Vacate and Reinstate and Opinion Filed April 20, 2015 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-00618-CR 

THE STATE OF TEXAS, Appellant 

V. 

MARK TWAIN SIMPSON, Appellee 

On Appeal from the Criminal District Court No. 4 

Dallas County, Texas 

Trial Court Cause No. F-1356596-K 

MEMORANDUM OPINION 

Before Justices Fillmore and Schenck1 and Chief Justice Thomas, Retired2 

Opinion by Chief Justice Thomas (Retired) 

 This State’s appeal challenges the trial court’s order granting Mark Twain Simpson a new 

trial on punishment. We conclude the trial court abused its discretion in granting the motion. 

Accordingly, we vacate the order and reinstate the trial court’s judgment. 

BACKGROUND 

 1

 Justice David Schenck succeeds Justice Michael O’Neill, a member of the original panel. Justice Schenck has reviewed the briefs and 

record in this case. See TEX. R. APP. P. 41.1(a). 

2

 The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by 

assignment. 
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 Simpson was charged with stealing a PlayStation and causing bodily injury to the owner, 

Vidal Gilbert. The robbery was committed with two others, “Zelaya,” who pleaded guilty and 

received a probated sentence, and Joseph Aguilar, who remained at large as of trial. 

Simpson waived a jury, pleaded guilty to the court, and also pleaded true to an 

enhancement paragraph that alleged a 1984 aggravated robbery with a deadly weapon 

conviction. He testified at the punishment hearing that, although he pleaded guilty, he did not 

cause bodily injury to Gilbert as alleged in the indictment. Rather, he was “a party to th[e] 

offense with [Zelaya and Aguilar].” According to Simpson, Zelaya and Aguilar went into 

Gilbert’s home, took the PlayStation, and assaulted Gilbert; he drove the getaway car and 

pawned the PlayStation. Asked about his criminal history, Simpson admitted he had sixteen prior 

convictions for aggravated robbery and one conviction for burglary of a vehicle, all committed 

in “a span of about a month” when he was a teenager. He received a twenty-five year sentence 

for the robberies and a ten-year sentence for the burglary. He was paroled in 1999, but his parole 

was revoked and he was imprisoned again until 2005. In 2012, he was arrested for theft of 

property valued at “like $20” and forgery. He was convicted of theft and served “some county 

jail time.” The forgery charge remained pending. 

 Simpson’s mother testified he lived with her and her husband. She further testified she 

and her husband are in poor health and dependent on Simpson for help. 

 Asserting “penitentiary time” was not “merited,” Simpson’s counsel asked in closing 

argument that the court “consider deferring probation.” The State responded that while this case 

was “not the most egregious,” Simpson’s criminal history “sp[oke] for itself,” and Simpson 

should be sentenced to prison. The trial judge, faced with a punishment range of five to ninetynine years or life because of the enhancement paragraph, assessed a twenty-five year sentence. 

See TEX. PENAL CODE ANN. §§ 12.42(b) (West Supp. 2014) (enhancing second degree felony 
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punishment to punishment for first degree felony upon showing of prior first, second, or third 

degree felony conviction); 29.02(b) (West 2011) (robbery is second degree felony). The next 

day, Simpson filed his motion for new trial, asserting the twenty-five year sentence violated “the 

proportionality tenant of the Eighth Amendment” to the United States Constitution. Specifically, 

he argued his participation in the offense was limited to driving the getaway car and “selling the 

stolen property,” acts “indicat[ing] a snap misjudgment or a reaction to a particular situation.” He 

further argued his sentence was disproportionate in light of his co-defendant’s probated sentence 

and the probated or deferred sentences imposed on “many defendants.” 

