Raphael Dimenick Sam v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00040-CR
NO. 09-19-00041-CR
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RAPHAEL DIMENICK SAM, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause Nos. 18-29123, 18-29124
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MEMORANDUM OPINION
A jury found appellant Raphael Dimenick Sam guilty of aggravated robbery
and aggravated kidnapping. In trial cause number 18-29123, the jury assessed Sam’s
punishment as a habitual felony offender at life imprisonment for the offense of
aggravated robbery and assessed a $10,000 fine. In trial cause number 18-29124, the
jury assessed Sam’s punishment as a habitual felony offender at ninety-nine years
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of confinement for the offense of aggravated kidnapping. In each case, Sam
complains about the admission of evidence and argues that his sentence constitutes
cruel and unusual punishment. In trial cause number 18-29124, Sam argues that the
trial court erred by denying his motion in arrest of judgment. In a letter brief, Sam
challenges the trial court’s assessment of court costs and requests that we modify the
judgments to correct a clerical error. We affirm the trial court’s judgments in each
cause as modified.
Admission of Evidence
In his first issue in each case, Sam complains that the trial court erred by
allowing evidence regarding the mental injuries of the victim, T.C., which Sam
contends is irrelevant and not an element of the offense. According to Sam, the
admission of T.C.’s victim impact testimony during guilt-innocence was harmful
and requires reversal. We disagree.
We review the trial court’s admission of victim impact evidence for an abuse
of discretion. DeLarue v. State, 102 S.W.3d 388, 402 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d). We will uphold a trial court’s ruling if it is reasonably
supported by the record and is correct under any applicable legal theory. State v.
Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Victim impact evidence may
be admissible during the punishment phase when the evidence has some bearing on
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the defendant’s personal responsibility or moral culpability. Espinosa v. State, 194
S.W.3d 703, 711 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Relevant victim
impact evidence may include evidence that concerns the physical, psychological, or
economic effect of the crime on the complainant or his family. Id.; see also Tex. R.
Evid. 401.
The record shows that during T.C.’s direct examination, T.C testified, without
objection, that he no longer walked to the store at night. Generally, to preserve error
for appellate review, a defendant must make a timely, specific objection at trial. See
Tex. R. App. P. 33.1(a)(1)(A). Because Sam failed to timely object to T.C.’s
testimony that he no longer walked to the store at night, we hold that Sam has failed
to preserve any error. See id.
The record further shows that when the prosecutor asked T.C. if he let his
family go out at night, defense counsel objected based on relevance. The prosecutor
claimed that it was relevant to T.C.’s mental injuries, and defense counsel argued
that it was improper bolstering of the witness and was not acceptable during the
guilt-innocence phase. The trial court stated that during direct examination, it would
allow a full exploration of the extent of injuries because it is an element of the
offense. However, the prosecutor made no further attempt to ask T.C. if he let his
family go out at night, and Sam does not point this Court to anything in the record
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that shows the trial court admitted any evidence concerning T.C.’s mental injuries.
See Espinosa, 194 S.W.3d at 711. Instead, the record shows that the prosecutor asked
T.C. if he was still having physical injuries or problems, and Sam made no objection.
Regardless, T.C.’s testimony concerning the extent of his physical injuries was
relevant to prove that Sam caused bodily injury. See id. We conclude that the record
fails to support Sam’s contention that the trial court erred by allowing irrelevant
evidence of T.C.’s mental injuries. Accordingly, in each case, we overrule Sam’s
first issue.
Motion in Arrest of Judgment
In his second issue in trial cause number 18-29124, Sam complains that the
trial court erred by denying his motion in arrest of judgment. Sam argues that the
judgment in his aggravated kidnapping case is invalid because it contains an
affirmative finding that a deadly weapon was used or exhibited when that issue was
not appropriately pleaded.
