John Elwin Hanson v. State ( 2004 )

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00196-CR

______________________________

JOHN ELWIN HANSON, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30353-B



Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            John Elwin Hanson entered a plea of guilty to the offense of robbery and true to an enhancement paragraph. With the enhancement allegation, the range of punishment was imprisonment for life or for any term of not more than ninety-nine years or less than five years and a fine not to exceed $10,000.00. Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2004). Hanson elected to have the jury assess his punishment. A jury trial was conducted on the punishment issue, and the jury assessed punishment at forty years' confinement. Hanson appeals on the sole issue that the sentence is disproportionate to the offense. We affirm the judgment of the trial court.

            On February 3, 2003, Hanson entered a Texaco service station in Liberty City and approached the clerk. With his hand wrapped in a towel, he demanded that the clerk give him the money from the cash register. The clerk testified, "I did not know what he had in that towel, and I wasn't going to take any chances." After the clerk gave him approximately $150.00 from the register, he left, went to a nearby Dairy Queen, ordered tacos, and stayed there for more than an hour. He was found, arrested, identified, and taken into custody that same night.

Disproportionate Sentence Allegation

            We have previously held that the failure to present the issue of disproportionate sentencing to the trial court waives error on appeal. Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.—Texarkana 2002, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.—Texarkana 1999, no pet.). No such objection was made here, and the error was waived.

            Even if error were preserved, we find the sentence is not disproportionate. The United States Supreme Court in Solem v. Helm, 463 U.S. 277, 284 (1983), held the Eighth Amendment (U.S. Const. amend. VIII) prohibits sentences that are disproportionate to the crime. The Solem test requires a three-part analysis: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See id. at 292. As we noted in Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref'd), the United States Supreme Court modified the Solem test in Harmelin v. Michigan, 501 U.S. 957 (1991). It is now recognized that, under the United States and Texas Constitutions, 1) a prohibition against "grossly disproportionate" sentences survives independently of legislative punishment ranges, and 2) a modified Solem analysis applies. Under the Solem proportionality analysis as modified by Harmelin, we initially make a threshold comparison of the gravity of the offense against the severity of the sentence and then consider whether the sentence is grossly disproportionate to the offense. Only if we find that the sentence received is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Davis v. State, No. 06-03-00201-CR, 2003 Tex. App. LEXIS 10562, at *4 (Tex. App.—Texarkana 2003, no pet.); Jackson, 989 S.W.2d at 846.

            Here, the gravity of the offense is not disproportionate to the severity of the sentence. At trial, Hanson pled guilty to robbery, a second-degree felony which was enhanced by a prior felony, making his sentence a first-degree felony with a maximum punishment of life imprisonment. This offense alleged Hanson placed the victim "in fear of imminent bodily injury or death." The evidence shows he had been previously convicted of at least five felonies, including burglary and robbery, and of numerous misdemeanor theft charges. In 1993, he was sentenced to fifteen years' confinement for burglary. In 2003, he was sentenced to twenty years' confinement for robbery.

            In explaining his background, Hanson states that he is thirty-eight years of age; his parents are deceased; he has a "real bad" drug problem; when he went to prison previously, he had no drug treatment; he has worked in the oil field; he lost his job because he failed a drug test; at the time of this robbery, he was homeless, had no job, no transportation, and was hungry; he never threatened the victim of this robbery; and he did not have a weapon at the time of the robbery; and was sorry for what he had done.

            Considering the gravity of this offense and Hanson's criminal history, we do not find the severity of the sentence to be grossly disproportionate to the gravity of the crime. We overrule the point of error and affirm the judgment of the trial court.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          February 27, 2004

Date Decided:             March 9, 2004

Do Not Publish

e insurance provisions in question is properly within the prerogative of the State Board of Insurance or the Legislature." Id. The State Board of Insurance partially responded to this observation by making something of an edict⁽⁴⁾ which applied to bodily injury liability and property damage liability policies only; this order restricted the ability of insurers under that kind of insurance policy to raise the defense of failure of proper notice only when such failure to notify prejudiced the insurer. It did not choose to address this same issue with regard to casualty insurance policies. Therefore, this order does not apply to casualty claims such as the one before us. As a result, due to inaction on the part of those who are able to change it, the apparent injustice recognized by the Texas Supreme Court in 1972 in the Cutaia case remains the law as to this kind of insurance policy.

