TEROME OMAR RICHARDSON v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Morris

Although Terome Omar Richardson was indicted for capital murder, he was convicted by a jury of the lesser included offense of murder.   He complains in a single point of error that the Texas Legislature violated his rights under the federal constitution by amending the law to prohibit juries from awarding probation to those defendants convicted of murder.   We affirm the trial court's judgment.   The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled.

During a pretrial hearing in appellant's case, his trial counsel noted that, should appellant be convicted of the lesser included offense of murder, he would not be eligible for probation due to an amendment to the Texas Code of Criminal Procedure.   Counsel argued,

We believe that to be a denial of due process, and we would object under Article 1, sections 13 and 19 of the Texas Constitution and the 5th and 14th Amendments of the U.S. Constitution.

Further we would object that it constitutes cruel and unusual punishment to not have an individual to be eligible for probation who's never been convicted of a felony before, and in other agg first [sic] felonies, such as aggravated robbery, aggravated kidnapping, a person could receive a probated sentence and a life could be taken in all of those alleged offenses.

The trial court overruled appellant's objections.

In his brief on appeal, appellant references these objections and states that “[d]ue to time and page limitations, the appointed author has chosen to focus the argument primarily on the violation of the U.S. Constitution that does not include Cruel and Unusual Punishment (Amd 8) analysis.”   As noted by the State, however, appellant's lengthy brief offers no relevant authority explaining how the amendment of the code of criminal procedure implicated a specific right under the Fifth or Fourteenth Amendment.   He offers no analysis of the protections guaranteed by these amendments or explanation of how the amendments apply to his case.   He has therefore waived his complaint due to inadequate briefing.   See Tex.R.App. P. 38.1(i);  Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App.2000).

Moreover, even if the legislature's act were unconstitutional, a conclusion we do not make, appellant could not show how he was harmed by the error.   A criminal defendant is ineligible for probation if he receives a sentence greater than ten years.   See Tex.Code Crim. Proc. Ann. art. 42.12, § 4(d)(1) (West Supp.2009).   In this case, the jury sentenced appellant to life imprisonment.   Accordingly, he would have been ineligible for probation even if he had not been convicted of murder.   Any error, even of a constitutional magnitude, would have been harmless in this case.   See Tex.R.App. P. 44.2(a).

We overrule appellant's sole point of error.   We affirm the trial court's judgment.

JOSEPH B. MORRIS JUSTICE