The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00403-CR
NO. 03-19-00426-CR
Quincy Davis, Appellant
v.
The State of Texas, Appellee
FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY
NOS. D-1-DC-18-500247 & D-1-DC-18-500248,
THE HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
In two cases consolidated for trial, a jury convicted appellant Quincy Davis of the
offenses of aggravated robbery and robbery. See Tex. Penal Code §§ 29.02, .03. Davis elected
to have the district court assess punishment, and the district court sentenced Davis to fifteen
years’ imprisonment for each offense, with the sentences to run concurrently. In a single point of
error on appeal, Davis asserts that his sentences were disproportionate to the charged offenses.
We will affirm the judgments of conviction.
BACKGROUND
The State charged Davis with committing two aggravated robberies in the early
morning hours of May 11, 2018. At trial, the jury heard evidence that the robberies were
committed at Community First Village, a community that serves individuals transitioning out of
homelessness. Davis was a former resident of the community. The victims were current
residents Fred Ojeda and Stephen Sleeper, both of whom were 64 years old at the time of the
robberies.
Ojeda testified that at approximately 2:30 a.m., as he was walking to his house, he
noticed somebody walking behind him and “getting closer.” When Ojeda opened his front door,
this person, identified in court as Davis, pushed Ojeda into the house, causing Ojeda to fall
forcefully onto his bed and bruise his knee. Davis then pressed a folding knife or some other
sharp object to Ojeda’s throat and demanded money. Ojeda gave Davis fifteen dollars, and
Davis left the residence, threatening Ojeda that “[i]f you tell anyone about this, I’m going to
come back.”
Approximately twelve minutes later, Davis knocked on the door to Sleeper’s
residence. Sleeper, who is physically disabled and uses a wheelchair for mobility, testified that
he answered the door and recognized Davis, who had done odd jobs for Sleeper in the past.
Sleeper let Davis into his house, whereupon Davis pressed his arm against Sleeper’s neck, hit
Sleeper in the head when Sleeper began screaming for help, and demanded money. Sleeper gave
Davis three dollars, and Davis left the residence.
Ojeda and Sleeper each called the police to report the incidents. Officers
interviewed them and documented their injuries, photographs of which were admitted into
evidence. Ojeda had an abrasion below his right knee and a red mark between his chin and his
throat. Sleeper had a red mark over his eyebrow and a red mark on his neck, near his throat.
The jury found Davis not guilty of aggravated robbery but guilty of the lesser-
included offense of robbery against Ojeda. The jury found Davis guilty of aggravated robbery
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against Sleeper (aggravated due to Sleeper’s status as a “disabled person”). At the punishment
hearing before the district court, Davis pleaded true to an enhancement paragraph alleging a prior
conviction for the offense of evading arrest. The district court admitted into evidence copies of
pen packets showing that Davis also had prior convictions for the offenses of burglary of a
habitation in 1991, 1997, and 2002; burglary of a building in 1999; and assault-family violence
in 2010. The district court also admitted into evidence a “determination of intellectual disability
report” on Davis showing that he had a “moderate intellectual disability” and medical records
showing that Davis had a history of mental illness. The district court sentenced Davis to 15
years’ imprisonment for the robbery offense and 15 years’ imprisonment for the aggravated-
robbery offense, with the sentences to run concurrently. Davis later filed an amended motion for
new trial, which was overruled by operation of law. This appeal followed.
DISCUSSION
In his sole point of error, Davis asserts that his sentences were disproportionate to
the seriousness of the charged offenses. According to Davis, he should not have received
“fifteen years for stealing eighteen dollars.”
As an initial matter, the State argues that Davis failed to preserve this point of
error for our review. We agree. “Ordinarily, to preserve an issue for appellate review, an
appellant must have first raised the issue in the trial court.” Burt v. State, 396 S.W.3d 574, 577
(Tex. Crim. App. 2013) (citing Tex. R. App. P. 33.1(a)). “A sentencing issue may be preserved
by objecting at the punishment hearing, or when the sentence is pronounced.” Id. When an
appellant does not have an opportunity to object at the punishment hearing, “an appellant may
preserve a sentencing issue by raising it in a motion for new trial.” Id. at 577 & n.4.
