Opinion filed May 12 , 20 2 2



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 20

- 00 17 4

- C R

__________ ELI ANTON ROBLES , Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court Taylor County , Texas Trial Court Cause No. 283 12A

M E M O R A N D U M O P I N I O N Appellant , Eli Anton Robles , was indicted for the first

- degree felony offense of aggravated assault with a deadly weapon. T EX

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. § 22.02 (a), (b)(3) (West Supp. 2021 ) . H e enter ed an open plea of guilty , waived his right to a jury trial, and requested that the trial court assess his punishment. After a punishment hea ring, the trial court assessed Appellant’s punishment at twenty years’2 imprisonment in the Texas Department of Criminal Justice, Institutional Division, and sentenced him accordingly. Appellant presents a single issue on appeal : that the imposed sentence violates his constitutional right against cruel and unusual punishment. We affirm. I. Factual Background Appellant was charged with , and later indicted for, aggravated assault with a deadly weapon when, while in a motor vehicle, he (1) knowingly discharg ed a firearm at or in the direction of an o ther motor vehicle , (2) acted reckless ly in determining whether the vehicle fired upon was occupied , and (3) caus ed serious bodily injury by his actions; the indicted offense is a first

- degree felony. Id

. § 22.02(b)(3). After Appellant enter ed his guilty plea, the trial court ordered that a presentence investigation report be prepared before the punishment hearing. At the punishment hearing , the State called four witnesses: Thomas Joel Peavy III, John Graham, Jack Needham, and Andrew Kestler. Appellant testified as di d his mother, Vanessa Cardona. A. Officer T homas Joel Peavy , III Thomas Peavy is an officer with the Abilene Police Department. On the day of the offense, while off

- duty, Officer Peavy w as leaving his residence at around 8:30 p
. m . when he heard the discharge of five or six gunshots. He stated that this was not unusual because he lived in a rural area outside of Abilene

— the Callahan Divide residential area

. He proceed ed to drive away from his residence until he reached the turnoff to the highway. There, he saw a red pickup in the grass beside the road way . He also saw a Taylor County deputy sheriff on the scene walking toward the pickup. Officer Peavy then noticed that the passenger - side door of the pickup was open , and an individual

— Andrew Kestler

— was l ying in the grass.3 Officer Peavy and the deputy sheriff approached Kestler , and Officer Peavy immediately observed that Kestler had sustained multiple gunshot wounds , incl uding an entry wound to the bottom of his chin ; blood was also secreting from Kestler’s chest. Officer Peavy heard the deputy sheriff ask Kestler what had h appen ed. Kestler responded that a dark vehicle had pulled up beside him and shot at him. After Officer Peavy and other law enforcement officers secured the scene and provided medical assistance to Kestler (he was eventually transported to a hospital by ambulance), Officer Peavy noticed that the driver

- side door of the pickup was riddled with s ix bullet holes

— three in the door and three in the window. B. Detective John Graham At the time of the sentencing hearing, Detective Graham ha d been a deputy sheriff with the Taylor County S heriff’s O ffice for twenty

- four years. When he arrived at the scene, Detective Graham observed a pickup parked in the grass next to the roadway. He observed six bullet holes in the driver

- side door of the pickup

— three in the door and three through the glass. He testified that he had investi gated “countless” shootings in his career and that, in his experience, the se bullet holes were

“ very well placed” to target the driver of the pickup

. He looked inside the pickup and saw a “considerable amount” of blood smeared throughout its interior. Det ective Graham further testified that the follow

- up investigation revealed that the victim, Kestler, had agreed to meet four young individuals

— one of whom was Appellant

— in the HEB parking lot to sell them marihuana and that they intended to give Kestler a counterfeit one - hundred

- dollar bill in exchange for the drugs. The drug deal fell through and Kestler drove away from the parking lot. The four young individuals got in their vehicle and followed Kestler for approximately4 fift een miles along the highway. As they followed, one member of the group texted Kestler several times. The day after the shooting , and after he had been identified as a suspect, Appellant voluntarily went to the Taylor County S heriff’s O ffice for an intervi ew with Detective Graham. Detective Graham testified that, during the interview, Appellant , who was seventeen at the time, appeared ill; he was also sweating profusely. According to Detective Graham, Appellant was polite and never hostile, but he was not very forthcoming. Eventually, Appellant admitted that he had a pistol and fired sho ts into Kestler’s vehi cle. Appellant claimed that he had found the pistol in an alley. Appellant was seated in the back passenger

- side seat of the vehicle when the shots were fired

. He told Detective Graham that he may have been fear ful of the circumstances and that Kestler swerved his pickup at their vehicl e