 At the hearing on Simpson’s motion, the trial judge asked whether Zelaya, the codefendant who received a probated sentence, had any prior convictions and what his role was in 

the commission of the offense. The parties informed the judge Zelaya did not have a prior 

criminal record and “was the one who actually went inside the property.” After hearing brief 

argument from the State, the judge heard testimony from Simpson’s sister, who was present at 

the punishment hearing but did not testify, and his mother. These witnesses provided no 

testimony concerning Simpson’s allegation of disproportionate punishment but, as explained by 

Simpson’s counsel, were called because Simpson “has an issue which needs to be addressed 

involving his drug usage.” Simpson’s counsel argued in closing that, in light of Simpson’s drug 

usage, the trial judge should consider “a stair step process” beginning with a drug treatment 

program and ending with “strict supervision” that would include a curfew. Counsel further 

stated that “we have no problem” with incarceration if deemed appropriate. The State responded 

that the sole issue before the court was whether the punishment hearing was “done according to 

the law.” The State maintained it was and argued the motion should be denied. Asked by the 

trial judge what would happen if she granted the motion, the State responded that it “would 

proceed with a slow plea with a jury.” Although believing a jury trial on punishment was 
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“risky,” the trial court granted Simpson’s motion, noting that “if punishment were up to [her, 

she] would be inclined to put him on a long probation and if he messed up . . . send him away for 

the rest of his life.” 

STANDARD OF REVIEW AND APPLICABLE LAW 

A trial court may grant a new trial on any of the grounds specified in Texas Rule of 

Appellate Procedure 21.3 or “in the interest of justice.” See TEX. R. APP. P. 21.3; State v. 

Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014). “Justice” means “in accordance with the 

law” and upon a showing that substantial rights were affected. See Thomas, 428 S.W.3d at 105. 

We review a trial court’s order granting a new trial for abuse of discretion. Id. at 103. In 

conducting our review, we view the evidence in the light most favorable to the trial court’s 

ruling, defer to the court’s credibility determinations, and presume all reasonable fact findings in 

support of the ruling have been made. Id. at 104. We will conclude the trial judge abused his 

discretion if he acted “without reference to any guiding rules or principles,” that is, if he granted 

the new trial for a non-legal or legally invalid reason or based on “mere sympathy, an inarticulate 

hunch, or simply because he believes that the defendant is innocent or ‘received a raw deal.’” Id. 

at 103-04 (quoting State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007)). 

Conversely, we will generally conclude the trial court did not abuse its discretion where the 

defendant (1) articulated a valid legal claim in his new trial motion; (2) produced evidence or 

pointed to evidence in the trial record substantiating his legal claim; and (3) showed prejudice to 

his substantial rights under the standards in Texas Rule of Appellate Procedure 44.2. Herndon, 

215 S.W.3d at 909. The trial court may exercise its discretion in granting a new trial without a 

showing of reversible error as a matter of law but only if the defendant has demonstrated his first 

trial was “seriously flawed and the flaw adversely affected his substantial right to a fair trial.” 

Id. 
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An allegation of disproportionate punishment is a valid legal claim. See State v. Stewart, 

282 S.W.3d 729, 738 (Tex. App.—Austin 2009, no pet.). The concept of proportionality is 

embodied in the Constitution’s ban on cruel and unusual punishment and requires that 

punishment be graduated and proportioned to the offense. See U.S. CONST. amend. VIII; 

Graham v. Florida, 560 U.S. 48, 59 (2010). It is a narrow principle that “‘does not require strict 

proportionality between crime and sentence’ but rather ‘forbids only extreme sentences that are 

grossly disproportionate to the crime.”” Graham, 560 U.S. at 59-60 (quoting Harmelin v. 

Michigan, 501 U.S. 957, 997, 1000-1001 (1991) (Kennedy, J., concurring in part and concurring 

in judgment)). In determining whether a sentence is grossly disproportionate to the crime 

committed, the court must judge the punishment in light of the harm caused or threatened to the 

victim, the culpability of the offender, and the offender’s prior adjudicated and unadjudicated 

offenses. See id. at 60; Culton v. State, 95 S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.] 

2002, pet. ref’d). In the “rare” case when this comparison leads to an inference of gross 

disproportionality, the sentence is then judged in light of sentences imposed upon other criminals 

in the same jurisdiction and sentences imposed for the commission of the same crime in other 

jurisdictions. Graham, 560 U.S. at 60. Generally, punishment assessed within the statutory 

limits, including punishment enhanced pursuant to a habitual offender statute, is not excessive, 

cruel, or unusual. See Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006). 

