fifth day after sentencing,

to consider the arguments in and rule on Burnell’s motion for new trial, and to

reduce Burnell’s sentence to twenty-five years.

State v. Davis , 349 S.W.3d

535, 538 (Tex. Crim. App. 2011) (trial court had authority to set aside

original sentence and modified judgment was not void where defendant had filed motion

to reconsider his sentence, which was functionally indistinguishable from motion

for new trial on punishment, within thirty days of his initial sentence); Awadelkariem , 974 S.W.2d at 728 (noting

that trial court may modify order on motion for new trial within the seventy-five

days provided by the rules); In re

Sistrunk , 142 S.W.3d 497, 503 (Tex. App.—Houston [14th Dist.] 2004, orig.

proceeding) (noting that trial court has inherent power to correct, modify, vacate

or amend its own ruling within the statutory time table); see Junious , 120 S.W.3d at 417 (trial court had power to modify sentence

because plenary jurisdiction had not expired when it reformed punishment to ten

years’ confinement); Patterson v. State ,

No. 04-10-00513-CR, 2011 WL 3715057 at *9 – 10 (Tex. App. — San Antonio Aug. 24, 2011, pet. dism’d) (trial court

had plenary power to modify sentence where appellant presented legal arguments

for modification and trial court held hearing on motion to reconsider within

thirty days of sentencing).

However, May 24 was the last day on which the trial

court had jurisdiction to resolve the merits of Burnell’s motion for new trial. The trial court lacked jurisdiction to grant

the motion on May 25, 2010, because it was the seventy-sixth day after

sentencing. See Tex. R. App. P.

21.8 (a), (c); Awadelkariem , 974

S.W.2d at 728 (“[A]fter the 75 day period expires, an order granting or denying

a new trial becomes ‘final . . . .’”). Accordingly,

the trial court’s May 25 order granting Burnell a new trial as to sentencing, and

May 26 resentencing and judgment are null and void. See State

v. Bates , 889 S.W.2d 306, 310 (Tex. Crim. App. 1994) (“[B]ecause the trial

court’s order granting a new trial . . . was entered more than 75 days after

the judgment, the Court of Appeals did not err to hold that it was void.”).

The State and Burnell contend, for

different reasons, that we lack jurisdiction.

Both arguments, however, depend on the validity of the May 25 order

granting Burnell a new trial. Because we

have concluded that order is a nullity, both parties’ arguments that we lack

jurisdiction also fail. We conclude the

trial court lacked jurisdiction to enter the May 25 order granting Burnell a

new trial as to punishment only and, accordingly, lacked jurisdiction to enter

the May 26 judgment. We further hold

that Burnell’s March 10 notice of appeal invoked our jurisdiction to review the

March 10 judgment, which we find the trial court had jurisdiction to, and did, reform

on May 24 to reduce Burnell’s sentence from thirty-five years to twenty-five

years. [1] See Davis ,

349 S.W.3d at 538 ; see also Awadelkariem ,

974 S.W.2d at 728 ; see Junious , 120

S.W.3d at 417 . We thus turn to the

merits of Burnell’s appeal.

Voluntariness of the Plea

In his first point of error, Burnell asserts that his

plea was involuntary because he received ineffective assistance of

counsel. Burnell contends that his trial

counsel was ineffective in (1) erroneously advising him that he would be

sentenced to probation if he pled guilty, (2) failing to advise Burnell and

delegating that duty to Burnell’s mother, and (3) failing to tell the court

that he had difficulty communicating with Burnell and that he believed that

Burnell lacked the mental capacity to understand the consequences of his

actions.

In determining whether a plea is voluntary, we

consider the record as a whole. Fimberg v. State , 922 S.W.2d 205, 207

(Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (citing Williams v. State , 522 S.W.2d 483, 485 (Tex. Crim. App.

1975)). A record that indicates that the

trial court properly admonished the defendant presents a prima facie showing

that the guilty plea was made voluntarily and knowingly. Arreola

v. State , 207 S.W.3d 387, 391 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(citing Martinez v. State , 981 S.W.2d

195, 197 (Tex. Crim. App. 1998)). When

the record presents a prima facie showing that the plea was voluntary and

knowing, the burden shifts to the defendant to show that he entered the plea

without understanding the consequences. Id. (citing Edwards v. State , 921 S.W.2d 477, 479 (Tex. App.—Houston [1st

Dist.] 1996, no pet.). An accused who

attests when he enters his plea of guilty that he understands the nature of his

plea and that it is voluntary has a heavy burden on appeal to show that his

plea was involuntary. Id .

