### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00776- CR NO. 03-12-00777- CR NO. 03-12-00778- CR

Shaw n Th om as King, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NOS . 684 63, 6 9564 , 702 72 H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Shawn Thomas King appea ls the trial court’s judgme nts (1) adjudicating him g uilty of burg lary of a habitation, see Tex. P en al Code Ann. § 30.02 (West 2011) (our

caus e number 03-12-00776- CR), and (2) convicting him of two separ ate offe nses of ag g rava ted robber y with a deadly wea

pon, see Tex. Pe n al C o d e Ann. § 29.03 (West 2011) (our cause numbers 03-12-00777- CR and 03-12-00778- CR). I n two issues, appellant arg ues, first, that th e
sentenc es he rec eived for the ag g rava ted robber y convictions amount to cruel and unusual punishment and, second, that g overnme nt code section 508.145(d)( 1), which require s that he serve

a m an d at o ry sentenc e of the lesser of one-ha lf the sentenc e imposed or thirty y ear s befor e parol e elig ibi l i t y , violates the separ ation of power s provision of article I I , section one of the TexasConstit ution. See Tex. Const. art. I I , § 1; Tex. Gov’t Code Ann. § 508.145(d)( 1) (West 2012). We 1
will affirm.

BACK GR OUND

I n September 2011, appellant pleade d g uilty to the second- deg ree felony offe nse of burg lary of a habitation. The trial co u rt en t er ed an order of defe rre d adjudication and place d appellant on community supervision for a period of ten y ea rs . I n Au gust 2012, the State filed a motion to adjudicate on the g round that appellant had violated th e t er m s an d conditions of his community s u pervision by , among other things, committing ag g rava ted robber y with a deadly

wea pon on J anuar

y 26, 2012. I n separ ate cause numbers, appellant was char g ed by indictment with the offe nse of ag g rava ted robber y with a deadly wea

pon on J anuar

y 26, 2012, and with committing the same offe nse ag ain on May 3, 2012. At a joint proce eding on all three cause s, appellant enter ed

a plea of true to the alleg ations in the motion to adjudicate and pleade d g uilty to b o t h case s of
ag g rava ted robber y . At a punishment hear ing in November 2012, the trial court revoke d appellant’ s community supervision and assess ed p u n i shment for the offe nse of burg lary of a habitation at 20 y ear s’ imprisonment in the I nstitut ional Division of the Texas Depar tment of Criminal J ustice.
I t also assessed punishment for eac h of the ag g rava ted rob b ery convictions at 60 y ear s’ imprisonment. All three sentenc es wer e order ed serve d concur rently

. Be caus e t h e j u d g ments of conviction for ag g rava ted robbery included a finding that appellant used or exhibi ted a deadly

wea pon, he is not elig ible to be considere d for parole until he has serve d thirty y ear s of his sentenc e.

Be cause the issues on appea l in each of the three cause s are identical, appe llant has filed 1 a sing le brief

. We will dis pose of a ll three c auses in one opinion. 2See Tex. Gov’t Code Ann. § 508.145(d)( 1). The trial court certified appellant’s right to appea l in

all three case s, and appe llant perfe cted this appe al.

DISCUSSIO N
I n h i s fi rst issue, appellant contends that the assessment of the 60-y ear sentenc es, coupled with the deadly -we apon fi n d i ng s that result in his being ineligible for parole until he has

serve d 30 y ear s, constitutes crue l and unusual punishment in violation of the Eig hth Amendment to the Unite d States Constit ution beca use, considering contempora ry national standards of dece ncy , the
sentenc e is g rossly

disproportionate to the offe nse. Appellant, howeve r, waived this c omplaint by failing to object to the assesse d punishment at sentencing or to raise the i ssue i n a mot ion for new trial. See Kim v. State , 283 S.W .3d 473, 475 (Tex. App.—For t Worth 2009, no pet.) (“To prese rve

err or for appellate revie w a complaint that a sentenc e is g rossly disproportionate, constituting crue l and unusual punishment, a defenda nt must present to the trial cour t a timely reque st, objection, or motion stating the specific g rounds for the ruling desired.” ); see also Tex. R. App. P. 33.1(a) ; Curry
v. Stat e , 910 S.W .2d 490, 497 (Tex. Crim. App. 1995) (wa iver with reg ard to rig hts under United
States Constit ution). Howeve r, eve n absent waiver , we conclude that appellant’ s sentenc e did not constitute crue l and unusual punishment.

