Larry E. Daugherty v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00119-CR

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LARRY EDWARD DAUGHERTY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31769-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Larry Edward Daugherty had multiple, prior felonies on his record before he robbed at gunpoint a Longview convenience store he had frequented as a paying customer. He pled guilty to the offense and true to the enhancement allegations, his punishment was submitted to a jury, and he received a life sentence. Daugherty complains that the life sentence was ordered stacked on a twenty-five-year sentence he had received in 1993 in Jefferson County, Texas, for felony possession of a controlled substance habitual offender. // See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2004 2005). Daugherty's two complaints concerning the stacking order are that it did not unequivocally demonstrate how long Daugherty should be detained and it causes excessive punishment, disproportionate to the offense. We affirm the trial court's judgment, because we hold that (1) neither complaint was preserved for our review, and, even if they had been, (2) the stacking order provides sufficient detail, and (3) the sentence is not disproportionate to the offense.

No Complaint Was Preserved for Review

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was timely made to the trial court, stating the grounds for the requested ruling from the trial court with "sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context . . . ." Tex. R. App. P 33.1(a)(1)(A). Daugherty's counsel argued against stacking in a brief dialogue with the trial court, which did not express or hint at either complaint he now asserts on appeal:

The Court: Mr. Dewitt, why I should not stack the sentence?

Mr. Dewitt: Given Mr. Daugherty's age - - he's 46, going to be 47 - - taking into consideration he's been rendered a life sentence, doing a minimum of 30 years, he's going to be 77.

That's a leap before he's eligible for parole. I would think that under those circumstances is found a hope, and I would hope that he would hope, that he may have the opportunity to someday get out of prison.

No objection to stacking was made except for the foregoing argument. Neither point brought on appeal was preserved for our review. Even if they had been, the stacking would survive Daugherty's points.

The Stacking Order Provides Sufficient Detail

Daugherty argues that "we do not know when, if ever, [Daugherty's] sentence will begin to run; because, we do not know the status of the parole." He argues that, because it is unclear whether the parole will be revoked, it is unclear when the sentence assessed here will begin and when it will end.

A trial court has discretion to order sentences to be served consecutively. Tex. Code Crim. Proc. Ann. art. 42.08(a). A valid cumulation order should provide sufficient specific information to allow the Texas Department of Criminal Justice to identify the prior conviction and sentence with which the newer conviction is to be cumulated. Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998); Ward v. State, 523 S.W.2d 681 (Tex. Crim. App. 1975). The trial court should incorporate a full description of the prior conviction in the interest of accuracy. Ex parte Lewis, 414 S.W.2d 682, 683 (Tex. Crim. App. 1967). An accurate description would include (1) the number of such prior conviction, (2) the correct name of the court in which the prior conviction was had, (3) the date of the prior conviction, and (4) the term of years assessed in the prior conviction. Id.

The sentencing order in this case stated:

It is further ADJUDGED and DECREED by this Court that the sentence pronounced herein shall begin after serving sentence in cause #58965 styled The State of Texas Vs. Larry Edward Daugherty in the Criminal District Court Jefferson County, Texas where the defendant received twenty-five (25) years in the Texas Department of Criminal Justice Institutional Division on 11th day of February, 1993, and that the Defendant is granted credit for 149 days served.

The order provides the required information for prison authorities to implement the trial court's order. When Daugherty was placed on parole status for the Jefferson County conviction, he had not yet fully discharged the judgment and sentence. // The sentence in this case will become effective when the sentence in cause number 58965 ceases to operate. That is sufficient. See Jimenez v. State, 634 S.W.2d 879, 882 (Tex. App. San Antonio 1982, pet. ref'd) (The court, relying on Hamm v. State, // reasoned that, despite the outcome of the first case, whether the first case was reversed or affirmed, the second sentence would become effective the moment the initial sentence ceased to operate.). No additional information is required to execute the cumulative sentence. We overrule Daugherty's first point of error.

The Sentence Is Not Disproportionate to the Offense

In his second point of error, Daugherty contends his sentence is disproportionate to his offense. Daugherty was convicted of aggravated robbery, a first-degree felony. See Tex. Pen. Code Ann. 29.03 (Vernon 2003). The punishment range for a first-degree felony is no less than five years, nor more than ninety-nine years or life. See Tex. Pen. Code Ann. 12.32 (Vernon 2003). If, however, it is shown on the trial of a first-degree felony that the accused has been previously and finally convicted of two felony offenses, "and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction [of the currently charged offense, the accused] shall be punished by imprisonment . . . for life, or for any term of not more than 99 years or less than 25 years." Tex. Pen. Code Ann. 12.42(d) (Vernon Supp. 2004 2005). In this case, Daugherty pled true to having been previously, finally, and sequentially convicted of at least two non-state-jail felonies, thereby enhancing the minimum sentence in this case to twenty-five years.

Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). In Jackson v. State, 989 S.W.2d 842, 845 (Tex. App. Texarkana 1999, no pet.), however, we recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App. Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68 69 (Tex. App. Texarkana 2000, pet. ref'd).

Our proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution is guided by (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App. Tyler 1996, pet. ref'd) (evaluating appellant's Texas constitutional claim of cruel and unusual punishment under test outlined in Solem). Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664 65 (Tex. App. Texarkana 1995, pet. ref'd).

There is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. See Fluellen, 71 S.W.3d at 873; Latham, 20 S.W.3d at 69; Davis, 905 S.W.2d at 664 65. Therefore, there is no showing that the sentence was disproportionate or excessive.

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 15, 2005

Date Decided: March 30, 2005

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