However, a guilty plea is not voluntary if made as a result of ineffective

assistance of counsel. Ex parte Niswanger , 335 S.W.3d 611 , 614–15

(Tex. Crim. App. 2011).

Although there are no oral admonishments on the record

because Burnell waived the right to receive them, the signed, written admonishments

in the record indicate that Burnell voluntarily agreed to the plea and was fully

aware of the range of punishment for the offense of aggravated robbery. Burnell signed the admonishments and initialed

next to the statements “I am mentally competent and I understand the nature of

the charge against me,” “I understand the admonishments of the trial court set

out herein,” and that the range of possible incarceration time was “a term of

life or any terms of not more than 99 years or less than 5 years in the

Institutional Division of the Texas Department of Criminal Justice.” At the end of the admonishments he initialed

next to the statement: “Joined by my counsel, I state that I understand the

foregoing admonishments and I am aware of the consequences of my plea. I am mentally competent to stand trial and my

plea is freely and voluntarily made.” As

a result of signing these admonishments, a heavy burden is placed on Burnell to

show a lack of voluntariness. See Mallett v. State , 65 S.W.3d 59, 64

(Tex. Crim. App. 2001) (record showing appellant was properly admonished

established prima facie case that plea was knowing and voluntary).

Because this is an ineffective assistance of counsel argument,

we must refer to the standards set out in Ex

parte Moody . 991 S.W.2d 856 , 857–58

(Tex. Crim. App. 1999). Moody frames the Strickland test in the context of determining whether counsel was

inadequate when an appellant has pleaded guilty: “[V]oluntariness . . . depends

on (1) whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases, and if not, (2) whether there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.” Id. (quoting

Ex parte Morrow , 952 S.W.2d 530, 536

(Tex. Crim. App. 1997)); see also

Strickland v. Washington , 466 U.S. 668 , 104 S. Ct. 2052 (1984). We recognize a strong presumption that trial

counsel’s performance fell within the wide range of reasonable professional

assistance and appellant must overcome this presumption. Rylander

v. State , 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (citing Strickland , 466 U.S. at 689 , 104 S. Ct.

at 2065 ). To defeat the presumption of

reasonable professional assistance, “[a]ny allegation of ineffectiveness must

be firmly founded in the record, and the record must affirmatively demonstrate

the alleged ineffectiveness.” Mallett , 65 S.W.3d at 63 (quoting Thompson v. State , 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). In evaluating the

effectiveness of counsel under the first prong, we look to the totality of the

representation and the particular circumstances of appellant’s case. Thompson ,

9 S.W.3d at 813 . A plea of guilty based

on erroneous information conveyed to the defendant by his trial counsel is

involuntary . Fimberg , 922 S.W.2d at 207 (citing Ex parte Griffin , 679 S.W.2d 15, 17

(Tex. Crim. App. 1984)). The court must

first make a threshold determination that counsel erroneously and incompetently

advised the appellant before the second factor concerning prejudice to the

appellant is reached. Id. at 208.

Burnell asserted that his plea was involuntary in his

motion for new trial, which was denied by the trial court. An appellate court reviews a trial court’s

denial of a motion for new trial under the “abuse of discretion” standard. Holden

v. State , 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). We do not substitute our judgment for that of

the trial court, but rather we decide whether the trial court’s decision was

arbitrary or unreasonable. Id .

We must view the evidence in the light most favorable to the trial court’s

ruling and presume that all reasonable factual findings that could have been

made against the losing party were made against that losing party. State

v. Herndon , 215 S.W.3d 901 , 906 n.16 (Tex. Crim. App. 2007). Thus, a trial court abuses its discretion in

denying a motion for new trial only when no reasonable view of the record could

support the trial court’s ruling. Holden , 201 S.W.3d at 763 .