The Eig hth Amendment to the United States Constit ution prohibits crue l and unusual punishm en t , i n cluding extreme sentenc es t hat are “gr ossly disproportionate” to the crime. Ewing v. California , 538 U.S. 11, 23 ( 2003). Courts have re peate dly held that punishment falling within the limi t s p re s cribed by a valid statute is not excessive, crue l, or unusual. See Harris v. State , 656 S.W .2d 481, 486 (Tex. C ri m . App. 1983); Jordan v. State , 495 S.W .2d 949, 952 (Tex. Crim.

3App. 1973). The trial court assessed punishment at 60 y ear s’ imprisonment for eac h of the offe nses

of ag g rava ted robber

y , with the sentenc es to r

un concur rently

. See Tex. Pena l Code Ann. § 29.03. The punishment ra

ng e for this first-deg ree felony

is five t o 99 y ear s or l ife and may include a f ine of up to $10,000. See id. § 12.32 (W es t 2 0 1 1 ). Ap p ell ant’s sentenc e is within the rang e of punishment for this offe nse. I t is well established that a sentenc e falling within the applicable rang e of punishment gen er al l y does not violate the Eig hth Amendment. See e.g. , Samuel v. State , 477 S.W .2 d 6 1 1 , 6 1 4 (Tex. Crim. App. 1972); W illiams v. State , 191 S.W .3d 242, 262 n.6 (Tex. App.—Austin 2006, no pet.).

A s e n te nce falling within the applicable rang e of punishment might s ti ll b e c o n s id e r e d

crue l and unusual in case s involving “extreme sentenc es” that are “g rossly disproportionate” to the offe nse. Ewing , 538 U. S

. at 23 (quoting Harmelin v. Michigan , 501 U.S. 957, 1001 (1991) (Ke nnedy , J ., concur

rin g )). Appellant first attempts to demonstrate that his sentenc e meets these descr iptors by citing case s involving sentences impos ed on juvenile offender s. See, e .g. , Graham

v. Florida , ___ U.S. ___, 130 S.Ct

. 2011, 2026 (2010) (bec ause juveniles have lessened culpability , t h ey ar e l ess deser

ving of sever est punishments). Appellant’s arg ument fails, howeve r, beca us e althoug h he wa s only

eig hteen y ear s old when he committed the agg rava ted robberies, he was not

a juvenile offe nder as was the six teen- y ear -old defe ndant in Graham

. Moreove r, Graham involved

a sentenc e of life without the possibili ty of parole , which the Court considere d extreme g iven the ag e of the juvenile offe nder. Id

. at 2033 (juvenile offe nder who did not commit homicide who rec eives life sentenc e entitled to rea listi c opportunity to obtain rele ase befor e end of term). I n the prese nt

case , appellant did n o t rec eive the maxi mum sentenc e and will be elig ible for parole once he has

4serve d half his sentenc e as require d by the deadly -w ea p o n fi nding. This Court has previously

conclude d that the fac t that a deadly -we apon finding require s the offe nder to serve half his sentenc e befor e parole elig ibilit y did not rende r a 40-y ear sent en ce gro ssly disproportionate. See Andrews

v. State , No. 03-98-00201- CR, 1999 WL 11190, at *1 (Tex. App.—Austin J an. 14, 1999, pet. ref ’d) (mem. op., not desig nated for publication). We rea ch the same conclusion in the prese nt case involving a 60-y ear sentenc e. See Harmelin v. Michigan , 501 U.S. 957 (1991) (Eig hth Amendment has proporti o n al ity component that require s threshhold compar ison of g ravity of offe nse ag ainst

sever ity of sentenc e). Appellant committed ag g rava ted robber y with a deadly wea

pon twice in a two-month time fra

me. This offe nse carrie s with it the i mplicit threa t and risk of de ath or ser ious bodily injury