DISCUSSION 

 In two issues, the State asserts the court erred in granting Simpson’s motion because the 

sentence was not grossly disproportionate to the offense committed and the punishment trial was 

conducted in accordance with the law.3

 We agree. 

 3

 In his response brief, Simpson “agrees that aside from his disproportionate sentence, the brief proceedings (the hearings on his guilty plea 

and sentencing) were otherwise conducted in accordance with the law.” 
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 Because Simpson’s claim of disproportionate punishment is a valid legal claim, we turn 

to whether the evidence substantiated his claim. See Herndon, 215 S.W.3d at 909; Stewart, 282 

S.W.3d at 738. Viewed in the light most favorable to the trial court’s ruling, the record reflects 

Simpson was one of three individuals who participated in a robbery. Although the victim was 

injured, he was injured by one of Simpson’s co-defendants, not Simpson. The record further 

reflects Simpson had seventeen prior felony convictions for offenses committed thirty years 

earlier, a conviction for theft of property valued at “like $20,” and a pending forgery charge. 

Measuring this evidence against Simpson’s twenty-five year sentence, we cannot conclude this is 

one of the “rare” cases where gross disproportionality is inferred. See Graham, 560 U.S. at 60. 

While Simpson might not have injured the victim, he pawned the PlayStation knowing it was 

stolen and drove the getaway car. Additionally, while the seventeen prior felony convictions are 

“dated,” sixteen of those convictions are for aggravated robbery—a crime of violence as a matter 

of law—and all were committed within a span “of about a month.” See Jernigan v. State, 672 

S.W.2d 280, 281 (Tex. App.-–Dallas 1984, no pet.) (“Violence is an inherent element of 

aggravated robbery.”); see also TEX. PENAL CODE ANN. § 29.03 (West 2011). The theft and 

forgery offenses, though non-violent crimes, were committed within the same year and shortly 

before Simpson was arrested in this case. In light of Simpson’s role in the robbery and his 

significant prior adjudicated and unadjudicated offenses, his twenty-five year sentence is not 

grossly disproportionate to the crime. See Ewing v. California, 538 U.S. 11, 30 (2003) 

(concluding twenty-five years to life sentence for felony grand theft under California’s three 

strikes law not grossly disproportionate). Although Simpson did not need to show reversible 

error as a matter of law, nothing reflects the first punishment trial was “seriously flawed.” In 

fact, under the habitual offender punishment statute, Simpson’s sentence fell well within the 

statutory range of five to ninety-nine years or life. See TEX. PENAL CODE ANN. §§ 12.32(a) 
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(West 2011), 12.42(b). On the record before us, we conclude the evidence from the new trial 

hearing does not substantiate Simpson’s claim. Accordingly, we need not judge his sentence in 

light of sentences imposed on others. See Graham, 560 U.S. at 60. 

Because the evidence does not substantiate Simpson’s claim, the trial court abused its 

discretion in granting Simpson’s motion. We sustain the State’s issues, vacate the trial court’s 

order granting a new trial, and reinstate the judgment. 

 

Do Not Publish 

TEX. R. APP. P. 47 

140618F.U05 

 

/Linda Thomas/ 

LINDA THOMAS 

CHIEF JUSTICE, RETIRED, ASSIGNED 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

THE STATE OF TEXAS, Appellant 

No. 05-14-00618-CR V. 

MARK TWAIN SIMPSON, Appellee 

 On Appeal from the Criminal District Court 

No. 4, Dallas County, Texas 

Trial Court Cause No. F-1356596-K. 

Opinion delivered by Chief Justice Thomas, 

Ret.; Justices Fillmore and Schenck 

participating. 

 Based on the Court’s opinion of this date, we VACATE the trial court’s order granting a 

new trial and REINSTATE the judgment. 

Judgment entered April 20, 2015.