In his first ineffective assistance claim, Burnell

asserts that his plea was involuntary because his trial counsel advised Burnell

that he would be sentenced to probation, not incarceration. Burnell and his mother testified that the

trial counsel told them that Burnell would receive only probation. Burnell testified that although he had signed

the admonishments, he was still “wishy-washy” about what would happen to him

when he made his plea. Burnell also

stated that he himself did not really read the paperwork. As the sole judge of the credibility of the

witnesses, the trial court had the choice to accept or reject testimony that was

presented to it. Mattias v. State , 731 S.W.2d 936, 940 (Tex. Crim. App. 1987).

Although Burnell claims that he did not understand

what he was signing when he made his plea on January 20, 2010, the February 4,

2010 Level of Service Inventory-Revised from Burnell’s PSI reflects that

Burnell was aware that probation was not the only possibility. The report states that Burnell “Rpts he can

get from 5 – 99 TDC. Attny told him probation

is possible-maybe 7 – 10 years. Feels he

should get less time – 5 yrs, probation.” From

this report the court could find that Burnell knew that probation was possible,

but that he was also informed by his attorney that the range of sentences

including possible incarceration of up to ninety-nine years.

To support his claim of ineffective assistance in his

motion for new trial, Burnell presented an affidavit of his trial counsel

Ramond Howard. Although Howard asserts

in the affidavit that “it was the general consensus of the parties concerned

that Burnell was going to receive probation from the court” he goes on to state

that “[i]t was conceivable that [Burnell] may

not have understood that it was possible that he would not receive probation.”

(Emphasis added). Nowhere in the

affidavit does Howard state that he promised Burnell he would receive community

supervision if he pleaded guilty or advised Burnell that it was the only

possible outcome. See Fimberg , 922 S.W.2d at 208 (finding plea voluntary when

attorney denied promising appellant would not receive jail time and only

additional information on record reflecting promise were appellant and son’s

statements). In fact, in his affidavit

Howard also asserts that after he spoke to the District Attorney and she told

him that she thought the judge would probably

grant Burnell deferred adjudication, he shared this information with Burnell, who then agreed to pursue a plea

without a recommendation. The lack of a

promise of community supervision by the trial attorney in the record, together

with the showing in the PSI report that Burnell knew the range of punishment

included incarceration potentially up to ninety-nine years, are sufficient

evidence to find Burnell’s plea was voluntary.

Even if we were to find that Burnell was told that the

likelihood of community supervision was high, we cannot find this advice is

below the range of competence of a reasonable defense attorney. If a defendant is eligible for community

supervision, a trial counsel does not render ineffective assistance by advising

him to plead guilty under the expectation that there will be a lighter sentence

than what is ultimately received. See Graves v. State , 803 S.W.2d 342, 347

(Tex. App. — Houston [14th Dist.] 1990, pet. ref’d) (“Appellant was not denied

effective assistance of counsel by counsel’s inaccurate prediction that

appellant would receive probation if he entered a nolo contendere plea where

the record reveals no promises to appellant and that he was fully admonished

that the court could assess punishment anywhere within the statutory range.”).

In his second ineffective assistance argument, Burnell

asserts that his plea was not voluntary because trial counsel erred by not

fulfilling his duty to advise his client and instead delegated the duty to Burnell’s

mother. Burnell again relies on his

trial counsel’s affidavit in which his counsel states that he asked Burnell to

consult with his mother for further understanding of discussions Burnell had

with his counsel. Asking Burnell to

discuss a plea decision with his mother in order to clarify or explain the

possible outcomes of his plea is not so outside the range of actions of a

reasonably competent attorney to find counsel ineffective. See

Mata v. State , No. 01-98-00697-CR, 2000 WL 860813 at *3 (Tex. App. — Houston [1st Dist.] June 29,

2000, pet. ref’d) (not designated for publication) (plea voluntary even though

trial attorney reported appellant had low understanding of legal terms and he

had family explain legal issues to appellant).

In his third ineffective assistance argument, Burnell

argues that his attorney failed to tell the court that he had difficulty

communicating with Burnell and that he believed that Burnell lacked the mental capacity

to understand the consequences of his actions.

