Nicholas Sharp v. State ( 2017 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00128-CR
NICHOLAS SHARP, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2015-406,506, Honorable John J. “Trey” McClendon III, Presiding
December 5, 2017
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Nicholas Sharp, appeals the trial court’s judgment by which he was
convicted of aggravated robbery and sentenced to ninety-nine years’ imprisonment. On
appeal, he contends that the imposition of said punishment amounts to cruel and unusual
punishment under the United States and Texas Constitutions. We affirm.
Background and Discussion
A Lubbock County jury found appellant guilty of the first-degree felony of
aggravated robbery and, after hearing punishment evidence, recommended a sentence
of ninety-nine years’ imprisonment. Without objection, the trial court imposed punishment
consistent with the jury’s recommendation. Appellant filed a motion for new trial which
urged only the general contention that the “verdict in this cause is contrary to the law and
the evidence.” On appeal, appellant maintains the sentence was disproportionate to the
offense, especially in light of evidence that he has struggled with mental health issues for
most of his life. The disproportionate sentence purportedly ran afoul of constitutional
protections against cruel and unusual punishment.
Appellant did not raise his current complaint before the trial court when sentence
was pronounced or through a motion for new trial. Thus, it was not preserved.1 See
Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (en banc) (concluding that
appellant failed to preserve argument that sentence was cruel and unusual by failing to
object at trial); Jones v. State, No. 07-17-00055-CR, 2017 Tex. App. LEXIS 8438, at *1–
2 (Tex. App.—Amarillo Sept. 5, 2017, no pet.) (per curiam) (mem. op., not designated for
publication) (holding that appellant forfeited her complaint about her sentence being
excessive when she did not raise it with the trial court). Because appellant has forfeited
his complaint, we overrule his sole issue.
Accordingly, we affirm the trial court’s judgment.
Per Curiam
Do not publish.
1 To be clear, appellant does not contend that the sentence imposed was illegal, an error which we
may notice without objection. See Mizell v. State, 119 S.W.3d 804, 806 n.6 (Tex. Crim. App. 2003). Indeed,
he acknowledges that the sentence imposed was within the statutory range of punishment for a first-degree
felony. See TEX. PENAL CODE ANN. § 12.32(a) (West 2011). As a general rule, “the sentencer’s discretion
to impose any punishment within the prescribed range [is] essentially ‘unfettered.’” Ex parte Chavez, 213
S.W.3d 320, 323 (Tex. Crim. App. 2006). “Subject only to a very limited, ‘exceedingly rare,’ and somewhat
amorphous Eighth Amendment gross-disproportionality review, a punishment that falls within the
legislatively prescribed range, and that is based upon the sentencer’s informed normative judgment, is
unassailable on appeal.” Id. at 323–24.
2