In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-02-00104-CR ______________________________
LANCE UNDERWOOD, a/k/a CLARENCE LARRY UNDERWOOD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 29035-B
Before Morriss, C.J., Ross and Grant*, JJ. Opinion by Justice Grant
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*Ben Z. Grant, Justice, Retired, Sitting by Assignment
O P I N I O N I. Factual and Procedural SummaryLance Underwood, also known as Clarence Larry Underwood, pleaded guilty to theft of property, a socket set valued at less than $1,500, enhanced by two prior convictions. The trial court sentenced Underwood to eighteen months in a state jail facility, with no fine assessed. In two related points of error, Underwood contends 1) that his sentence violates both federal and state constitutional prohibitions against cruel and unusual punishment, and 2) that his sentence constitutes involuntary servitude under the Thirteenth Amendment to the United States Constitution.
After accepting Underwood's guilty plea, the trial court asked the State for its recommendation on punishment. The State recommended a sentence of twelve months in a state jail facility. Underwood agreed. The trial court rejected the State's recommendation and sentenced Underwood to eighteen months in a state jail facility. The court determined that "based on the totality of the evidence, including evidence about prior involvements with the criminal justice system," twelve months was not a long enough sentence.
In making its determination, the trial court had the following evidence before it: 1) Underwood's stipulation that all things in the indictment were true, 2) Underwood's stipulation that he had been convicted of two previous thefts, and 3) a police report, including a record check showing Underwood had ten prior theft convictions.
II. Discussion
A. Cruel and Unusual Punishment
In his first and second points of error, Underwood raises both federal and state constitutional claims. Although he presents these claims separately, he cites no authority requiring us to analyze the two claims differently; therefore, we address these claims together. See Jackson v. State, 989 S.W.2d 842 (Tex. App.-Texarkana 1999, no pet.).
Underwood contends his eighteen-month sentence, day for day, constitutes cruel and unusual punishment. Specifically, Underwood contends his sentence is unconstitutionally disproportionate to his crime.
1. Background
U.S. Const. amend. VIII states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." (Emphasis added.) Tex. Const. art. I, § 13 restates this prohibition, except it substitutes the phrase "cruel or unusual punishment." (Emphasis added.)
The Legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State, 905 S.W.2d 655 (Tex. App.-Texarkana 1995, pet. ref'd) (citing State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973)). Texas courts have traditionally held that as long as the punishment is within the range established by the Legislature in a valid statute, the punishment assessed does not violate either the federal or Texas prohibitions against cruel and unusual punishment. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972).
But in 1983, the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 292 (1983), held the Eighth Amendment prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed. The Court in Solem provided a test for reviewing sentences for disproportionateness. The test went beyond the presumption that if a sentence falls within the range established by statute, then it is constitutional. See Jackson, 989 S.W.2d at 846. Specifically, the test required a court's proportionality analysis to be guided by objective criteria, including 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. See Solem, 463 U.S. at 292.
In 1991, the United States Supreme Court in Harmelin v. Michigan, 501 U.S. 957 (1991), again addressed the proportionality analysis. Although a majority of the justices agreed the Eighth Amendment provides a guaranty against disproportional sentences, only four justices continued to support an application of all three factors of the Solem analysis. See generally McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992) (detailing the split among the Court on the application of Solem proportionality analysis).
This court has also confronted the proportionality issue. In Davis, 905 S.W.2d at 665, we, too, questioned the viability of the Solem analysis in light of Harmelin, but applied the test and found that Davis's punishment was not grossly disproportionate. Finally, in Jackson we clarified our proportionality analysis. We recognized that under the United States and Texas Constitutions 1) a prohibition against "grossly disproportionate" sentences survives independently of legislative punishment ranges, and 2) a modified Solem analysis applies-we only compare the appellant's sentence to sentences for similar crimes in the same and other jurisdictions if we infer the appellant's sentence is grossly disproportionate to the offense. Jackson, 989 S.W.2d at 846; see also McGruder, 954 F.2d at 316; Davis, 905 S.W.2d at 664-65.
2. Analysis
In the present case, Underwood did not present the issue of cruel and unusual punishment to the trial court; therefore, he did not preserve it for our review. See Tex. R. App. P. 33.1(a); Jackson, 989 S.W.2d at 844. Even if he had preserved his contention, we do not believe his sentence is grossly disproportionate to the offense. Under the indicted offense, eighteen-months is well within the statutorily prescribed range of 180 days to two years. Underwood stipulated to the truth of the indictment and to two prior theft convictions. In addition, the trial court had before it a police report indicating Underwood had ten prior convictions for theft. Given the record, we conclude Underwood's sentence is not grossly disproportionate. Even if we were persuaded that Underwood's sentence is grossly disproportionate, there is no evidence in the record comparing the sentences imposed on persons in Texas and in other jurisdictions who committed a similar offense. See Latham v. State, 20 S.W.3d 63, 68 (Tex. App.-Texarkana 2000, pet. ref'd); Davis, 905 S.W.2d at 664-65. Underwood's contention is without merit.
B. Involuntary Servitude
Underwood next contends the last six months of his sentence constitutes involuntary servitude under the Thirteenth Amendment to the United States Constitution. His contention is premised on the argument that the last six months of his sentence is illegal. Specifically, Underwood claims that when imposing the additional six months, the trial court went outside the record. We have already established there was sufficient evidence before the trial court to support its decision to impose an eighteen-month sentence. Therefore, Underwood's second point of error is overruled.
The judgment is affirmed.
Ben Z. Grant
Justice*
*Justice, Retired, Sitting by Assignment
Date Submitted: December 5, 2002
Date Decided: January 9, 2003
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