Simpson, Mark Twain , 488 S.W.3d 318 ( 2016 )


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  •          IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. PD-0599-15
    THE STATE OF TEXAS
    v.
    MARK TWAIN SIMPSON, Appellee
    ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
    FROM THE FIFTH COURT OF APPEALS
    DALLAS COUNTY
    N EWELL, J., delivered the opinion of the Court in which K ELLER, P.J.,
    J OHNSON, K EASLER, H ERVEY, A LCALA, R ICHARDSON, and Y EARY, JJ., joined.
    M EYERS, J., dissented.
    Mark Twain Simpson entered an open plea of guilty to second-degree felony
    robbery and true to an enhancement provision alleging one prior conviction for
    aggravated robbery. The trial court found Simpson guilty, and, after finding the
    allegations in the enhancement paragraph true, sentenced him to twenty-five years’
    confinement. Simpson filed a motion for new trial, alleging that his sentence
    constituted a grossly disproportionate punishment. The trial court granted a new
    Simpson–2
    punishment trial. On the State’s appeal, the court of appeals held that the record
    evidence did not substantiate Simpson’s claim and vacated the trial court’s order.
    State v. Simpson, No. 05-14-00618-CR, 
    2015 WL 1811862
    (Tex. App.—Dallas Apr. 20,
    2015) (not designated for publication).
    We granted review to decide whether the court of appeals applied the proper
    standard of review under State v. Thomas and State v. Herndon. Simpson argues that
    the court of appeals did not adequately defer to the trial court on the question of
    whether he presented evidence to substantiate his legal claim that his sentence was
    grossly disproportionate under the Eighth Amendment. However, even under an
    abuse-of-discretion standard, the trial court acted without reference to guiding rules
    and principles when it granted a new trial as to punishment on the basis that
    Simpson’s sentence was grossly disproportionate to the crime he committed.
    Consequently, we will affirm the judgment of the court of appeals.
    Background
    The State charged Simpson with robbery for stealing a PlayStation and
    causing bodily injury to its owner, Vidal Gilbert. The robbery was the work of three
    men: Simpson, “Zelaya,” who pleaded guilty and received probation, and Joseph
    Aguilar, who remained at large at the time of trial. Simpson pleaded guilty to the
    robbery, and true to an enhancement paragraph that alleged a 1984 conviction for
    Simpson–3
    aggravated robbery with a deadly weapon.
    According to the arrest affidavit, Gilbert Vidal walked out of the bathroom
    where he had just showered and saw Zelaya, his friend, and Aguilar, whom he did
    not know, stealing his PlayStation. The men ran out of the residence to a car in
    which Simpson was waiting. Vidal followed and reached into the car to retrieve his
    game console. Zelaya told Simpson to shoot Vidal, which Simpson threatened to do
    even though he did not have a gun. Meanwhile, Aguilar started punching Vidal and
    Vidal backed away allowing the three men to drive off. Simpson pawned the
    PlayStation within the hour for 80 dollars. Vidal identified Simpson as the driver
    who threatened to shoot him.
    At the punishment hearing, Simpson testified that he was merely the getaway
    driver and did not cause bodily injury to the victim. He admitted that he had
    sixteen prior convictions for aggravated robbery and one for burglary of a vehicle,
    but noted that they were 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 released on parole in 1999, but that parole was
    revoked and he was imprisoned again until 2005. In 2012, he was arrested for theft
    and forgery. He was convicted of, and served jail time for, the theft charge, and the
    forgery charge remained pending.         Simpson’s mother also testified at the
    Simpson–4
    punishment hearing that she and her husband were dependent upon Simpson due
    to their poor health.
    Simpson’s defense attorney sought deferred adjudication in light of Simpson’s
    minor role in the instant crime. The State agreed that Simpson’s role was small, but
    asked for a prison sentence in light of Simpson’s criminal history. Faced with a
    punishment range of five to ninety-nine years because of the enhancement
    paragraph, the trial court assessed a twenty-five-year sentence.
    Simpson filed a motion for new trial the next day, alleging that the sentence
    violated “the proportionality tenant of the Eighth Amendment” to the United States
    Constitution. Specifically, he noted that his participation in the offense was limited
    to driving the getaway car and “selling a stolen PlayStation,” which he characterized
    as “a snap misjudgment” that was far afield from “traditional notions” of
    aggravated crimes. He also argued that his sentence was disproportionate in light
    of his co-defendant’s probated sentence and the probated or deferred sentences
    imposed on “many defendants.”
    The trial court held a hearing on the motion for new trial.1 At the hearing, the
    trial court asked whether Zelaya, the co-defendant who received a probated