The indictment alleges that Sam:
did then and there intentionally and knowingly abduct [T.C.], hereafter
styled the Complainant, by restricting the movements of the
Complainant without the consent of the Complainant, so as to interfere
substantially with Complainant’s liberty, by moving [T.C.] from one
place to another, with the intent to prevent the Complainant’s [liberty]
by using and threatening to use deadly force, namely, by threatening to
shoot the Complainant with a firearm and by striking the Complainant
with a firearm and by stabbing the Complainant with a knife, that in the
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manner of its use and intended use is capable of causing serious bodily
injury and death, and with the intent to inflict bodily injury on the
Complainant or fa[c]ilitate the commission of a felony, to-wit:
Robbery[.]
The application paragraph of the jury charge tracked the language of the indictment.
The jury found Sam guilty of the offense of aggravated kidnapping, as charged in
the indictment. The record shows that the trial court entered a deadly weapon
finding. Sam filed a motion in arrest of judgment, complaining that the affirmative
finding was improperly entered on the judgment because “deadly weapon” was not
specifically pleaded in the indictment and no special issue was submitted during
punishment. The trial court denied Sam’s motion.
A deadly weapon is anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury. Tex. Penal Code Ann. §
1.07(a)(17)(B). “A firearm is a deadly weapon per se.” Ex parte Huskins, 176
S.W.3d 818, 820 (Tex. Crim. App. 2005). There are three major modes by which a
trial court may make an affirmative finding of a deadly weapon when the jury is the
trier of fact: (1) when the indictment itself alleges a deadly weapon; (2) when the
instrument used is per se a deadly weapon, such as a firearm; or (3) when the jury
makes an affirmative finding through a deadly weapon special issue included in the
jury charge. Lafleur v. State, 106 S.W.3d 91, 95 (Tex. Crim. App. 2003).
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The State specifically pleaded that a firearm was used in the commission of
the offense of aggravated kidnapping, and a firearm is a deadly weapon per se. See
Ex parte Huskins, 176 S.W.3d at 820. We conclude that the trial court’s entry of an
affirmative finding that Sam used a deadly weapon, namely a firearm, was proper.
See Lafleur, 106 S.W.3d at 95. Accordingly, the trial court did not err by denying
Sam’s motion in arrest of judgment. In trial cause number 18-29124, we overrule
issue two.
Cruel and Unusual Punishment
In his second issue in trial cause number 18-29123 and his third issue in trial
cause number 18-29124, Sam maintains that he should be granted a new punishment
hearing because his sentence of ninety-nine years for aggravated kidnapping and his
life sentence for aggravated robbery constitute cruel and unusual punishment under
the Texas and United States Constitutions, because his sentences are grossly
disproportionate to the offenses committed. See U.S. Const. amend. VIII; Tex.
Const. art. I, § 13. According to Sam, the harm he caused the victim was not life
threatening, there was no evidence that the victim suffered any ongoing trauma other
than a fear of leaving home at night, there was no evidence that he threatened or
caused any harm to society, and his culpability was debated by the police who
responded to the scene.
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In his brief, Sam cites one case in which the defendant was convicted of
aggravated robbery and aggravated sexual assault and three cases in which the
defendant was convicted of aggravated robbery and aggravated kidnapping. In all
the cases Sam cites, the defendant received shorter sentences than Sam did in the
cases at issue.
Generally, a sentence that is within the range of punishment established by
the Legislature is not excessive, cruel, or unusual, and will not be disturbed on
appeal. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016); Jackson v.
State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). An appellate court rarely
considers a punishment within the statutory range for the offense excessive,
unconstitutionally cruel, or unusual under either Texas law or the United States
Constitution. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet.
ref’d); see also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999,
no pet.). An exception to this general rule is recognized when the sentence is grossly
disproportionate to the offense. Solem v. Helm, 463 U.S. 277, 289-90 (1983); see
also Harmelin v. Michigan, 501 U.S. 957, 1004-05 (1991) (Kennedy J., concurring).
Except for cases involving capital punishment, successful challenges to the
proportionality of particular sentences are exceedingly rare. Solem, 463 US. at 289-
90.