Although trial counsel’s affidavit states that Burnell was “immature for

his age” and that he continued to develop as a teenager through the process,

this does not amount to a showing that counsel had difficulty communicating

with Burnell or that he lacked the mental understanding of the consequences of

his actions. The trial court had the

opportunity to observe and interact with Burnell during the punishment phase of

trial and the hearing on the motion for new trial. As the PSI report shows, Burnell stated that

he knew the range of punishment was five to ninety-nine years, and that he had

discussed the range of sentence with his attorney. Although some evidence indicates that Burnell

may be developmentally behind his peers, the record supports a finding that

Burnell was able to communicate rationally and coherently throughout the

proceedings.

After reviewing the record, the trial court denied

Burnell’s motion for a new trial.

Burnell signed written admonishments stating that his plea was voluntary

and he acknowledged the range of possible sentences. The admonishment established a prima facie

showing that his plea was voluntary. See Mallett , 65 S.W.3d at 64 . Viewing the evidence in a light most favorable

to the trial court ruling and reviewing the record as a whole, we are unable to

say that the performance of appellant’s trial counsel fell below an objective

standard of reasonableness. See Thompson , 9 S.W.3d at 812 . As such, Burnell has not overcome the strong

presumption in favor of the reasonableness of counsel’s professional

assistance. See Strickland , 466 U.S.

at 689 , 104 S. Ct. at 2065 . Because Burnell

fails to meet the first prong of Strickland ,

we do not reach the second prong. See Mallett , 65 S.W.3d at 68 .

We overrule Burnell’s first issue.

Cruel and unusual punishment

In his second point of error, Burnell argues that the

trial court erred in assessing an “unconstitutional” punishment that violates

his right to be free from cruel and unusual punishment under both the federal

and Texas Constitution. He asserts his twenty-five

year sentence is categorically prohibited by the Eight Amendment as discussed

in Graham v. Florida . See

Graham , 130 S. Ct. at 2030 (a

juvenile offender cannot be sentenced to life in prison without parole for non-homicide

crimes).

A.

Federal Constitution

The Eighth Amendment, which forbids cruel and unusual

punishments, contains a narrow proportionality principle prohibiting a sentence

from being greatly disproportionate to the crime it punishes. See

Ewing v. California , 538 U.S. 11, 22 ,

123 S. Ct. 1179, 1186 (2003) (citing Harmelin

v. Michigan , 501 U.S. 957 , 996–997, 111 S. Ct. 2680, 2702 (1991) (Kennedy,

J., concurring in part and concurring in judgment)). Embodied in the Constitution’s ban on cruel

and unusual punishments is the “precept of justice that punishment for crime

should be graduated and proportioned to [the] offense.” Weems v. United States , 217 U.S. 349, 367 , 30 S. Ct. 544, 549

(1910). The Eighth Amendment does not

require strict proportionality between crime and sentence; rather, it forbids

only extreme sentences that are grossly disproportionate to the crime. See

Ewing , 538 U.S. at 23 , 123 S. Ct. at 1186–87 (citing Harmelin 501 U.S. 957 , 996–97, 111 S. Ct. 2680, 2702 (Kennedy, J.,

concurring)).

In Graham , the

Supreme Court of the United States stated that generally there are two

classifications of proportionality challenges to sentences. “The first involves challenges to the length

of term-of-years sentences given all the circumstances in a particular case.” Graham , 130 S. Ct. at 2021 . Under this

approach, courts must determine “whether a sentence for a term-of-years is grossly

disproportionate for a particular defendant’s crime.” Id.

at 2022 .

“The second classification of cases has used

categorical rules to define Eighth Amendment standards.” Id .

This classification consists of two

subsets, one considering the nature of the offense, the other considering the

characteristics of the offender. Id .

Burnell contends his sentence is categorically

prohibited because it involves sentencing a juvenile to a long term in

prison. Burnell argues that examining

the case to determine whether proportionality exists between the sentence and

offense is not sufficient to address issues of sentencing juveniles to long

terms of prison. Although he contends

that he is arguing the categorical approach as applied in Graham , his reading of Graham

is overbroad.

