Ashley Lucille Roberts v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-440-CR
ASHLEY LUCILLE ROBERTS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
In two points, appellant Ashley Lucille Roberts appeals her conviction for
burglary of a habitation, asserting that her sentence was excessive and that the trial
court abused its discretion by denying her motion for a new trial without a hearing.
W e will affirm.
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 See Tex. R. App. P. 47.4.
II. F ACTUAL & P ROCEDURAL B ACKGROUND
Roberts waived her right to a jury trial and entered an open plea of guilty to the
offense of burglary of a habitation. At the punishment hearing, the State offered
evidence of Roberts’s five prior convictions and called three witnesses to testify
about the burglary. The evidence showed that Roberts and two accomplices
entered the home of Roberts’s aunt and uncle without their permission and stole
several items, including electronics, jewelry, a gun, and personal mementos,
estimated to be worth a total of approximately $12,000. Roberts admitted her role
in the burglary to her aunt and uncle and in a written statement to police. She
testified at the punishment hearing and admitted to her criminal record, to her
substance abuse problem, and to her attempts to get her aunt to lie to the judge
about the burglary. Roberts testified that she is trying to straighten out her life, that
she suffers from anxiety, and that she is remorseful for her actions. The trial court
sentenced her to fifteen years’ confinement, a $2,000 fine, and $12,031.22 in
restitution.
Roberts filed a motion for new trial, arguing that the trial court erred by
imposing an excessive punishment. The trial court denied her motion without a
hearing, and Roberts perfected this appeal.
III. P UNISHMENT N OT E XCESSIVE
In her second point, Roberts contends that the trial court abused its discretion
by imposing an excessive punishment. She does not dispute that her sentence was
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within the range provided by law, but she argues that the punishment was excessive
in light of the facts and her circumstances, including her acceptance of responsibility
for the crime, her admissions about her psychological condition and criminal record,
and her tough life, together with her counsel’s and both victims’s requests that she
receive community supervision.
W e review a sentence imposed by a trial court for an abuse of discretion. See
Jackson v. State, 680 S.W .2d 809, 814 (Tex. Crim. App. 1984). Generally, a
sentence within the statutory range of punishment for an offense is not excessive,
cruel, or unusual punishment. Hill v. State, 493 S.W .2d 847, 849 (Tex. Crim. App.
1973); Alvarez v. State, 63 S.W .3d 578, 580 (Tex. App.—Fort W orth 2001, no pet.).
The United States Supreme Court announced a narrow exception in Solem v. Helm,
in which the court held that criminal sentences must be proportionate to the crime
and that even a sentence within the statutorily prescribed range may violate the
Eighth Amendment. 463 U.S. 277, 290, 103 S. Ct. 3001, 3010 (1983).
In conducting an Eighth Amendment proportionality analysis, we first make a
threshold comparison of the offense against the severity of the sentence to
determine if the sentence is grossly disproportionate to the offense. See id.;
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849
(1992); Moore v. State, 54 S.W .3d 529, 542 (Tex. App.—Fort W orth 2001, pet.
ref’d). If we determine that the sentence is grossly disproportionate to the offense,
we must then compare the sentence received to sentences for similar crimes in this
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jurisdiction and sentences for the same crime in other jurisdictions. See Solem, 463
U.S. at 292, 103 S. Ct. at 3011; McGruder, 954 F.2d at 316; Moore, 54 S.W .3d at
542.
Here, Roberts could have been sentenced to between two and twenty years’
confinement and a fine up to $10,000. See Tex. Penal Code Ann. § 12.33 (Vernon
Supp. 2009), § 30.02(a)(1), (c)(2) (Vernon 2003). Her sentence of fifteen years’
confinement and a $2,000 fine is within this statutory range and, consequently, is not
excessive unless it fails the proportionality analysis. See McGruder, 954 F.2d at
316; Moore, 54 S.W .3d at 542.
Comparing the gravity of the offense against the severity of her sentence, we
conclude that, given the nature of the offense, the relationship Roberts had to the
victims, and Roberts’s past criminal record, her sentence was not grossly
disproportionate to the offense. See Solem, 463 U.S. at 290, 103 S. Ct. at 3009;
Moore, 54 S.W .3d at 542–43. W e hold that trial court did not abuse its discretion in
its sentencing, and we overrule Roberts’s second point. See Jackson, 680 S.W .2d
at 814.
VI. D ENIAL OF M OTION FOR N EW T RIAL N OT ABUSE OF D ISCRETION
In her first point, Roberts contends that the trial court abused its discretion by
denying her motion for a new trial without a hearing. The State argues that the trial
court did not abuse its discretion because the matter raised in her
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motion—excessive punishment—was determinable from the record and because
Roberts’s motion did not include a supporting affidavit.
W e review a trial court’s decision to deny a hearing on a motion for a new trial,
as well as the decision to deny the motion itself, under an abuse of discretion
standard. Hobbs v. State, 298 S.W .3d 193, 200 (Tex. Crim. App. 2009); Mallet v.
State, 9 S.W .3d 856, 867–68 (Tex. App.—Fort Worth 2000, no pet.). The purpose
of a hearing on a motion for a new trial is to allow the defendant to develop the issue
raised in the motion. Jordan v. State, 883 S.W .2d 664, 665 (Tex. Crim. App. 1994).
A defendant does not have an absolute right to a hearing on a motion for a new trial.
Hobbs, 298 S.W .3d at 200. To be entitled to a hearing on a motion for new trial, the
movant must raise one or more matters not determinable from the record and
establish the existence of reasonable grounds showing that she could be entitled to
relief. Smith v. State, 286 S.W .3d 333, 339 (Tex. Crim. App. 2009). Even if a matter
is not determinable from the record, a hearing is not required unless the defendant
“establishes the existence of ‘reasonable grounds’ showing that the defendant ‘could
be entitled to relief.’” Id. (quoting Reyes v. State, 849 S.W .2d 812, 816 (Tex. Crim.
App. 1993)).
Here, we have already explained that the trial court did not abuse its discretion
by imposing a sentence within the legislatively-mandated range of punishment. See
Tex. Penal Code Ann. §§ 12.33, 30.02(a)(1), (c)(2); Smith, 286 S.W .3d at 339. The
matter Roberts raised in her motion for new trial—excessive punishment—was
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determinable from the record, and she did not otherwise establish the existence of
reasonable grounds entitling her to relief. See Smith, 286 S.W .3d at 339 (requiring
that motion based on matters not in record be supported by affidavit specifically
setting out the factual basis for the claim). W e hold that the trial court did not abuse
its discretion by denying Roberts’s motion for new trial without a hearing, and we
overrule her first point. See Hobbs, 298 S.W .3d at 200; Mallet, 9 S.W .3d at 867–68.
V. C ONCLUSION
Having overruled Roberts’s two points, we affirm the trial court’s judgment.
SUE W ALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and W ALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 8, 2010
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