Michael Shane Nobles v. The State of Texas--Appeal from 241st District Court of Smith County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00153-CR

Michael Shane Nobles,

Appellant

v.

The State of Texas,

Appellee

From the 241st District Court

Smith County, Texas

Trial Court No. 241-1728-05

MEMORANDUM Opinion

Charged with aggravated assault, Michael Shane Nobles entered an open plea of guilty and, waiving his right to a jury trial, elected to have the trial judge sentence him. He concedes that he knew that the range of possible punishments was from 5 to 99 years or life in prison and a fine up to $10,000. After the judge reviewed the pre-sentence investigation report, including attached letters, heard evidence at the punishment hearing, took judicial notice of a non-prosecution affidavit, and heard arguments from counsel, he assessed fifty years in prison.

On appeal, Nobles says the sentence is disproportionate. The State disagrees and argues that a sentence falling within the range of punishment for an offense set by statute does not violate prohibitions against cruel and unusual punishment. Moreover, the State contends that Appellant failed to preserve this issue for review.

We first address the preservation issue. No objection was made at or after sentencing on the grounds that the sentence was disproportionate. On appeal, Nobles argues that the state of the trial record would not have supported such an objection and that it is a proper issue on appeal. We disagree. We believe that the right is a category three right under Marin, requiring an objection in the trial court. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Thus, this complaint has been waived.[1] Nevertheless, we will address the merits in the event preservation is not required. See id. (preservation rules apply to only category three rights).

We rely on decisions of the Tyler Court of Appeals in addressing this issue. E.g., Willis v. State, 192 S.W.3d 585 (Tex. App. Tyler 2006, pet. ref d); Buster v. State, 144 S.W.3d 71 (Tex. App. Tyler 2004, no pet.). In determining whether a sentence is grossly disproportionate, we consider not only the present offense but also an accused's criminal history. Buster, 144 S.W.3d at 81 (citing Davis v. State, 119 S.W.3d 359, 363 (Tex. App. Waco 2003, pet. ref'd). The legislature has the power to define crimes and prescribe penalties. Id. Further, if the sentence falls within the limits prescribed by a valid statute, the punishment is not excessive, cruel, or unusual. Id. Texas courts and the Fifth Circuit Court of Appeals require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the elements of the Solem test. Willis, 192 S.W.3d at 596 (citing Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983) (the proportionality of a sentence is evaluated by considering (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)).

Nobles argues that the sentence is disproportionate because he had been convicted of only one other felony, he did not actually shoot anyone, he suffers from a variety of ailments, and the victim did not want to prosecute him. The pre-sentence report noted that Nobles suffers from Hodgkin s disease, cancer, anxiety, severe depression, and insomnia.[2] The State points to the nature of the offense dragging and beating his pregnant girlfriend with a gun to her head while threatening her life, the enhancement with a prior felony to which Nobles pled true, the use of a firearm, and the fact that the punishment falls in the middle of the range set forth by the Legislature. The State further points to 12 prior convictions, a severe drug-abuse problem, and evaluations of high risk for future alcohol abuse, drug abuse, and violence.

We agree with the State. Nobles has not met the requirement of a threshold determination that the sentence is grossly disproportionate to the crime. See id. Thus, we overrule his issue.

We affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 1, 2007

Do not publish

[CRPM]

[1] In Hernandez v. State, 10 S.W.3d 812 (Tex. App. Beaumont 2000, pet. ref d), the court determined that the point on appeal did not raise systemic issues. Earlier, that court noted that issues involving cruel and unusual punishment are subject to procedural default. Hawkins v. State, 964 S.W.2d 767, 769 (Tex. App. Beaumont 1998, pet. ref d) (citing Wright v. State, 930 S.W.2d 131, 133 (Tex. App. Dallas 1996, no pet.)).

[2] The trial court ordered that the medical records from Noble s time in jail be forwarded to the Texas Department of Criminal Justice.