Perry Rosland Smith v. The State of Texas--Appeal from 122nd District Court of Galveston County

Affirmed and Memorandum Opinion filed November 20, 2007

Affirmed and Memorandum Opinion filed November 20, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00829-CR

NO. 14-06-00830-CR

NO. 14-06-00831-CR

NO. 14-06-00832-CR

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PERRY ROSLAND SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause Nos. 05CR0463, 05CR0464, 05CR0465, 05CR0466

M E M O R A N D U M O P I N I O N

Appellant entered pleas of guilty to four felony offenses and true to two enhancement paragraphs in each indictment. The indictments charged aggravated robbery with two enhancements (05CR0463), robbery with two enhancements (05CR0464), robbery with two enhancements (05CR0465), and aggravated robbery with two enhancements (05CR0466). Appellant=s pleas were entered without an agreed recommendation on punishment. The trial court held a punishment hearing and assessed appellant=s punishment at fifty years= confinement for each offense, the sentences to run concurrently. In two issues, appellant contends (1) the evidence is legally and factually insufficient to support the sentences in three of his convictions, and (2) the trial court was unfairly influenced in the cases in which testimony was offered. We affirm.

Background

At the punishment hearing, two complainants testified about robberies committed by appellant. Veronica Delange first testified that she and Diane Hood were in Delange=s antique shop in downtown Texas City when appellant came in the door at approximately 3:00 in the afternoon. Appellant demanded all of Delange=s money and pushed Hood toward the front of the store where the cash register was located. Appellant told both women that he would kill them if they did not give him all of their money. When Hood attempted to run away, appellant hit her and knocked her down. Delange tried to help Hood, but appellant hit her in the stomach, which caused Delange to fall to the floor. Appellant threatened again to kill both women if they did not get off of the floor and give him their money. Appellant pulled the women to their feet, pushed them toward the cash register, and demanded that they open the register and give him the money. Appellant took approximately thirty dollars from the cash register and took the money from Hood=s purse. As he left, appellant picked up the telephone receiver, told the women not to call the police, and threw the receiver on the floor. Delange is the complainant in cause number 05CR0465. Hood is the complainant in cause number 05CR0464.

Carl Nessler, the complainant in cause number 05CR0463, testified that appellant walked into his tax services office at approximately 3:00 p.m. on February 14, 2005. Appellant asked about tax services, then asked to use the restroom. When appellant came out of the restroom, he grabbed Nessler by the collar, shook his fists in Nessler=s face, and said, AThis is a robbery. Give me your money.@ Nessler gave appellant the money he had in his wallet. Appellant forced Nessler to write his home address on a piece of paper, and threatened Nessler if he called the police. Appellant took Nessler=s pocket knife, and, as he left, pulled the telephone cord out of the wall.

Following Nessler=s testimony, the trial court took judicial notice of the indictment in cause number 05CR0466, which charged appellant with placing Allen Thomas in fear of imminent bodily injury or death and using or exhibiting a deadly weapon in the course of a robbery.

Legal and Factual Sufficiency

In his first issue, appellant contends the evidence is legally and factually insufficient to support a sentence of fifty years in cause numbers 05CR0464, 05CR0466, and 05CR0467.[1] Appellant=s argument under this issue rests on the prosecutor=s statement at the beginning of the punishment hearing that, AThere are two other cases, Your Honor, that we are not going to offer punishment evidence on for various reasons.@ Appellant contends that because the State failed to produce punishment evidence on two of the robbery convictions, the evidence is legally and factually insufficient to support his sentences.

Initially, we address whether a sufficiency of the evidence review is appropriate in the context of a complaint about punishment. When reviewing the legal sufficiency of the evidence, this court determines Awhether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.@ Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). The Court of Criminal Appeals extended factual sufficiency review to include Athe elements of the offense.@ Clewis v. State, 922 S.W.2d 126, 136 (Tex. Crim. App. 1996). The determination of the elements of the offense, however, is different from the assessment of the amount of punishment. Bradfield v. State, 42 S.W.3d 350, 352 (Tex. App.CEastland 2001, pet. ref=d). When assessing punishment, guilt has been decided and the focus of the factfinder is determining the appropriate consequences for that guilt. Id. There is no requirement of Asufficient evidence@ to support sentencing. A[B]y and large there are no discreet factual issues at the punishment stage.@ Miller-El v. State, 787 S.W.2d 892, 895B96 (Tex. Crim. App. 1990). Appellate courts only review the sufficiency of the evidence in a punishment context where there is an issue of fact to be decided by the factfinder such as the mitigation issues in a capital case. See Wardrip v. State, 56 S.W.3d 588, 590B91 (Tex. Crim. App. 2001) (Jury=s finding on deliberateness can be reviewed for sufficiency because it is a finding of historical fact). To conduct a legal or factual sufficiency review of the determination of punishment, we must extend the standards announced in Jackson and Clewis, and we decline to do so. Appellant=s first issue is overruled.

Punishment

In his second issue, appellant contends the trial court was unfairly influenced because no testimony was offered during the punishment hearing with regard to one of the offenses. Appellant made no objection to his punishment at the trial court. By failing to raise the issue of unfair punishment, appellant waived error on appeal. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).

Further, even if appellant had preserved review, his sentences were within the statutory range and are not excessive. The legislature defines crimes and prescribes penalties. Jacobs v. State, 80 S.W.3d 631, 633 (Tex. App.CTyler 2002, no pet.). Punishment that falls within the statutory guidelines is not excessive, cruel or unusual. Id. As long as the punishment assessed by the judge or jury was Awithin the limits prescribed by the statute the punishment is not cruel and unusual within the constitutional prohibition.@ Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); see also Servin v. State, 745 S.W.2d 40, 41B42 (Tex. App.CHouston [14th Dist.] 1987, no writ).

Appellant entered pleas of guilty to four felony offenses of robbery and aggravated robbery and true to two enhancement paragraphs in each indictment. At the punishment hearing, the trial court heard direct testimony from the victims of two of the robberies, and evidence from Delange about the robbery of Hood. Before assessing punishment, the trial court reviewed not only the witnesses= testimony, but the photographs, medical records, and penitentiary packets admitted into evidence. The range of punishment for each offense is twenty-five years to life. See Tex. Penal Code Ann. ' 12.42(4)(d). The trial court assessed appellant=s punishment at fifty years= confinement, well within the statutory range. Therefore, appellant=s punishment is not excessive and we overrule his second issue.

The judgment of the trial court is affirmed.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed November 20, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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

[1] Appellant specifically lists three cause numbers, two of which are part of this appeal. The third cause number, 05CR0467, references a case that was dismissed in March, 2005.