— a su burban

- type SUV

— while the y pursued him. Detective Graham testified that the bullet holes in the driver

- side door of Kestler’s vehicle indicated that the two vehicles would have had to be driving side by side when the shots were fired by Appellant

. He further testified that Appe llant did not claim that Kestler had a weapon. Appellant told Detective Graham that he was trying to scare Kestler by shooting into his vehicle. Detective Graham stated that, based on his observation of the “well placed” bullet holes in Kestler’s vehicle , he did not interpret Appellant’s intent to be to only scare the driver. Appellant threw the pistol out the vehicle’s window after shooting into Kestler’s vehicle. Despite their best efforts , law enforcement was unable to recover the weapon. At the end of the interview, after Appellant admitted to his part icipation in the shooting, Detective Graham observed that Appellant no longer appeared ill , although he was teary

- eyed

.5 On cross

- examination, Detective Graham agreed that Appellant appeared to be so ft spoken and did not appear to be a “stone

- cold killer.” Detective Graham also agreed that his investigation did not reveal that Appellant had any criminal history. He agreed it was possible that Appellant was intoxicated from marihuana use at the time of the incident , although at no time during the interview did Appellant appear impaired

. However, when asked if Appellant’s actions could be considered to be , in part, due to stupidity because of his young age, Detective Graham disagreed; he stated that “ pulling out a gun and shooting it six times into a vehicle that you’ve chased [fifteen] miles is beyond stupid.” In addition to Appellant, Detective Graham interview ed two of the other individuals who were involved in the shooting of Kestler. Each of them confessed to some level of involvement in the incident. C. Doctor Jack Need h am Dr. Needham is a general surgeon at Hendrick Medical Center in Abilene . H e has been licensed to practice medicine in Texas since 2011 , is board certified by the A merican Board of Surgery , and has special ized training in minimally invasive
surgery. Dr. Needham testified that because Hendrick Medical Center is the referral center for the surrounding twelve counties, he frequently sees gunshot and stabbing wounds

. Dr. Needham examined and treated Kestler after he was shot

. Dr. Needham noted that Kestler had four gunshot wounds : (1) one bullet entered and exited through his left hand; (2) one bullet lodged in hi s left elbow and caused a bone fractur e ; (3) one bullet entered through his chin , exit ed through his lip inside of his mouth , and lodg ed into the back of his left eye; and (4) one bullet entered his chest, just above the left nipple, and lod g ed in his right lung.6 Dr. Needham explained that the gunshot wound to Kestler’s chest was life

threatening because it traveled across his chest, past major vessels . According to Dr. Needham, a fatality can rapidly result from that type of circumstance

. He recounted that he performed two bedside procedures

— insertin g a chest tube on both sides of Kestler’s chest to drain blood that had accumulated and re

- expand his lungs. O ther doctors performed surgeries to remove the bullet from Kestler’s elbow and to remove a bullet fragment from behind his left eye, as well as t o repair a puncture in Kestler’s left eye that was caused by the bullet fragment. Dr. Needham stated that he was familiar with the legal definition of “serious bodily injury.” I n his medical opinion, the injuries that Kestler sustained constituted serious bodily injury. D. Andrew Kestler Kestler was seventeen at the time he was shot

. He now attends Texas Tech University. On the day of the shooting, Kestler agreed to sell marihuana to an acquaintance

. He testified that he had slightly over twenty

- eight grams of marihuana in his possession that day. The y a greed to me e t at around 8:00 p
. m
. in the HEB parking lot

. The buyers, including Appellant, were in a gr ay SUV

. Kestler only knew one of the four people in the SUV ; he did not know Appellant. Kestler asked one of the b uyers to get into his pickup to consummate the transaction. However,
t hey insisted on making the drug purchase through the windows of the vehicles. One of the buyers showed Kestler a folded

- up one - hundred

- dollar bill. When he instructed them to unfold it, he saw that it appeared to be ripped and cut. At this, Kestler terminated the deal and drove away from the HEB parking lot. After Kestler got on the highway , he and one of the buyers began exchang ing
t ext messages and “things got heated.” Kestler testified that , as he was driving near7 the Callahan Divide residential area, he had the music playing loudly in his pickup and he suddenly realized that he was bleeding from his chin. He looked over and
saw t hat the glass of his vehicle’s left window had been shattered. Kestler then saw another vehicle driving next to him on his left. Kestler realized that someone in the vehicle was shooting at him. Upon realizing he had been shot, Kestler braked and pulled to the side of the highway. He opened the passenger - side door to his pickup , threw out the marihuana, and called 9

