Juan David Bernal v. The State of TexasAppeal from Criminal District Court 3 of Tarrant County (memorandum opinion by chief justice stone)
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00768-CR Juan David BERNAL, Appellant v. The State of The STATE of Texas, Appellee From the Criminal District Court 3, Tarrant County, Texas Trial Court No. 1297786D The Honorable Robb Catalano, Judge Presiding Opinion by: Catherine Stone, Chief Justice Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice Delivered and Filed: July 9, 2014 AFFIRMED Juan David Bernal pled guilty to aggravated robbery with a deadly weapon and was sentenced to 15 years imprisonment. On appeal, Bernal contends his sentence constitutes cruel and unusual punishment. We affirm the trial court s judgment. 04-13-00768-CR BACKGROUND Bernal was charged by indictment with aggravated robbery with a deadly weapon. 1 Bernal pleaded guilty without the benefit of a plea bargain agreement. At sentencing, mitigating evidence was proffered by the defense, including evidence that Bernal had no bond violations, attended required court hearings, maintained employment, and pled guilty to the offense. Evidence also established that Bernal s fiancée was approximately eight months pregnant. Ultimately, the trial judge found Bernal guilty of aggravated robbery with a deadly weapon and sentenced him to 15 years imprisonment without assessing a fine. PRESERVATION OF ERROR To preserve a complaint that a sentence constitutes cruel and unusual punishment, a defendant must object at trial or properly present the complaint in a motion for new trial. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Sample v. State, 405 S.W.3d 295, 303 04 (Tex. App Fort Worth 2013, pet ref d); TEX. R. APP. P. 33.1(a). In this case, Bernal made no objection regarding his punishment at trial and did not timely present his motion for new trial to the trial court for consideration. See TEX. R. APP. P. 21.6. Therefore, Bernal has waived his right to appeal on this issue. CRUEL AND UNUSUAL PUNISHMENT Even if Bernal had properly preserved this issue for our review, a punishment is generally not cruel or unusual if it falls within the statutory punishment range for the offense unless the sentence is grossly disproportionate to the offense. Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App. Fort Worth 2001, no pet.). The statutory range for the first-degree felony of aggravated robbery with a deadly weapon is 5 years to life imprisonment, and up to a $10,000 fine. See TEX. 1 Although the indictment also included an enhancement allegation, the State waived the enhancement as reflected in the judgment. -2- 04-13-00768-CR PENAL CODE ANN. §§ 12.32, 29.03 (West 2011). Bernal received a sentence on the low end of the statutory range; therefore, his punishment is not excessive. In determining whether a sentence is grossly disproportionate, the following three criteria are analyzed: 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 the same offense in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983). We judge the gravity of the offense in light of the harm caused or threatened to the victim or society and the culpability of the offender. Alvarez, 63 S.W.3d at 581 (citing Moore v. State, 54 S.W.3d 529, 542 (Tex. App. Fort Worth 2001, pet ref d)). Only if we determine that the sentence is grossly disproportionate under the first factor do we consider the remaining Solem factors. Id.; see also Robertson v. State, 245 S.W.3d 545, 549 (Tex. App. Tyler 2007, pet ref d). Bernal pled guilty to aggravated robbery with a deadly weapon which is a first-degree felony. At the sentencing hearing, Bernal s attorney acknowledged that this is a very egregious case and the testimony at the plea hearing showed the severity of the matter. The State also noted that the offense was very violent and that Bernal indiscriminately chose his victim. Furthermore, Bernal committed the offense while on parole from the Texas Juvenile Justice Department for drug dealing. Finally, the trial court noted the victim in the case was hurt really badly. In comparison to the gravity of the offense, Bernal received a relatively lenient sentence at the lower end of the statutory range. Therefore, having considered the gravity of the offense and the sentence imposed, we hold Bernal s sentence of 15 years imprisonment is not grossly disproportionate to the offense. Accordingly, we need not consider the other two Solem factors. Alvarez, 63 S.W.3d at 581. -3- 04-13-00768-CR CONCLUSION The judgment of the trial court is affirmed. Catherine Stone, Chief Justice DO NOT PUBLISH -4-
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