Deiveon Damond Warren v. the State of Texas

NO. 12-22-00133-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DEIVEON DAMOND WARREN, § APPEAL FROM THE 114TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Deiveon Damond Warren appeals his conviction for aggravated robbery. In his sole
issue, he contends that his sentence constitutes cruel and unusual punishment. We affirm.

BACKGROUND
Following their successful flight from a purse-snatching robbery against an elderly
woman at Walmart, Appellant, Zadaviyon Carter, Brittney Dunn, and a juvenile referred to as
“B.J.” drove around Tyler, Texas. When they saw an elderly woman tending to her garden, they
pulled into the church parking lot next door.
For the approximately next fifteen minutes, the group watched for signs of trouble.
Carter eventually approached the elderly woman with a realistic replica of an “AR-style” rifle.
He pointed the gun at her and screamed, “Give me your money!” and demanded her keys. The
victim screamed, and then B.J. appeared from around the corner. B.J. shoved her to the ground
and tried to enter the house, but found the front door locked. The group was unsuccessful in
taking any property from the victim.
At that point, Carter and B.J. returned to the car, where Appellant served as the getaway
driver. Once Carter and B.J. exited the vehicle, the robbery took less than one minute. It is
undisputed that Appellant was the driver and never exited the vehicle during the robbery. The
victim sustained soreness and bruising from falling. The church’s security cameras captured a
video of the robbery.
Appellant was subsequently arrested and indicted for the offense of aggravated robbery.
Appellant pleaded “guilty” without a plea bargain and the matter proceeded to sentencing before
the court.
At the sentencing hearing, Appellant introduced 469 pages of his medical and
psychological records. Dr. Patricia Plasay, a licensed psychologist at the Forensic and Clinical
Psychology Center, testified at the hearing. She explained that she evaluated Appellant and
reviewed his court records, legal history, the extensive medical and psychological records,
school records, and interviewed Appellant’s mother and former employer. Dr. Plasay concluded
that Appellant had mild intellectual development disorder, which affects his impulse control and
problem-solving ability. However, she admitted that Appellant could understand the difference
between right and wrong, and would understand that committing a robbery was wrong. Dr.
Plasay also explained that it would be easy for officers and others not to notice his disability.
Ultimately, the trial court assessed Appellant’s punishment at seventy-five years of
imprisonment. At the sentencing hearing, Appellant objected that his sentence violated the
Eighth Amendment, was cruel and unusual, and grossly disproportionate to the crime he
committed. This appeal followed.

CRUEL AND UNUSUAL PUNISHMENT
In his sole issue, Appellant argues that the seventy-five-year sentence assessed by the
trial court constitutes cruel and unusual punishment prohibited under the United States
Constitution and the Texas Constitution. In his brief, Appellant also contends that his sentence is
grossly disproportionate to the crime considering his alleged limited role in the robbery as the
getaway driver and his intellectual disability.
Appellant preserved his complaint that his sentence is grossly disproportionate and
constitutes cruel and unusual punishment when he objected at the punishment hearing at the time
sentence was pronounced. See Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013).
The United States Constitution provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend.
VIII. This provision was made applicable to the states by the Due Process Clause of the

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Fourteenth Amendment. Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010).
Similarly, the Texas Constitution provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel or unusual punishment inflicted.” TEX. CONST. art. 1, § 13.
The difference between the Eighth Amendment’s “cruel and unusual” phrasing and the Texas
Constitution’s “cruel or unusual” phrasing is insignificant. Cantu v. State, 939 S.W.2d 627, 645
(Tex. Crim. App. 1997).
The legislature is vested with the power to define crimes and prescribe penalties. See
Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref’d); see also Simmons
v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d). Courts have repeatedly held
that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel,
or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State,
495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664.
In this case, Appellant was convicted of aggravated robbery, a first-degree felony with a
punishment range of no less than five years but no more than ninety-nine years or life
imprisonment. See TEX. PENAL CODE ANN. § 29.03 (West 2019). Thus, the seventy-five-year
sentence imposed by the trial court falls within the range set forth by the legislature. Therefore,
the punishment is not prohibited as cruel, unusual, or excessive per se. See Harris, 656 S.W.2d
at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.
Nevertheless, Appellant urges this Court to consider the factors originally set forth in
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, 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. Id., 463
U.S. at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas
courts and the Fifth Circuit Court of Appeals in light of the Supreme Court’s decision in
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a
threshold determination that the sentence is grossly disproportionate to the crime before
addressing the remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.
1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v.
State, 989 S.W.2d 842, 845–46 (Tex. App.—Texarkana 1999, no pet.). A punishment will be
grossly disproportionate “only in the exceedingly rare or extreme case.” State v. Simpson, 488

