## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00500 - CR Dev in Ray Pollard

v.

The State of Texas § § § § § From t he 432nd District Court
o f Tarrant County ( 1204919D ) November 8, 2012 P er C uriam (nfp) 

### JUDGMENT This court has considered the record on appeal in this case and holds that there was no e rror in the trial court’s judgment. It is ordered that the judgment of the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS

PER CURIAM2 

## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00496 - CR NO. 02 - 11 - 00497 - CR NO. 02 - 11 - 00498 - CR NO. 02 - 11 - 00499 - CR NO. 02 - 11 - 00500 - CR
DEVIN RAY POLLARD APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- Introduction A ppellant Devin Ray Pollard pled guilty without a plea bargain to three counts of aggravated robbery with a deadly weapon and two counts of

1 See Tex. R. App. P. 47.4.3

aggravated sexual assault by threat , and he pled true to identical repeat
offender

- enhancement paragraphs contained in each charge. After reviewing a pre - sentence investigation, t he trial court sentenced Appellant to seventy
- five year s ’ confinement in each case to run con currently

. Appellant now c ontends that his punishment violates the Eighth Amendment because it is grossly disproportionate to the offenses for which he stands convicted . We affirm.

Background Facts and Procedural History Appellant pled guilty to the trial court and admitted that on a day in May 2010 he committ ed three aggravated robberies with a firearm and two aggravated sexual assaults by threat while exhibiting a firearm

. He admitted that he and a codefendant planned to rob two women at an apartment , went to the apartment, took from it a big
- screen television , a game device, and a cell phone ; that h e sexually assaulted each woma n by jamming a finger and the barrel of a handgun into their sexual organs ; and that he also threatened to kill one wom a n’s
seven - year old daughter if the child did not keep quiet

. Discussion A complaint that a sentence is unconstitutionally excessive must be preserved by objection or motion for new trial. See Curry v. State , 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (concluding that even constitutional rights may be forfeited, including the right to be free from cruel and unusual punishment). Our review of the record shows that Appellant did not take either of these measures to preserve his complaint. Therefore, he has failed to preserve his4

complaint for review. See Tex. R. App. P. 33.1(a); Russell v. State , 341 S.W.3d 526, 527

– 28 (Tex. App.

–– Fort Worth 2011, no pet.)

. But eve n if Appellant had preserve d his claim, we would hold that t h e s e sentence s are not disproportionate to the offense s h e admitted committing . To assess proportionality, we first make a threshold comparison of the offense against the severity of the sentence

. Moore v. State , 54 S.W.3d 529, 542 (Tex. App.

— Fort Worth 2001, pet. ref’ d) (citing Solem v. He lm , 463 U.S. 277, 291

– 92, 103 S. Ct. 3001, 3010 (1983) and McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir.), cert. denied , 506 U.S. 849 (1992) ). Only if we determine that the sentence is grossly disproportionate to the offense do we need to consider whether the sentence is comparable to sentences imposed upon other criminals in the same jurisdiction and sentences imposed for commission of the sam e crime in other jurisdictions. I d

. ; see McGruder , 954 F.2d at 316; Culton v. State , 95 S.W.3d 401, 403 (Tex. App.

— Ho u ston [1st Dist

. ] 2002, pet. ref’ d) ; see also Phillips v. State , No. 02

- 10

- 00171

- CR, 2011 WL 946976 , at * 1 (Tex. App.

— Fort Worth Mar. 17, 2011, no pet.) (mem. op., not designated for publication). In making our threshold inquiry, 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. Solem , 463 U.S. at 291

– 92, 103 S. Ct. at 3010; Moore , 54 S.W.3d at 542. Here, Appellant pled gui lty to multiple counts of aggravated felonies including aggravated sexual assault by exhibiting a weapon and aggravated robbery with a deadly weapon. Each of these is a first

- degree felon y
. See Tex.5

Penal Code Ann. §§ 22.021(e) , 29.03 ( West Supp. 2012 ). Thus, they are within the second most serious category of offenses in Texas, capital offenses being the most serious. The range for a first

- degree felony is five years to 99 years or life in prison with a $10,000 fine. Id. § 12.32 (West 2011 )

. The trial court sentenced Appellant to seventy
- five years in each case. In general, when the sentence imposed is within the proper range of punishment , the trial court has a great deal of discretion and the sentence will not be disturbed on appeal. See Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)

. The record shows that Appellant robbed and sexually assault ed two
women at gunpoint in one of the women’s home. He made the m strip off their clothes and perform oral sex, he hit one of them with a gun when she appeared not to sufficiently cooperate, he threatened to kill the child of one of them , and he penetrat ed their sexual organs with the barrel of a firearm while the child watch ed, huddled in a ball and shaking

. Based on the facts in the record in these
cases , we hold that the trial court did not abuse its discretion in sentencing Appellant to seventy
- five years’ confinement for each offense

. See Phillips , 2011 WL 946976, at *1 (affirming a thirty

- year prison sentence for one count of aggravated sexual assault of a child); Miles v. State , Nos. 02

- 09

- 00 251

- CR, 02

- 09

- 00 252

- CR, 02

- 09

- 00 253

- CR, 02

- 09

- 00 254

- CR, 02

- 09

- 00 255

- CR, 02

- 09

- 00 256

- CR, 2010 WL 1730862 , at *1 (Tex. App.

— Fort Worth Apr. 29, 2010 , pet. ref’d ) (mem. op., not designated for publication) ( affirming sixty
- five

- year
s entence for six counts of aggravated robbery ); Chappel v. State , No. 05

- 97

-6

00710

- CR, 1998 WL 832112, at *1 (Tex. App.

— Dallas Dec. 3, 19 98 , no pet.) (not designated for publication) (“Considering appellant’s criminal history and the serious nature of appellant’s current offense, we cannot conclude that the punishment was grossly disproportionate to the offense.”). Accordingly, we overrule Appellant’s sole point on appeal. Conclusion Having overruled Appellant’s sole point on appeal, we aff irm the trial court’s judgment.

P E R CU RI AM PANEL: GABRIEL, MCCOY and MEIER , JJ. DO NOT PUBLISH Tex. R. App

. P. 47.2(b) DELIVERED: November 8, 2012