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To determine whether a sentence is grossly disproportionate to a particular
defendant’s crime, we consider (1) the severity of the offense in light of the harm
caused or threatened to the victim; (2) the culpability of the defendant; and (3) the
defendant’s prior adjudicated and unadjudicated offenses. Simpson, 488 S.W.3d at
323. In the rare case in which this threshold comparison leads to an inference of
gross disproportionality, we then compare the defendant’s sentence with the
sentences of other offenders in Texas and with the sentences imposed for the same
crime in other jurisdictions. Id. “If this comparative analysis validates an initial
judgment that the sentence is grossly disproportionate, the sentence is cruel and
unusual.” Id.
Aggravated robbery and aggravated kidnapping are first-degree felony
offenses, which carry a punishment range of confinement for life or for any term of
not more than ninety-nine years or less than five years. Tex. Penal Code Ann. §§
12.32(a), 20.04(c), 29.03(b). In addition to imprisonment, a felony of the first degree
may be punished by a fine not to exceed $10,000. Id. § 12.32(b). In both cases, Sam
was charged as a repeat felony offender, and Sam’s previous convictions included
two felony possessions of a controlled substance and three aggravated robberies. See
id. § 12.42(c)(1). The record shows that Sam pleaded “true” to all five enhancement
paragraphs, thereby subjecting him to a punishment range in each case to
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imprisonment for life, or for any term of not more than ninety-nine years or less than
fifteen years. See id. We conclude that Sam’s sentence of ninety-nine years of
confinement for aggravated kidnapping falls within the applicable punishment range
and is not unconstitutionally excessive or cruel and unusual. See id. § 12.42(c)(1),
20.04(c). We further conclude that Sam’s life sentence and $10,000 fine for
aggravated robbery falls within the applicable punishment range and is not
unconstitutionally excessive or cruel and unusual. See id. § 12.42(c)(1), 29.03(b).
Additionally, having reviewed the records and considered the harm to Sam’s
victim, Sam’s culpability, and his prior offenses, we cannot conclude that either case
is one of those rare cases that leads to the inference that Sam’s sentence was grossly
disproportionate to the offense. See Solem, 463 US. at 289-90; Simpson, 488 S.W.3d
at 323. Accordingly, in trial cause number 18-29123, we overrule issue two, and in
trial cause number 18-29124, we overrule issue three.
Modification of Judgments
Sam claims that there is a clerical error in the trial court’s judgments that needs
to be reformed. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.
Crim. App. 1993). Sam requests that we correct both judgments which reflect that,
“THIS SENTENCE SHALL RUN: N/A” to reflect that the sentence shall run
concurrently because Sam was found guilty of more than one offense arising out of
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the same criminal episode prosecuted in a single criminal action. See Tex. Penal
Code Ann. § 3.03(a). We note that the record reflects that when the trial court orally
pronounced Sam’s sentences, the trial court ordered that the sentences shall run
concurrently. See Bigley, 865 S.W.2d at 27. We modify the trial court’s judgments
in trial cause numbers 18-29123 and 18-29124 to show that Sam shall serve those
sentences concurrently.
Sam also challenges the trial court’s assessment of court costs in each of the
causes instead of only once. The record reflects that the trial court assessed costs of
$359 in trial cause numbers 18-29123 and 18-29124. Article 102.073(a) of the Texas
Code of Criminal Procedure provides as follows: “In a single criminal action in
which a defendant is convicted of two or more offenses or multiple counts of the
same offense, the court may assess each court cost or fee only once against the
defendant.” Tex. Code Crim. Proc. Ann. art. 102.073(a). Sam was convicted of
aggravated robbery and aggravated kidnapping in a single criminal action.
Therefore, the trial court’s imposition of $359 in court costs more than once was
improper. See id. We modify the trial court’s judgment in trial cause number 18-
29124 by deleting $359 from the “Court Costs” section of the first page of the
judgment. We affirm the trial court’s judgments in trial cause numbers 18-29123 and
18-29124 as modified.
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AFFIRMED AS MODIFIED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on December 2, 2019
Opinion Delivered January 22, 2020
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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