    1
    A defendant is not entitled to a hearing on a motion for new trial on matters raised in the motion
    that are determinable from the record. See Lucero v. State, 246 S.W .3d 86, 94 (Tex. Crim. App. 2008).
    However, the State acquiesced to the hearing by failing to object. See State v. Moore, 225 S.W .3d 556, 570
    (Tex. Crim. App. 2007) (noting that State’s failure to object to untimely amendment to motion for new trial
    merely prevented the State from raising that claim on appeal).
    Simpson–5
    sentence, had any prior convictions. Both parties informed the trial court that he did
    not have a prior criminal record, though he “was the one who actually went inside
    the property.” The State argued that the trial court could not grant a new trial solely
    because it believed the defendant had “received a raw deal.” Rather, the defendant
    was required to show that the “first proceeding was not in accordance with the
    law.” The State went on to argue that the first sentencing hearing was conducted
    in accordance with the law, and Simpson’s counsel agreed, with the caveat that the
    sentence itself was grossly disproportionate.
    The trial court also heard from Simpson’s sister, Alecia, who did not testify
    at the original punishment hearing even though she was present, and Simpson’s
    mother, who had testified at the original punishment hearing. These witnesses
    provided no testimony concerning Simpson’s gross-disproportionality claim.
    Instead, they were called because Simpson wanted to address an issue involving his
    drug usage.
    Alecia testified that her brother had an accomplice during the crime spree that
    he engaged in when he was seventeen. According to Alecia, that accomplice was
    twice Simpson's age and was “killed by bounty hunters” before he could be
    prosecuted. Turning to current circumstances, she said that her brother had last been
    working at Skinner Masonry and that, when she went to pick up his last check, the
    Simpson–6
    manager had made it clear he wanted Simpson back “because they had a big project
    out there and they liked his work.” She stated that he had been, and could remain,
    clean with the full-time Skinner Masonry job and that he would make better
    decisions if he got some drug treatment. She noted that her brother helped her raise
    her three kids.
    Simpson’s mother, Frankie, testified at greater length than she did at the
    original punishment hearing. She provided additional information about her own
    and her husband’s health problems. She said they both benefitted, emotionally and
    physically, from having Simpson around. She acknowledged that Simpson did need
    help making better decisions, but they and their church community and friends
    were all willing to help him and to find any outside help he needed.
    Simpson’s attorney argued that what his client needed most was drug
    treatment. He asked for a stair-step process–possible additional incarceration,
    SAFPP, then release under strict supervision with a curfew. Addressing Simpson’s
    criminal history, the attorney said, “Certainly, he’s run up a lot of cases in a short
    period of time, but he’s not the person that he was back then and I’m hopeful that
    the Court can see that based on the testimony of family.”
    The State argued that the motion-for-new-trial hearing was not a new
    punishment hearing. According to the State, the trial court was not authorized to
    Simpson–7
    hold a new punishment hearing unless there was some showing that the original
    punishment hearing was not authorized by law. The State asked the trial court to
    deny the motion for new trial because the sentence was not grossly disproportionate
    under the Eighth Amendment.
    The trial court granted the motion for a new trial as to punishment, and the
    State appealed. On the State’s appeal, the Dallas Court of Appeals vacated the trial
    court’s order and reinstated the original judgment. Citing the Herndon standard, the
    Dallas court held that Simpson articulated a valid legal claim, but did not
    substantiate it. Simpson, 
    2015 WL 1811862
    , at *3. We granted review to decide
    whether the court of appeals erred in finding Simpson’s disproportionate sentence
    claim unsubstantiated.
    Standard of Review
    The standard of review when a trial court grants a motion for a new trial is
    abuse of discretion. State v. Thomas, 
    428 S.W.3d 99
    , 103 (Tex. Crim. App. 2014). The
    test for abuse of discretion is not whether, in the opinion of the appellate court, the
    facts present a suitable case for the trial court’s action, but rather, whether the trial
    court acted without reference to any guiding rules or principles. 
    Id. The bare
    fact
    that a trial court may decide a matter differently from an appellate court does not
    demonstrate an abuse of discretion.        
    Id. at 103-04.
    Appellate courts view the
    Simpson–8
    evidence in the light most favorable to the trial court’s ruling, defer to the court’s
    credibility choices, and assume that all reasonable fact findings in support of the