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S.W.3d 318, 322-23 (Tex. Crim. App. 2016) (citing Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.
Ct. 1166, 1173, 155 L. Ed. 2d 144 (2003)).
To determine whether a noncapital sentence qualifies for this uncommon and “somewhat
amorphous” exception, we begin this threshold analysis by comparing the gravity of the offense
to the severity of the sentence. Graham v. Florida, 560 U.S. 48, 60, 130 S. Ct. 2011, 2022, 176
L. Ed. 2d 825 (2010); Simpson, 488 S.W.3d at 323; see also Ex parte Chavez, 213 S.W.3d 320,
323-24 (Tex. Crim. App. 2006). Assessing the gravity of the offense requires us to consider (1)
the harm that the defendant caused or threatened to the victim and to society, (2) the defendant’s
culpability, and (3) the defendant’s prior adjudicated and unadjudicated crimes. See Simpson,
488 S.W.3d at 323.
In support of his argument that the trial court should have considered his claims of
intellectual disability, Appellant cites Atkins v. Virginia, in which the United States Supreme
Court held that in a death penalty case, the execution of “mentally retarded” criminals is
prohibited by the Eighth Amendment’s prohibition against cruel and unusual punishment.1
Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252, 153 L. Ed. 2d 335 (2002).
However, we note that the Court also recognized that “[t]hose mentally retarded persons who
meet the law’s requirements for criminal responsibility should be tried and punished when they
commit crimes.” Id., 536 U.S. at 306, 122 S. Ct. at 2244.
Appellant cites no authority holding that defendants suffering from mild intellectual
developmental disorder who are sentenced within the applicable range for the offense leads to an
inference of gross disproportionality. However, as Appellant points out, intellectual disability is
a sentencing issue. See Petetan v. State, 622 S.W.3d 321, 334 (Tex. Crim. App. 2021).
Evidence of Appellant’s intellectual development disorder is relevant evidence and the trial court
here admitted 469 pages of records related to Appellant’s physical and mental health and history,
along with Dr. Plasay’s expert testimony concerning Appellant’s condition. The trial court
considered the evidence and weighed it. Dr. Plasay admitted that Appellant’s intellectual
developmental disorder was mild, he knows right from wrong, and he would know that

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“Mental retardation” is an outdated pejorative term; the modern phrase describing such a condition is
intellectual disability or intellectual developmental disorder. See Hall v. Florida, 572 U.S. 701, 704, 134 S. Ct.
1986, 1990, 188 L. Ed. 2d 1007 (2014) (using the term “intellectual disability” instead of “mental retardation” and
noting the change in terminology has been approved by and is used in the Diagnostic and Statistical Manual of
Mental Disorders (DSM)).