In Graham , the Supreme Court stated in that

particular case “a sentencing practice itself is in question. This case implicates

a particular type of sentence as it applies to an entire class of offenders who

have committed a range of crimes.” Id. at 2022 – 23. Although juveniles are

the class of offenders whose punishments can require the categorical approach

under Graham , the categorical

approach is not appropriate here as Burnell does not specify a “particular

type” of sentence but rather he merely argues against long sentences for

juveniles generally. Burnell ignores the fact

that Graham ’s holding concerns only

the punishment of life in prison without parole for juveniles who commit

non-homicide crimes. See Duran v. State , No. 01-10-00212-CR,

2011 WL 3918157 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (emphasizing

Graham ’s holding was narrow and

finding it inapplicable).

As we find the categorical approach inappropriate, we

will analyze Burnell’s Eighth Amendment claim under the approach laid out in Harmelin , 501 U.S. 957, 1005 , 111 S. Ct. at 2680, 2707 ; see also Graham , 130 S. Ct. at 2022 (stating that Harmelin ’s approach is suited for

considering grossly disproportionate challenge). Under the Harmelin

analysis, we examine whether a sentence for a term-of-years is grossly

disproportionate for a particular defendant’s crime. A court begins by making an objective

comparison of the gravity of the offense with the severity of the sentence. Graham ,

130 S. Ct. at 2022 (citing Harmelin ,

501 U.S. at 1005 , 111 S. Ct. at 2707 (Kennedy, J. concurring)); Mullins v. State , 208 S.W.3d 469, 470

(Tex. App.—Texarkana 2006, no pet.). If

that threshold comparison leads to an inference of gross disproportionality,

the court should then compare the defendant’s sentence: (1) with the sentences

imposed in other crimes in the same jurisdiction; and (2) with the sentences

imposed for the same crime in other jurisdictions. Graham ,

130 S. Ct. at 2022 (citing Harmelin ,

501 U.S. at 1005 , 111 S. Ct. at 2707 (Kennedy, J. concurring)); Mullins , 208 S.W.3d at 470 .

Aggravated robbery is a first degree felony. Tex. Penal Code Ann .

§ 29.03(b). Texas law provides an

individual adjudged guilty of a felony of the first degree shall be punished by

imprisonment in the Texas Department of Criminal Justice 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. Penal Code Ann . § 12.32(a), (b) (West

2011). Here, Burnell shot a firearm

eight times in an effort to flee the scene at which he was committing a

property crime. Two of those shots hit

the victim, Infante, resulting in injuries that caused temporary paralysis and

required physical therapy, as well as an extended recovery time. One bullet hit Infante’s wrist, requiring

placement of a metal plate in his arm. The

other bullet remains lodged in Infante’s spine and will remain there due to the

fact that its removal poses a risk of paralysis. Burnell’s sentence of twenty-five years, as

reformed by the trial court, fell well within the lower half of possible

sentences the court could have imposed for his offense. We cannot say that a sentence of twenty-five

years is grossly disproportionate to the violent nature of this crime.

B.

State Constitution

Although Burnell asserts in his brief’s heading that

his sentence constitutes cruel and unusual punishment in violation of the Texas

Constitution, he does not specify his reasoning. Texas courts have routinely held that

punishment that falls within the limits prescribed by a valid statute is not

excessive, cruel, or unusual. See, e.g . , Samuel v. State , 477 S.W.2d 611, 614

(Tex. Crim. App. 1972) (“where the punishment assessed by the judge or jury was

within the limits prescribed by the statute the punishment is not cruel and

unusual within the constitutional prohibition”); Ajisebutu v. State , 236 S.W.3d 309, 314 (Tex. App. — Houston [1st Dist.] 2007,

pet. ref’d) (“Generally, a sentence within the statutory range of punishment

for an offense will not be held cruel or unusual under the Constitution of

either Texas or the United States.”).

Here Burnell was sentenced to twenty-five years in

prison and did not receive a fine. His

punishment is within the statutory limits and therefore is not unconstitutional

under the Texas Constitution. See Tex.

Penal Code Ann .

§ 12.32(a), (b).

We overrule Burnell’s second issue.

Due Process

In his third issue, Burnell claims that his right to

due process was violated because the trial court erred in considering erroneous

evidence and evidence not rationally related to the case. Due process requires a neutral and detached

hearing body or officer. Brumit v. State , 206 S.W.3d 639, 645

(Tex. Crim. App. 2006) (citing Gagnon v.