    ruling have been made. 
    Id. at 104.
    The trial court cannot grant a new trial just because it personally believes that
    the defendant is innocent or received a raw deal. 
    Id. Nor may
    a trial court grant a
    new punishment trial based only on second thoughts about the sentence that it
    imposed upon a defendant. 
    Id. at 107.
    In the absence of a valid legal claim of any
    sort to base a new punishment trial on, a court of appeals properly reverses a trial
    court’s grant of a new trial. On the other hand, a trial court does not generally abuse
    its discretion in granting a motion for new trial if the defendant: (1) articulates a
    valid legal claim in his motion for new trial; (2) produces evidence or points to
    evidence in the trial record that substantiates his legal claim; and (3) shows prejudice
    to his substantial rights under the standards in Rule 44.2 of the Texas Rules of
    Appellate Procedure. State v. Herndon, 
    215 S.W.3d 901
    , 909 (Tex. Crim. App. 2007).
    An appellate court may reverse a trial court’s decision on a motion for new trial
    when the trial court’s decision is so clearly wrong as to lie outside that zone within
    which reasonable persons might disagree. Webb v. State, 
    232 S.W.3d 109
    , 112 (Tex.
    Crim. App. 2007).
    Simpson–9
    Analysis
    An allegation of disproportionate punishment is a valid legal claim. 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. U.S. C ONST. amend VIII. But, this is a narrow principle that does not
    require strict proportionality between the crime and the sentence. Harmelin v.
    Michigan, 
    501 U.S. 957
    , 1001 (1991) (Kennedy, J., concurring). Rather, it forbids only
    extreme sentences that are “grossly disproportionate” to the crime.         Ewing v.
    California, 
    538 U.S. 11
    , 23 (2003) (plurality opinion).    While the United States
    Supreme Court has acknowledged the lack of clarity in its precedent regarding what
    factors may indicate gross disproportionality, it has nevertheless emphasized that
    a sentence is grossly disproportionate to the crime only in the exceedingly rare or
    extreme case. Lockyer v. Andrade, 
    538 U.S. 63
    , 73 (2003). Moreover, this Court has
    traditionally held that 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).
    To determine whether a sentence for a term of years is grossly
    disproportionate for a particular defendant’s crime, a court must judge the severity
    of the sentence in light of the harm caused or threatened to the victim, the
    Simpson–10
    culpability of the offender, and the offender’s prior adjudicated and unadjudicated
    offenses. Graham v. Florida, 
    560 U.S. 48
    , 60 (2010); see also McGruder v. Puckett, 
    954 F.2d 313
    , 316 (5th Cir. 1992) (noting that the Supreme Court’s holding in Harmelin
    v. Michigan, 
    501 U.S. 957
    (1991) modified the gross-disproportionality test previously
    set out in Solem v. Helm, 
    463 U.S. 277
    (1983)). In the rare case in which this threshold
    comparison leads to an inference of gross disproportionality, the court should then
    compare the defendant’s sentence with the sentences received by other offenders in
    the same jurisdiction and with the sentences imposed for the same crime in other
    jurisdictions. 
    Graham, 560 U.S. at 60
    . If this comparative analysis validates an initial
    judgment that the sentence is grossly disproportionate, the sentence is cruel and
    unusual. 
    Id. Only twice
    has the Supreme Court held that a non-capital sentence imposed
    on an adult was constitutionally disproportionate. United States v. Farley, 
    607 F.3d 1294
    (11th Cir. 2010) (singling out Weems v. United States, 
    217 U.S. 349
    (1910) (fifteen
    years punishment in a prison camp grossly disproportionate to crime of falsifying
    a public record) and Solem v. Helm, 
    463 U.S. 277
    (1983) (life imprisonment without
    parole grossly disproportionate sentence for crime of uttering a no-account check
    for $100)). And it has rejected a disproportionality attack on a sentence of twenty-
    five years to life imposed under California’s “Three Strikes and You’re Out” law,
    Simpson–11
    brought by a defendant who merely stole three golf clubs. 
    Ewing, 538 U.S. at 29-30
    .
    The Supreme Court directly addressed felony recidivism in Ewing, holding that,
    “[i]n weighing the gravity of Ewing’s offense, we must place on the scales not only
    his current felony, but also his long history of felony recidivism.         Any other
    approach would fail to accord proper deference to the policy judgments that find
    expression in the legislature’s choice of sanctions.” 
    Id. at 29.
    The court of appeals
    correctly held that, in light of Simpson’s role in the robbery and his significant prior
    adjudicated and unadjudicated offenses, his twenty-five-year sentence is not one of
    those “rare” cases where gross disproportionality can be inferred even when
    viewing the evidence in the light most favorable to the trial court’s ruling. Simpson,
    
