RAYKESHIA GWENNETT SPEARS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed September 21, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01112-CR
No. 05-09-01113-CR
 
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RAYKESHIA GWENNETT SPEARS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F09-40001-SI, F09-71076-TI
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MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
        Raykeshia Gwennett Spears appeals her convictions for robbery and aggravated robbery of an elderly person. In two issues, appellant contends the sentences in these cases constitute cruel and unusual punishment, and the trial court abused its discretion in sentencing appellant to imprisonment. We affirm. The background of these cases and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the cases is well settled.
 
Background
 
        Appellant waived a jury and pleaded guilty to robbery and aggravated robbery of an elderly person. See Tex. Penal Code Ann. § 29.02(a)(1), 29.03(a)(3)(A) (West Supp. 2009). The record shows that the two victims of the offenses testified during the punishment hearing, as did appellant, establishing that on December 31, 2008, appellant committed an aggravated robbery when she helped her sister take a purse from an eighty-year-old woman. Appellant waited in a vehicle while her sister grabbed the woman's purse, knocking the woman to the ground. Then the sister jumped into the vehicle and appellant sped away from the scene. On that same day, appellant committed a robbery when she sprayed a chemical substance into the face of another woman and took the woman's purse. After finding appellant guilty, the trial court assessed punishment at ten years' imprisonment in each case, and a $500 fine in the aggravated robbery case.
        Appellant timely filed a motion for new trial in each case, alleging the verdicts were contrary to the law and the evidence. Appellant also timely filed amended motions for new trial asserting the verdicts were contrary to the law and the evidence, the sentences constituted cruel and unusual punishment, and the sentences violated the objectives of the penal code. The trial court denied the motions without a hearing.
Cruel and Unusual Punishment
 
        In her first issue, appellant contends the ten-year sentences constitute cruel and unusual punishment, in violation of the United States and Texas Constitutions. See U.S. Const. Amend. VIII, XIV; Tex. Const. Art. I, § 13. Appellant asserts that in light of the fact that she was a teenager at the time she helped her sister commit the offenses, she was remorseful, and she has no adult criminal history, the sentences are overly harsh and disproportionate to the offenses. The State responds that the sentences are neither cruel nor unusual.         It is undisputed that the sentences imposed by the trial court were within the range of punishment authorized by statute. Robbery is a second-degree felony punishable by imprisonment for a term from two to twenty years and an optional fine not to exceed $10,000; aggravated robbery is a first-degree felony punishable by imprisonment for a term from five to ninety-nine years or life and an optional fine not to exceed $10,000. See Tex. Penal Code Ann. §§ 29.02(b), 29.03(b) (West Supp. 2009). Moreover, as long as the punishment assessed is within the range authorized in a valid statute, the punishment is not excessive, cruel, or unusual. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). We do recognize, however, that a prohibition against grossly disproportionate sentences survives under the federal constitution apart from any consideration whether the punishment assessed is within the statute's range. See Delacruz v. State, 167 S.W.3d 904, 906 (Tex. App.-Texarkana 2005, no pet.).
        Most Texas appellate courts follow and apply the Fifth Circuit's McGruder analysis that includes three factors in addressing Eighth Amendment proportionality complaints. See Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.-Dallas 1994, pet. ref'd); see also McGruder v. Puckett, 954 F.2d 313 (5th Cir 1992). Under McGruder, we first conduct a threshold comparison of the gravity of the offenses underlying the current convictions as well as the offenses underlying prior convictions against the severity of the sentences. Id. at 316. The test, then, is whether the sentences are grossly disproportionate to the gravity of the offenses upon which the sentences are based. See Winchester v. State, 246 S.W.3d 386, 390 (Tex. App.-Amarillo 2008, pet. ref'd). The remaining two factors involve comparing the sentences received to sentences for similar crimes in this jurisdiction and sentences for the same crime in other jurisdictions. See McGruder, 954 F.2d at 316. Only if we find the sentences are grossly disproportionate to the offenses should we proceed to the remaining two factors. See Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991); see also McGruder, 954 F.2d at 316..
        Here, appellant entered a plea of guilty to committing both offenses on the same day. The trial court heard testimony from the eighty-year-old victim who sustained a broken elbow during the aggravated robbery when appellant's sister grabbed the woman's purse and knocked her to the ground. Appellant drove the getaway vehicle. That offense occurred at around 10:30 a.m. At about 1:00 p.m., appellant sprayed a second woman twice in the face with a chemical spray and took the woman's purse. During her testimony, appellant admitted she helped her sister rob an elderly woman in the morning, they went shopping with the woman's credit cards, then that afternoon appellant sprayed another woman with a chemical and took the woman's purse. Additionally, the trial court heard testimony regarding appellant's juvenile criminal history that included convictions for assault-family violence, criminal mischief, and theft.
        Having considered the foregoing evidence, we cannot say the trial court's determination was disproportionate to the conduct proven in these cases. See McGruder, 954 F.2d at 316. Accordingly, we need not address the remaining factors. Id. We resolve appellant's first issue against her.
Abuse of Discretion
 
        In her second issue, appellant contends the trial court abused its discretion by sentencing her to imprisonment because such punishment violates the objectives of the penal code and is not necessary to prevent the recurrence of an offense. Appellant asserts that at the time of sentencing, she was only twenty years of age, was successfully employed, and would have continued her employment if she had been placed on probation. The State responds that the trial court did not abuse its discretion by sentencing appellant within the range authorized by law.
        Appellant cites sections 1.02(1)(C) and 1.02(3) of the penal code to argue that a sentence of imprisonment was not necessary to prevent the recurrence of the alleged offenses, and it did not satisfy the objective of rehabilitating appellant or permit recognition of differences in rehabilitation possibilities among offenders. See Tex. Penal Code Ann. § 1.02 (West 2003). Appellant's contention that her prison sentences are unnecessarily harsh is refuted by the fact that they are well within the statutory range of punishment for each offense. See id. § 29.02(b), 29.03(b). Moreover, in light of appellant's juvenile criminal history beginning at age eleven, it was reasonable for the trial court to impose a prison sentence. See Tex. Penal Code Ann. § 1.02(a)(A) (penal code also recognizes the objective of deterrence).
        We conclude the trial court did not abuse its discretion in assessing the ten-year sentences. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal). We resolve appellant's second issue against her.
        In each case, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
091112F.U05