Scarpelli , 411 U.S. 778, 786 , 93 S. Ct. 1756, 1762 (1973)). A trial court denies the defendant due process

when it arbitrarily refuses to consider the entire range of punishment for an

offense or refuses to consider mitigating evidence and imposes a predetermined

punishment. See Ex parte Brown , 158 S.W.3d 449, 454 (Tex. Crim. App.

2005). Absent a clear showing of bias, a

trial court’s actions will be presumed to have been correct. Brumit ,

206 S.W.3d at 645 . In his motion for new

trial, Burnell asserted the trial judge erroneously considered his own personal

experience with guns and Burnell’s father’s role in his life.

Burnell argues that the trial judge erred in commenting

on his own personal experience with a .45 caliber weapon and erred in assuming

that Burnell had father figures available to him throughout his life. Although the trial judge did make a reference

to personal knowledge of the type of gun during the pre-sentence investigation

hearing, he did so as he was considering the physical harm that resulted to

Infante from Burnell’s use of the gun. The

trial judge’s personal experience with the gun was ancillary to his relevant

discussion of the extensive injuries the bullets caused Infante, and there is

no showing that this brief comment is a reflection of bias on the part of the

trial court.

Burnell also argues that the trial court’s reference

to Burnell’s father figures was an error that violated his right to due

process. As with the comments concerning

the gun, the reference to Burnell’s father figures was a passing statement,

which we do not find to rise to the level of a due process violation. Regardless, Burnell was afforded the

opportunity to show the lack of positive influence provided by his father and

stepfather during the subsequent motion for new trial hearing, before the trial

court reformed his sentence to twenty-five years. At that hearing, Burnell presented testimony

from Burnell’s mother and uncle to the effect that Burnell’s father was not a

part of his life and that although his uncle took on the father role for a

short time, he was primarily without a father figure. The testimony of family members clarified the

role of Burnell’s father and stepfather and the trial court had the opportunity

to take it under review. Although the

trial court denied the motion for new trial, after hearing this additional

evidence the trial court reduced Burnell’s sentence by ten years.

Finally, Burnell contends that the trial court

incorrectly assessed his sentence based on an erroneous perception of Burnell’s

criminal history. He asserts that the

trial court assessed punishment while under the impression that Burnell had an

additional charge of assault and a felony for burglary of a habitation. Prior to the initial sentencing, the trial court

stated that “there have been numerous attempts at rehabilitation . . . you’ve

only responded by becoming more violent.”

Burnell failed to make this objection at trial and did not address this

issue in his motion for new trial. See Alexander v. State , 137 S.W.3d 127 ,

130–31 (Tex. App. — Houston [1st Dist.] 2004, pet. ref’d) (holding that failure to object to

violations of federal and state due process rights waives appellate review of

those claims). Even assuming that he had

made a timely objection to this statement, there was no showing of a due

process error. At the time of the

sentencing Burnell had a juvenile history of burglary of a habitation and had assaulted

a corrections officer while incarcerated for his current offense, both of which

the court could consider in sentencing. Although

at the motion for new trial hearing Burnell and his mother incorrectly

testified as to Burnell’s criminal history, the court was presented with

evidence in the PSI that clarified Burnell’s prior criminal record. As Burnell himself points out in his brief,

the police report explains that the original charge was listed as aggravated

assault even though he was later prosecuted for aggravated robbery. The trial court had this information for review

and absent a showing that it did not review the record we must presume it took

all information under advisement in making its ruling. There is no clear showing that the trial court

erroneously considered Burnell’s criminal background.

We overrule Burnell’s third issue.

Conclusion

We affirm the judgment of the trial court and deny as

moot the State’s motion to dismiss for want of jurisdiction.

Rebeca

Huddle

Justice

Panel

consists of Chief Justice Radack and Justices Bland and Huddle.

Do

not publish. Tex. R. App. P. 47.2 (b)

[1] We note that there is no record of an oral

pronouncement of the modified sentence

in

the presence of all of the parties. However,

this does not render the modified judgment void and neither party raised this

issue on appeal. See State v. Davis , 349 S.W.3d 535 , 538–39 (Tex. Crim. App. 2011). Indeed, both sides conceded at oral argument that

they had no complaint about the reduction of Burnell’s sentence to twenty-five

years’ confinement.