John Elwin Hanson 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. 06-03-00196-CR

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JOHN ELWIN HANSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30353-B

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

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

John Elwin Hanson entered a plea of guilty to the offense of robbery and true to an enhancement paragraph. With the enhancement allegation, the range of punishment was imprisonment for life or for any term of not more than ninety-nine years or less than five years and a fine not to exceed $10,000.00. Tex. Pen. Code Ann. 12.42(b) (Vernon Supp. 2004). Hanson elected to have the jury assess his punishment. A jury trial was conducted on the punishment issue, and the jury assessed punishment at forty years' confinement. Hanson appeals on the sole issue that the sentence is disproportionate to the offense. We affirm the judgment of the trial court.

On February 3, 2003, Hanson entered a Texaco service station in Liberty City and approached the clerk. With his hand wrapped in a towel, he demanded that the clerk give him the money from the cash register. The clerk testified, "I did not know what he had in that towel, and I wasn't going to take any chances." After the clerk gave him approximately $150.00 from the register, he left, went to a nearby Dairy Queen, ordered tacos, and stayed there for more than an hour. He was found, arrested, identified, and taken into custody that same night.

Disproportionate Sentence Allegation

We have previously held that the failure to present the issue of disproportionate sentencing to the trial court waives error on appeal. Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App. Texarkana 2002, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App. Texarkana 1999, no pet.). No such objection was made here, and the error was waived.

Even if error were preserved, we find the sentence is not disproportionate. The United States Supreme Court in Solem v. Helm, 463 U.S. 277, 284 (1983), held the Eighth Amendment (U.S. Const. amend. VIII) prohibits sentences that are disproportionate to the crime. The Solem test requires a three-part analysis: (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 id. at 292. As we noted in Davis v. State, 905 S.W.2d 655, 664 (Tex. App. Texarkana 1995, pet. ref'd), the United States Supreme Court modified the Solem test in Harmelin v. Michigan, 501 U.S. 957 (1991). It is now recognized that, under the United States and Texas Constitutions, 1) a prohibition against "grossly disproportionate" sentences survives independently of legislative punishment ranges, and 2) a modified Solem analysis applies. Under the Solem proportionality analysis as modified by Harmelin, we initially make a threshold comparison of the gravity of the offense against the severity of the sentence and then consider whether the sentence is grossly disproportionate to the offense. Only if we find that the sentence received 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. Davis v. State, No. 06-03-00201-CR, 2003 Tex. App. LEXIS 10562, at *4 (Tex. App. Texarkana 2003, no pet.); Jackson, 989 S.W.2d at 846.

Here, the gravity of the offense is not disproportionate to the severity of the sentence. At trial, Hanson pled guilty to robbery, a second-degree felony which was enhanced by a prior felony, making his sentence a first-degree felony with a maximum punishment of life imprisonment. This offense alleged Hanson placed the victim "in fear of imminent bodily injury or death." The evidence shows he had been previously convicted of at least five felonies, including burglary and robbery, and of numerous misdemeanor theft charges. In 1993, he was sentenced to fifteen years' confinement for burglary. In 2003, he was sentenced to twenty years' confinement for robbery.

In explaining his background, Hanson states that he is thirty-eight years of age; his parents are deceased; he has a "real bad" drug problem; when he went to prison previously, he had no drug treatment; he has worked in the oil field; he lost his job because he failed a drug test; at the time of this robbery, he was homeless, had no job, no transportation, and was hungry; he never threatened the victim of this robbery; and he did not have a weapon at the time of the robbery; and was sorry for what he had done.

Considering the gravity of this offense and Hanson's criminal history, we do not find the severity of the sentence to be grossly disproportionate to the gravity of the crime. We overrule the point of error and affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: February 27, 2004

Date Decided: March 9, 2004

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