- 1

- 1. He could not tell how many times he had been shot, but he knew his chest wound was serious. Kestler noticed that t he vehicle that had been driving alongside him crossed over to the opposite side of the highway and headed back toward Abilene. Kestler testified that the injuries he sustained have resulted in several permanent impairments. His left pupil is deformed and he suffers from long

- term vis ual impairment s , including the development of a cat aract and hazy vision in his left eye. The bullet that lodged in his right lung was never removed and may remain there permanently

. His left elbow is also permanently impair ed. Kestler was hospitalized for four days and underwent seven surg ical procedures as a result of the damage caused by the bullets. Kestler also testified that he suffers from symptoms of posttraumatic stress disorder and depression, for which he attended some counseling. E. Vanessa Cordona Cordona is Appellant’s mother . She testified that, in addition to his lack of a criminal history, Appellant also was never in trouble at school ; nor was he a bully , except for on one occasion when he was suspended for fight ing

. Appellant has three brothers, and Cordona testified tha t they all got along. She stated that Appellant is dyslexic and attended special education classes. But she agreed that Appellant was8 aware of his actions and knew what he had done. According to Cordona, Appellant has been withdrawn and has “ stayed to h imself ” since the shooting. He “doesn’t do much” and “stays at home.” She testified that Appellant was the type of person that would help you if you needed it . She also stated that Appellant’s two younger brothers had learned from this experience to thi nk before they act. Cordona agreed that Appellant should be punished for his conduct . She stated that she did not know why Appellant had shot Kestler and that it was out of character for him to have done such a thing. She ask ed the trial court to g rant Appellant probation because what he did was a mistake, and she would like for his nieces and nephews to be able to grow up with him. F. Appellant , Eli Robles When asked if he thought shooting Kestler was an evil act, Appellant

re sponded : “I guess, but I see it as a mistake

. . . . I’m sorry. I really am.” He apologized to Kestler and his family. Appellant testified that he did not know what he hop ed to accomplish when he and the others followed Kestler on the highway that day. He stated that he did not intend to shoot Kestler until “everything led up.” According to Appellant , he was not involved in any discussions that resulted in the
text ing with Kestler . He stated that he thought the proper punishment for his conduct sh ould be five to ten years in prison. He also understood that being seventeen did

no t excuse his actions. Appellant admitted that he had smoked two blunts on the day of the shooting. As for the pistol, he claimed to have found it in an all ey two or three weeks beforehand. He stated that the others asked him to bring the pistol to the drug deal and that he had placed it on the floorboard when they pulled into the HEB parking lot to meet with Kestler. Appellant stated that when, as they cha s ed Kestler, the9 vehicle he was in pulled up next to Kestler’s pickup , he pointed the pistol a t Kestler’s vehicle and fired it six times. Appellant said he did not know why he did it and that it was a “moment of weakness.” He admitted that he was aiming at Kestler when he fired the pistol , but he claimed he was not trying to kill Kestler. II. Analysis As a threshold matter, the State contends that Appellant has waived his objection to the alleged un constitutional disproportionality of his sentence bec ause he failed to object or complain about this issue in the trial court. We agree. To preserve error for appellate review, a party must make a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. T EX

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. P. 33.1(a). Therefore, to preserve a complaint that an imposed sentence constitutes cruel and unusual punishment, as Appellant asserts, a defendant must first raise the issue in the trial court. See Burt v. State , 396 S.W.3d 574, 577 (Tex. Crim. A pp. 2013). Here, Appellant did not assert an y objection in the trial court , either at the time his sentence was imposed or in any posttrial motion

. Further, Appellant did not object on constitutional or other grounds, including the grounds that he now asserts on appeal, that the sentence imposed by the trial court was cruel, unusual, excessive , or disproportionate to sentences that other individuals had received for the same offense . Therefore, he failed to preserve er ror for our review and has waived his complaint on appeal. See Vidaurri v. State , 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Rhoades v. State , 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (the failure to raise Eight h Amendment issues in the trial court or i n a motion for new trial will not preserve error for appeal); Curry v. State , 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding that Eight h Amendment issues are subject to the10 error preservation rule and are forfeited if not raised in the trial court ); A lvarez v. State , 525 S.W.3d 890, 892 (Tex. App.

— Eastland 2017, pet. ref’d). N otwithstanding Appellant’ s waiver of his complaint , we conclude that the sentence imposed upon him by the trial court does not constitute cruel or unusual punishment. When we review a trial court’s sentencing determination, we note that
t rial courts are afforded “a great deal of discretion” in sentencing decisions

. Renfroe v. State , 529 S.W.3d 229, 233 (Tex. App.