. I n fac t, dur ing the first of the two ag g rava ted robber ies, during which appe llant and his co-de fenda

nts went to a party in Killeen and robbed the g uests at g unpoint, one of the g uests was wounded by g unshots fired by appellant’ s co-de fenda nt. I n the second ag g rava

ted robber y , appellant pulled a g un on a convenie nce store cler k. Whil e the 60-y ear sentenc e is substantial, it is well below the maxi mum presc ribed by the leg islature for first-deg ree felonies, even when committed by those without a previous criminal history

. See Tex. Penal Code Ann. § 12.32. And, though he must serve half the sentenc e, appellant does rema in elig ible for parole

. Under the circ umstances, we cannot say that appellant’ s sentence is disproportionate to the offe nses. We overrule appellant’ s first issue. 2

We note also that the rec ord befo re u s d o es not contain any information reg arding the 2 sentenc es assessed for similar c rimes i n this or ot her jurisdictions. See McGrude r v. Puckett , 954 F.2d 313, 316 (5th Cir. 1992) (if appellate court infers that sentenc e is disproportionate, it must then compar e challeng ed sentenc e to se ntence s for similar cr imes in same jurisdiction and to sentenc es for sa me cr ime in other jurisdictions). 5I n his second issue, appellant challeng es the const i t u t i o nality of g overnme nt code

section 508.145(d)( 1), which est ab l i s h es parole elig ibilit y for inmates serving a sentenc e for an offe nse descr ibed in article 42.12, § 3g (a) of the Code of Criminal Procedur e. See Tex. Gov’t Code
Ann. § 508.145(d)( 1) (West 2012). Appella n t has waived this arg ument by failing to prese rve it.
See Karene v v. State , 281 S.W .3d 428, 434 (Tex. Crim. App. 2009) (def endant may

not challeng e constitutionalit y of st atu t e fo r fi rst time on appea l). Even if prese rved, however , we would reje ct appellant’ s arg ument that this statute is unconstitutional as violating the s epar ation-of- power s provision of article I I , section one of the Texas Constit ution. See Tex. Cons t. art. I I , § 1. Article I I , section 1 divides the power s of state g overnme nt into “thre e distinct depar tmen t s ” an d co n fi nes eac h to “a separ ate body of mag istery , to wit: Those which are L eg islative to one , those which are Ex ecutive to a nother, and those which are J udicial to a nother.” Id. The section direc ts that “no person, or collection of persons, being of one of these depar tments shall exercise any power proper ly attache d to either of the oth er s , ex cept in the instances here in expressly permitted.” Id. Article I V, sec tion 11 of the Texas Consti tution expressly provides that “[t] he L eg islature shall have authority to enac t parole laws and laws that require or permit courts to inform juries about the eff ect of g o o d co n d u ct t i m e and elig ibilit y for parole

. . . .” Id. art. I V, § 11(a)

. Thus, this provision of the constitution expressly and specific ally authorizes the leg islature
to enac t parole laws; in doing so, there fore , the leg islature does not violate notions of separ ation of
power s. See Oakley v. State , 830 S.W .2d 107, 109-10 (Tex. Cr i m . Ap p . 1 992) (by amending constitution to add article I V, s ec t i o n 1 1 , people of State of Texas articula ted will or intent that leg islature be authorized to draf t laws permitting trial courts t o i n form juries about opera tion and

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ect of parole laws). Neve rtheless, appellant arg ues that g overnme nt code section 508.145(d)( 1) “pre cludes the [Board of Pardons and Paroles] from exercising its power s of executive clemenc y at

a time of its choosing .” Essentially , appellant arg ues that while the leg islature may have the power
to desig nate who is elig ible for parole , this statute g oes bey ond that and desig nates when that person might be elig ible. We disag ree . Section 508.145(d)( 1) does not opera te to usurp the Boa rd’s authority to de termine whether or not to g rant an inmate parole

. Rather, it simply define s when an inmate serving a sentenc e for an offe nse for which the judgme nt contains a deadly -we apon finding is elig ible to be considered for parole by the Boa rd. Thus , section 508.145(d)( 1) is a leg itimate exercise of the leg islature’s express authority to “ena ct parole laws” and does not impermissibly restric t the Boa

rd’s deter mination of whether to g rant parole once an inmate become s elig ible. We

overr ule appe llant’s second issue.

CONCLUSION Having overr

uled appellant’ s t wo appellate issues, we aff irm the judgme nts of convic tion.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Apr il 10, 2013 Do Not Publish

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