The position of Travelers is that set out in Broussard v. Lumbermens Mut. Cas. Co., 582 S.W.2d 261 (Tex. Civ. App.--Beaumont 1979, no writ), which states:

Compliance with the provision that notice be given "as soon as practicable" is a condition precedent, the breach of which voids policy coverage. Dairyland Mutual Ins. Co. of Texas v. Roman, 498 S.W.2d 154 (Tex. 1973); Members Mutual Insurance Co. v. Cutaia, 476 S.W.2d 278 (Tex. 1972); New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945); Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955); Latham v. Mountain States Mutual Casualty Co., 482 S.W.2d 655 (Tex. Civ. App.--Houston [1st Dist.] 1972, writ ref'd n.r.e.); Carroll v. Employers Casualty Co., 475 S.W.2d 390 (Tex. Civ. App.--Beaumont 1971, writ ref'd n.r.e.).

The facts not being in dispute as to whether notice was given "as soon as practicable," the question becomes one of law for the determination by the court. Commercial Standard Ins. Co. v. Harper, 129 Tex. 249, 103 S.W.2d 143, 146, 110 A.L.R. 529 (1937); Klein v. Century Lloyds, supra; Carroll v. Employers Casualty Company, supra; Norman v. St. Paul Fire & Marine Insurance Co., 431 S.W.2d 391 (Tex. Civ. App.--Beaumont 1968, no writ).

Id. at 262.

Conditions precedent are stipulations that call for the performance of some act or the occurrence of some event before an agreement is enforceable. Examples of conditions precedent in insurance contracts are the giving of notice of claim or loss, the timely filing of proof of loss, reporting the loss to proper authorities, filing suit within a specified time, timely forwarding suit papers to a liability insurer, and the like.

Love of God Holiness Temple Church v. Union Standard Ins. Co., 860 S.W.2d 179, 180 (Tex. App.--Texarkana 1993, writ denied). Whether the outcome is harsh or not, "Compliance with the provision that prompt written notice be given by the insured is a condition precedent, the breach of which voids policy coverage." Stonewall Ins. Co. v. Modern Exploration, Inc., 757 S.W.2d 432, 435 (Tex. App.--Dallas 1988, no writ).

The trial court properly found that Caddell failed to comply with the contractual provision that she file a written proof of loss and that the filing of such a proof of loss was a condition precedent to coverage under the policy.

Did the fact that Travelers provided a toll-free telephone number for its policyholders to use to call in oral claims or the fact that Travelers responded promptly to a called-in claim from Caddell raise a question of waiver under the policy it issued to Caddell? Could it have been estopped to deny that its actions in responding to a telephonic notice precluded it from raising this defense at trial? Since neither waiver nor estoppel was pled or pursued pursuant to Rule 94 of the Texas Rules of Civil Procedure, Caddell raised neither issue and we do not explore what might have been if she had. See Tex. R. Civ. P. 94.

The issue of mitigation of damages is not addressed here. If Travelers is not liable under the policy of insurance due to the violation of the condition precedent to coverage, neither the amount of damages sustained nor the question of whether the damages could have been mitigated is pertinent.

We affirm the judgment.

Bailey C. Moseley

Justice

Date Submitted: January 24, 2007

Date Decided: June 1, 2007
1. The parents' claims were restricted to ancillary damages with regard to the mold issue, but are not part of this appeal.
2.
This unusual wording begs the question as to what enforcement remedies would be available to Caddell if she "asks" Travelers to reissue the check and Travelers then refuses to honor that "obligation." However, Caddell does not complain of this oddity and we do not address it.
3. Travelers's coverage under the insurance policy terminated July 19, 2002.
4. State Board of Insurance Order 23080 states the following:

As respects bodily injury liability coverage and property damage liability coverage, unless the company is prejudiced by the insured's failure to comply with the requirement, any provision of this policy requiring the insured to give notice of action, occurrence or loss, or requiring the insured to forward demands, notices, summons or other legal process, shall not bar liability under this policy.

Available at http://www.tdi.state.tx.us/company/pcck23080.html.