Cahill v. State, 02-22-00023-CR

CourtCourt of Appeals of Texas
Writing for the CourtBRIAN WALKER JUSTICE
PartiesTraci Rene Cahill, Appellant v. The State of Texas
Docket Number02-22-00023-CR
Decision Date23 November 2022

Traci Rene Cahill, Appellant
v.

The State of Texas

No. 02-22-00023-CR

Court of Appeals of Texas, Second District, Fort Worth

November 23, 2022


Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from Criminal District Court No. 1 Tarrant County, Texas Trial Court No. 1623108D

Before Bassel, Womack, and Walker, JJ. Memorandum Opinion by Justice Walker

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MEMORANDUM OPINION

BRIAN WALKER JUSTICE

I. BACKGROUND

A jury found appellant Traci Rene Cahill guilty of (1) aggravated robbery with a deadly weapon and (2) credit-card or debit-card abuse of the elderly. See Tex. Penal Code Ann. §§ 29.03, 32.31(d). After the punishment trial, the trial court sentenced Cahill to thirty years' imprisonment for the first offense and ten years' incarceration for the second. The trial court ordered that the two sentences would run concurrently.

II. CAHILL'S POINT

In one point, Cahill contends that "[t]he sentence assessed is grossly disproportionate to the offense and therefore violates the Eighth Amendment's prohibition on cruel and unusual punishment." Cahill focuses on her thirty-year sentence for aggravated robbery with a deadly weapon and complains that a party to the offense-the person who actually used the deadly weapon (a taser)-received only a seventeen-year sentence.[1] We hold that Cahill has not preserved her complaint. We further hold that even if she had preserved her complaint, it has no merit.

III. PRESERVATION

To preserve a complaint that a sentence is grossly disproportionate to the offense, the issue must be raised at the trial-court level. Thomas v. State, No. 08 00092-CR, 2017 WL 5898963, at *4 (Tex. App.-El Paso Nov. 30, 2017, no pet.)

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(not designated for publication); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.-Fort Worth 2009, pet. ref'd); Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.-Fort Worth 2005, no pet.). This can be accomplished by (1) objecting at the punishment hearing, (2) objecting when the sentence is pronounced, or (3) raising the issue in a motion for new trial. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); Thomas, 2017 WL 5898963, at *4; Hansana v. State, No. 02-15-00119-CR, 2016 WL 741976, at *1 (Tex. App.-Fort Worth Feb. 25, 2016, no pet.) (mem. op., not designated for publication); Kim, 283 S.W.3d at 475.

Cahill neither object on Eighth Amendment grounds to her punishment when it was imposed nor raised Eighth Amendment grounds in a motion for new trial. Because Cahill did not raise her disproportionate-sentence claim in the trial court, she has failed to preserve error for appeal.

IV. MERITS

Even if we were to analyze her appellate point, Cahill's complaint has no merit. See Nance v. State, Nos. 02-21-00157-CR, 02-21-00158-CR, 2022 WL 2526931, at *1 n.2 (Tex. App.-Fort Worth July 7, 2022, pet. ref'd) (mem. op., not designated for publication) (addressing excessive-punishment claim notwithstanding lack of preservation); Fulton v. State, No. 02-19-00227-CR, 2020 WL 3969851, at *2 (Tex. App.-Fort Worth June 11, 2020, no pet.) (mem. op., not designated for publication) (same); Neeley v. State, No. 02-14-00241-CR, 2015 WL 1967306, at *2 (Tex. App.-Fort Worth Apr. 30, 2015, no pet.)

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(mem. op., not designated for publication) (same); Brewer v. State, No. 2-09-041-CR, 2010 WL 1137049, at *2 (Tex. App.-Fort Worth Mar. 25, 2010, no pet.) (mem. op., not designated for publication) (same); Miller v. State, No. 2-05-031-CR, 2006 WL 1791660, at *4 (Tex. App.-Fort Worth June 29, 2006, no pet.) (mem. op., not designated for publication) (same). But see Crawford v. State, No. 2-04-299-CR, 2005 WL 1477958, at *4 (Tex. App.-Fort Worth June 23, 2005, pet. ref'd) (per curiam) (mem. op., not designated for publication) (declining to address excessive-punishment claim when not preserved).

A. Applicable Law

The Eighth Amendment prohibits cruel and unusual punishment, including extreme sentences that are grossly disproportionate to the crime. Graham v. Florida, 560 U.S. 48, 60, 130 S.Ct. 2011, 2021 (2010). The Supreme Court cautioned, "Reviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals." Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009 (1983), questioned in part by Harmelin v. Michigan, 501 U.S. 957, 965, 985-90, 111 S.Ct. 2680, 2686, 2696-99 (1991) (Scalia, J., joined by Rehnquist, C.J., in an opinion). "[T]he trial court may impose any punishment within the relevant statutory range." Thomas, 2017 WL 5898963, at *4 (citing Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999)).

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Subject only to a very limited, exceedingly rare, gross-disproportionality review, a punishment that falls within the legislatively prescribed range and is based on the sentencer's informed normative judgment is unassailable on appeal. Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006); see also Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 1173 (2003) ("[T]he only relevant clearly established law . . . is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the 'exceedingly rare' and 'extreme' case."). Under Solem, the proportionality of a sentence is evaluated by considering (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. 463 U.S. at 292, 103 S.Ct. at 3011.

In light of the Supreme Court's decision in Harmelin, however, Texas courts and the Fifth Circuit Court of Appeals have modified the application of the Solem test to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See 501 U.S. at 965, 985-90, 111 S.Ct. at 2686, 2696-99 (Scalia, J., joined by Rehnquist, C.J., in an opinion); see also McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Fulton, 2020 WL 3969851, at *3; Medina v. State, No. 12-19-00048-CR, 2020 WL 1443565, at *2 (Tex. App.-Tyler Mar. 25, 2020, no pet.) (mem. op., not designated for publication); Moore v. State, 54 S.W.3d 529, 542 (Tex. App.-Fort Worth 2001, pet. ref'd). When comparing the gravity of the offense to the severity of the sentence, courts must examine (1) the sentence's

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severity in light of the harm caused or threatened to the victim or society, (2) the offender's culpability, and (3) the offender's prior adjudicated and unadjudicated offenses. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016); Fulton, 2020 WL 3969851, at *3. If this comparison leads to an inference of gross disproportionality-which should be a rare occurrence-only then should courts compare the defendant's sentence with (1) the sentences received by other...

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