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Here, Davis failed to raise any complaint regarding his sentence either at the time
it was pronounced in open court or later in his amended motion for new trial (he also did not
raise the issue in his original motion for new trial). Accordingly, Davis has failed to preserve his
complaint for review. See Tex. R. App. P. 33.1(a).
Moreover, even if this complaint had been preserved, we could not conclude on
this record that Davis’s sentences were “grossly disproportionate” to his offenses. “The concept
of proportionality is embodied in the Constitution’s ban on cruel and unusual punishment and
requires that punishment be graduated and proportioned to the offense.” State v. Simpson, 488
S.W.3d 318, 322 (Tex. Crim. App. 2016) (citing U.S. Const. amend VIII). “But, this is a narrow
principle that does not require strict proportionality between the crime and the sentence.” Id.
(citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)). “Rather, it
forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. (citing
Ewing v. California, 538 U.S. 11, 23 (2003) (plurality opinion)). Generally, “punishment
assessed within the statutory limits, including punishment enhanced pursuant to a habitual-
offender statute, is not excessive, cruel, or unusual.” Id. at 323 (citing Ex parte Chavez, 213
S.W.3d 320, 323–24 (Tex. Crim. App. 2006)).
“To determine whether a sentence for a term of years is grossly disproportionate
for a particular defendant’s crime, a court must judge the severity of the sentence in light of the
harm caused or threatened to the victim, the culpability of the offender, and the offender’s prior
adjudicated and unadjudicated offenses.” Id. (citing Graham v. Florida, 560 U.S. 48, 60 (2010)).
In most cases, the analysis ends there. However, “[i]n the rare case in which this threshold
comparison leads to an inference of gross disproportionality, the court should then compare the
defendant’s sentence with the sentences received by other offenders in the same jurisdiction and
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with the sentences imposed for the same crime in other jurisdictions.” Id. “If this comparative
analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is
cruel and unusual.” Id.
In this case, Davis was convicted of two offenses, aggravated robbery and
robbery. The aggravated robbery was a first-degree felony enhanced by a prior felony
conviction. See Tex. Penal Code § 29.03(b). Accordingly, the range of punishment for that
offense was imprisonment for “life, or for any term of not more than 99 years or less than 15
years.” Id. § 12.42(d). Davis was sentenced to 15 years’ imprisonment for that offense, the
statutory minimum. Moreover, because the robbery was aggravated, Davis could not have been
placed on community supervision for that offense. See Tex. Code Crim. Proc. art. 42A.054(11).
The robbery was a second-degree felony enhanced by a prior felony conviction.
Id. § 29.02(b). The range of punishment for that offense was imprisonment “for life or for any
term of not more than 99 years or less than 5 years.” Tex. Penal Code § 12.32(a). Davis was
sentenced to 15 years’ imprisonment for that offense, which is at the lower end of the
punishment range. The sentence for the robbery offense was to be served concurrently with the
sentence for the aggravated-robbery offense.
Additionally, although Davis claims that these were not serious offenses because
he stole fifteen dollars from one victim and three dollars from another, the circumstances of the
offenses included more than the amount of money stolen. The victims were two men in their
60s, both of whom were attempting to transition out of homelessness and one of whom was
physically disabled and in a wheelchair. Davis robbed the victims in their homes late at night,
using his relationship with Sleeper to gain entry into his home and forcing his way into Ojeda’s
home. Davis also assaulted and threatened both victims during the robberies. He knocked Ojeda
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forward onto his bed and held a knife or other sharp object against his throat. He pressed his arm
against Sleeper’s neck and hit him in the head when Sleeper began screaming. Davis’s actions
visibly injured both victims. Moreover, Davis had an extensive criminal history that included a
conviction for assault-family violence and multiple convictions for burglary of a habitation.
Finally, there is nothing in the record to suggest that as a result of Davis’s intellectual disability
or his history of mental illness, his mental state at the time of the offenses was such that he was
not culpable for the robberies that he committed. On this record, we cannot conclude that
Davis’s sentences were “grossly disproportionate” to his offenses, even if we were to assume
that Davis preserved this issue for review.
We overrule Davis’s sole point of error.
CONCLUSION
We affirm the district court’s judgments of conviction.
__________________________________________
Gisela D. Triana, Justice
Before Justices Goodwin, Triana, and Smith
Affirmed
Filed: January 8, 2020
Do Not Publish
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