— Eastland 2017, pet. ref’d) (quoting Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)). Therefore,

w e will not disturb a trial court’s decision as to punishment absent a showing of an abuse of discretion and harm. Id. (citing Jackson , 680 S.W.2d at 814). Although Appellant specifically challenges the se ntence imposed by the trial
court under the Eight Amendment to the United States Constitution, both the United States Constitution and the Texas Constitution include protections against cruel and unusual punishment. See U.S. C ONST

. amend. VIII; T EX

. C ONST

. a rt. 1, § 13 . The Texas Court of Criminal Appeals has held that there is no significant difference between these constitutional protections. See Cantu v. State , 939 S.W.2d 627, 645 (Tex. Crim. App. 1997). P unishment is generally not considered t o be cruel and unusual if the imposed
sentence falls within the charged offense’s statutory range of punishment. State v. Simpson , 488 S.W.3d 318, 323 (Tex. Crim. App. 2016); Sneed v. State , 406 S.W.3d 638, 643 (Tex. App.

— Eastland 2013, no pet.). However , a narrow exception to this rule exists : when the imposed sentence is grossly disproportionate to the charged offense, it may constitute cruel and unusual punishment, even if it is within the offense’s statutory range of punishment. Renfroe , 529 S.W.3d at 233 (citing Solem v. Helm , 463 U.S. 277, 290

– 92 (1983)); Sneed , 406 S.W.3d at 643

. Nevertheless ,11 “[o] utside the context of capital punishment, successful challenges to the proportionality of particular sentences [ will be ] exceedingly rare.” Solem , 463 U.S. at 289

– 90 (al terations in original) (quoting Rummel v. Estelle , 445 U.S. 263, 272 (1980)). T o evaluat e the proportionality of a sentence , the first step is to make a thresh old comparison between the gravity of the charged offense and the severity of the sentence imposed

. Simpson , 488 S.W.3d at 322; Renfroe , 529 S.W.3d at 234;

see Harmelin v. Michg an , 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring)

. When we analyze the gravity of the charged offense, we review the harm caused or threatened to the victim and the culpability of the offender. Renfroe , 529 S.W.3d at 234. However, i f we do not fin d a gross disproportionality, our analysis ends there. See H armelin , 501 U.S. at 1005 ; Renfroe , 529 S.W.3d at 234 (citing Bradfiel d v. State , 42 S.W.3d 350, 353

– 54 (Tex. App.

— Eastland 2001, pet. ref’d) )

. The punishment range for a first

- degree felony offense , such as the offense committed by Appellant, is either imprisonment for life or for a term of not less than five years but no more than ninety

- nine years. P ENAL § 12. 32(a) (West 2019)

. In this case, t he trial court assessed Appellant’s punishment at twenty years’ imprisonment. After a “blown up” drug deal, Appellant and others pursu ed Kestler for fifteen miles until Appellant fired six bullets at Kestler , which has caus ed him to suffer multiple debilitating injuries, includi ng a life

- threatenin g chest wound

. Although Appellant was a young man at the time of this offense , even he testified that a prison sentence was the appropriate punishment for his attack on Kestler. By all accounts, Appellant committed a serious offense

— t he gravity of his conduct was significant and its effect on Kestler is irreparable.12 We have thorough ly reviewed the record before us. Considering the gravity of the offense committed by Appellant and the sentence that the trial court imposed in this instance, which is clearly on the lower end of the applicable punishment range for such an offense, we cannot say that Appellant’s sentence was grossly disproportionate to the offense for which he was charged

. Therefore, w e hold that the t rial court did not abuse its discretion , nor did it violate Appellant’s Eight Amendment rights, when it assessed Appellant’s punishment for this offense at twenty years’ imprisonment. See Young v. State , No. 11

- 16

- 00325

- CR, 2018 WL 5290020, at *3 (Tex. Ap p.

— Eastland Oct. 25, 2018, no pet.) (the defendant’s sentence of twenty years’ imprisonment for the offense of aggravated assault was not violative of the Eight h Amendment even though the defendant entered an open plea of guilty and had no prior criminal h istory ). Accordingly, we overrule Appellant’s sole issue. III. This Court’s Ruling We affirm the judgment of the trial court

.

W. STACY TROTTER JUSTICE

May 12 , 20 2 2 Do not publish. See T EX

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. P. 47.2(b). Panel consists of: Bailey , C. J., Trotter, J., and Williams, J.