State v. Simpson, NO. PD–0599–15

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: Newell, J.
• Citation: 488 S.W.3d 318
• Parties: The State of Texas v. Mark Twain Simpson, Appellee
• Docket Number: NO. PD–0599–15
• Decision Date: 27 April 2016

488 S.W.3d 318

The State of Texas
v.
Mark Twain Simpson, Appellee

NO. PD–0599–15

Court of Criminal Appeals of Texas.

Delivered: April 27, 2016

Bruce Anton, Sorrels, Udashen & Anton, Dallas, for Appellant.

Kimberly Duncan, Dallas County District Attorney's Office, Dallas, Lisa McMinn, State's Attorney, Austin, for State of Texas.

Newell, J., delivered the opinion of the Court in which Keller, P.J., Johnson, Keasler, Hervey, Alcala, Richardson, and Yeary, JJ., joined.

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 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

488 S.W.3d 320

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 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 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.”

488 S.W.3d 321

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 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 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...