    2015 WL 1811862
    , at *3.
    Simpson’s sentence fell well within the statutory range of five to ninety-nine
    years or life. Accordingly, there is no reason to compare his sentence to sentences
    imposed on others–including the probated sentence of the main actor in this case.
    
    Graham, 560 U.S. at 60
    ; 
    McGruder, 954 F.2d at 316
    . Certainly, where there cannot be
    even an inference that the sentence was disproportionate to the crime, it cannot be
    said that the Eighth Amendment claim was “substantiated.” The trial court’s
    decision–to the degree that it found the constitutional claim substantiated–lies
    outside that zone within which reasonable persons might disagree. Appellee
    Simpson–12
    presented evidence that his sentence was too harsh, not that it was unconstitutional.
    See State v. Zalman, 
    400 S.W.3d 590
    (Tex. Crim. App. 2013) (trial court abused
    discretion by granting motion for new trial on evidentiary issues when the only
    ground pled within the thirty-day limit was that the verdict was against the law and
    evidence).
    Here, Simpson sought to use an Eighth Amendment claim to develop
    additional evidence relevant to sentencing that was not introduced at the trial
    court’s punishment hearing, even though it was available to him. As we made clear
    in State v. Thomas, even when the trial court assesses the sentence, it abuses its
    discretion by granting a motion for new trial without requiring a showing that the
    original punishment hearing was seriously 
    flawed. 428 S.W.3d at 107
    . In Thomas,
    the absence of a valid legal claim was fatal to the propriety of the trial court’s grant
    of a new trial on punishment; the record reflected that the trial court acted merely
    on second thoughts about the punishment that it had originally imposed. 
    Id. In this
    case, Simpson articulated a valid legal claim in his motion for new trial,
    but he did not produce evidence or point to evidence existing in the record that
    substantiated this legal claim. The evidence adduced at the hearing on the motion
    for new trial–evidence about Simpson’s minimal role in the offense, the age and
    circumstances of the prior offenses, his need for drug treatment, his
    Simpson–13
    employment–was undoubtedly relevant to the trial court’s normative punishment
    decision. It did not, however, substantiate Appellee’s legal claim that his sentence
    was unconstitutional. 
    Zalman, 400 S.W.3d at 594-95
    (“Although Herndon does not
    explicitly say that the evidence presented at the trial must support the same claim
    that was pled, to hold otherwise would defeat the notice requirements of the
    motion.”); see also State v. Stewart, 
    282 S.W.3d 729
    (Tex. App.—Austin 2009, no pet.)
    (noting that the defendant had not substantiated a claim that his sentence was
    grossly disproportionate under the Eighth Amendment). To the degree that there
    was additional evidence that could have persuaded the trial court to assess a lesser
    sentence, it was incumbent upon Simpson to present that evidence during the
    punishment hearing, not at a subsequent hearing on a motion for new trial.2 As the
    court of appeals correctly noted, Simpson was not required to establish reversible
    error as a matter of law. But, the evidence he presented at the hearing on the motion
    for new trial did not substantiate a claim that his first punishment hearing was
    “seriously flawed” under the legal claim he advanced. Herndon, 
    215 S.W.3d 909
    .
    We affirm the judgment of the court of appeals.
    Delivered: April 27, 2016
    Publish
    2
    As we noted in Thomas, the failure to call witnesses may provide a basis for an ineffective
    assistance claim. Thomas, 428 S.W .3d at 106. However, Simpson did not base his motion for new trial
    upon a legal claim of ineffective assistance of counsel.
    

Document Info

Docket Number: PD-0599-15

Citation Numbers: 488 S.W.3d 318

Filed Date: 4/27/2016

Precedential Status: Precedential

Modified Date: 1/12/2023

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