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aggravated robbery of an elderly woman was wrong. See Limbrick v. State, No. 09-09-00214-
CR, 2009 WL 5449069, at *3 (Tex. App.—Beaumont Jan. 20, 2010, no pet.) (mem. op., not
designated for publication) (holding that trial court properly considered evidence of mental
impairment in excessive sentence case, but properly rejected that such evidence led to inference
of gross disproportionality).
Appellant’s crime is severe. It involved the use of force against an elderly woman, a
segment of society that the Legislature has deemed worthy of special protection. In fact, the
statute renders the robbery against an elderly person such as the victim in this case a first-degree
felony, presumably as a further deterrent to commit such crimes. Compare TEX. PENAL CODE
ANN. § 29.02 (West 2019) (robbery statute) with TEX. PENAL CODE ANN. § 29.03(a)(3)(A)
(aggravated robbery of an elderly individual statute). Moreover, the trial court heard evidence
that just prior to the aggravated robbery in this case, Appellant participated in another robbery of
an elderly woman at Walmart. The trial court also heard evidence from which it could conclude
that Appellant served as the orchestrator of the robbery and attempted to minimize his role by
directing his codefendants to commit the actual violence while he waited in the car.
With regard to his culpability, Appellant made an open plea of “guilty.” Regarding the
Walmart robbery, the State provided evidence from the video of the robbery of what appears to
be Appellant directing and instructing the others involved in that robbery, which were the same
individuals who committed the robbery with Appellant in this case. The State also provided
evidence that Appellant was involved in sex trafficking. Furthermore, the evidence showed that
Appellant is a member of a criminal street gang, and the State offered evidence confirming this
fact such as his tattoos and testimony from a gang investigator.2
Finally, we are guided by the holding in Rummel v. Estelle in making the threshold
determination of whether Appellant’s sentences are grossly disproportionate to his crime. 445
U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered
the proportionality claim of an appellant who had received a mandatory life sentence under a
prior version of the Texas habitual offender statute for a conviction of obtaining $120.75 by false
pretenses. See id., 445 U.S. at 266, 100 S. Ct. at 1135. In that case, the appellant received a life
sentence because he had two prior felony convictions—one for fraudulent use of a credit card to

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The trial court stated at the pronouncement of sentence that this offense alone warranted the lengthy
sentence, even without considering his involvement in a street gang or the other offenses, a finding we cannot
conclude amounted to an abuse of discretion, and we do not disturb it on appeal.

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obtain $80.00 worth of goods or services and the other for passing a forged check in the amount
of $28.36. Id., 445 U.S. at 265–66, 100 S. Ct. at 1134–35. After recognizing the legislative
prerogative to classify offenses as felonies and, further, considering the purpose of the habitual
offender statute, the court determined that the appellant’s mandatory life sentence did not
constitute cruel and unusual punishment. Id., 445 U.S. at 284–85, 100 S. Ct. at 1144–45.
In this case, the offense Appellant committed—aggravated robbery—is far more serious
than the combination of offenses committed by the appellant in Rummel, while Appellant’s
sentence is less severe than the life sentence upheld by the Supreme Court in Rummel. Thus, it
is reasonable to conclude that if the sentence in Rummel is not unconstitutionally
disproportionate, neither is Appellant’s sentence in this case.
Because we have concluded that Appellant’s sentence is not grossly disproportionate to
the offense he committed, we need not proceed to the second and third steps of the Solem test to
contrast his sentence to that of others for the same offense in Texas and elsewhere. See
Simpson, 488 S.W.3d at 323. In any event, the State points out that Dunn received a fifteen-year
negotiated sentence for her role in the robbery because she cooperated with the authorities and
assisted in another investigation involving a sex trafficking ring, and Carter received a negotiated
thirty-year sentence because he accepted responsibility for his role in the offense. See Tobar-
Gonzalez v. State, No. 05-21-00974-CR, 2023 WL 1501586, at *3 (Tex. App.—Dallas Feb. 3,
2023, no pet. h.) (mem. op., not designated for publication) (rejecting claim that sentence was
one of “rare” cases leading to grossly disproportionate inference even though defendant took
responsibility “countless times” for his actions, cooperated with law enforcement, and lacked
prior convictions or arrests in violent assault case); Cahill v. State, No. 02-22-00023-CR, 2022
WL 17172339, at *3-5 (Tex. App.—Fort Worth Nov. 23, 2022, pet. ref’d) (mem. op., not
designated for publication) (holding defendant’s sentence for aggravated robbery of elderly
person not grossly disproportionate to crime in similar circumstances where seemingly more
culpable codefendant obtained shorter sentence and victim testified how robbery negatively
affected her physical and mental health). Appellant has not demonstrated a cruel or unusual
punishment assessed under the circumstances.
We therefore find no violation of the Eighth Amendment, and we overrule Appellant’s
sole issue.

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DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

GREG NEELEY
Justice

Opinion delivered May 10, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 10, 2023

NO. 12-22-00133-CR

DEIVEON DAMOND WARREN,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0786-21)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.