In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00159-CR
______________________________
JENNIFER MORGAN SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 31009-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Jennifer Morgan Smith appeals her conviction by the trial court of theft over $1,500.00. See Tex. Penal Code Ann. § 31.03(e)(4)(A) (Vernon Supp. 2006). Smith pleaded guilty and was convicted and sentenced June 22, 2006. There was no plea agreement. The trial court sentenced Smith to eighteen months' confinement in a state-jail facility.
On appeal, Smith contends the sentence imposed by the trial court was disproportionate to the offense, citing Solem v. Helm, 463 U.S. 277 (1983). (1)
Texas courts have traditionally held that, so long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here, Smith's sentence falls within the applicable range of 180 days to two years. See Tex. Penal Code Ann. § 12.35 (Vernon 2003).
That does not end the inquiry. A prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. U.S. Const. amend. VIII; see Solem, 463 U.S. at 290; Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Dunn v. State, 997 S.W.2d 885, 891-92 (Tex. App.--Waco 1999, pet. ref'd); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.--Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.--Dallas 1994, pet. ref'd).
Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes 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. Harmelin at least raised questions about the viability of the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin, but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Dunn, 997 S.W.2d at 892; Lackey, 881 S.W.2d at 420-21. In light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence, and then, only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors--(1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469 (Tex. App.--Texarkana 2006, no pet.); Dunn, 997 S.W.2d at 892; Lackey, 881 S.W.2d at 420-21.
Smith's sentence is eighteen months' confinement; the range for a state-jail felony is 180 days' to two years' imprisonment. This range has been determined by the Legislature to constitute appropriate punishment for this type of crime. Nothing in this record demonstrates or raises an inference that this sentence was grossly disproportionate to this offense. (2) Smith has failed to show that her sentence was constitutionally disproportionate to the offense for which she was convicted. Her sole contention is overruled.
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: February 13, 2007
Date Decided: February 15, 2007
Do Not Publish
1. Smith did not object to the sentence on the ground it was disproportionate to the crime, or on any other ground, at the time it was imposed. Her motion for new trial, however, contains a contention that the sentence was disproportionate to the offense. A motion for new trial is an appropriate way to preserve this type of claim for review. See Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.).
2. Even if there had been an inference raised that this sentence was grossly disproportionate, this record contains no evidence comparing this sentence with others in the same jurisdiction for this offense, or those imposed on defendants in other jurisdictions who committed a similar offense. See Delacruz, 167 S.W.3d at 906.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00041-CR
______________________________
TAKISHA DESHAWN ROLFE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 34257-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Takisha Deshawn Rolfe appeals her conviction by the trial court for forgerya state-jail felony. See Tex. Penal Code Ann. § 32.21 (West 2011). Rolfe entered an open plea[1] of guilty to the trial court and signed a stipulation of evidence. In the stipulation, Rolfe admitted she passed three forged checks. At the plea hearing, the trial court accepted the plea of guilty and found Rolfe guilty, but did not pronounce Rolfes sentence. At a later hearing, the trial court imposed a sentence of nine months confinement. The Texas Court of Criminal Appeals has granted Rolfe an out-of time appeal. See Ex parte Rolfe, No. AP-76,474, 2011 Tex. Crim. App. Unpub. LEXIS 10 (Tex. Crim. App. Jan. 12, 2011) (per curiam) (not designated for publication).
Rolfes sole issue on appeal is that the trial court failed to remain neutral and became adversarial. Rolfe argues the nature of the questioning by the trial court essentially accused the Appellant of lying in regard to her having a sister who worked at Kohls and her previous criminal conspiracy with the sister to commit a crime similar to the case at bar. According to Rolfe, the trial court, even in the face of overwhelming evidence Rolfe did not have a sister, indicated it had questions about the credibility of Rolfe. Rolfe argues the trial courts decision to sentence Rolfe to confinement instead of community supervision demonstrates the trial court failed to remain neutral.[2]
Due process requires a neutral and detached judicial officer. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Absent a clear showing to the contrary, we presume that the trial court was neutral and impartial. Id.; Brown v. State, 334 S.W.3d 789, 806 (Tex. App.Tyler 2010, pet. refd).
At the plea hearing, Rolfe testified she was twenty-eight years old and had never been convicted of a felony. Rolfe testified she had only been arrested once, and the charges had been dropped.[3] Rolfe testified she was a high school graduate, had attended college for nine months, and was a single parent of two children.
On cross-examination, the State asked Rolfe when was the last time she smoked marihuana and Rolfe responded, I would say probably Friday. Rolfe testified she did not regularly smoke marihuana, but admitted she had tried marihuana before. During the plea hearing, the following exchanges between Rolfe and the trial court occurred:
THE COURT: . . . . Ive got a question or two, if yall dont mind. Is the use of marihuana illegal and a violation of the laws of the State of Texas?
[Rolfe]: Yes.
THE COURT: Youre telling me that with this case pending before this court, after you have appeared before me, waived the right to a trial by jury, entered a plea of guilty to the indictment, that you went out and violated the laws of this state?
[Rolfe]: Yes.
THE COURT: And then youre asking me to show you mercy by granting you probation?
. . . .
THE COURT: And did you tell Ms. Choice that you knew how to do it because you had done the same thing before with your sister who was working at Kohls Department Store?
[Rolfe]: No, I dont have a sister.
THE COURT: Well, I guess the police officer must not have got it right. Lets go to page 5 of the police offense report, States Exhibit 2. Im looking at the second full paragraph. Ms. Choice said -- this is the interview, this is the police offense report filled out by the Detective Greg Stewart. And it is dated December -- or printed December the 7th, 2005. Ms. Choice said when she got home that night, Phillip and Keisha -- thats you, Keisha?
[Rolfe]: Yes.
THE COURT: were outside. Keisha had a checkbook that she had taken from the purse at Mervyns. Keisha and Phillip said they had seen some things in Mervyns they wanted. They asked Ms. Choice to let them use the checks to make purchases. Keisha said she knew how to do it because she had done the same thing before with her sister who was working at Kohls Department Store. Ms. Choice said that her mother told her to go ahead and let Phillip and Keisha use the checks. That wrong?
[Rolfe]: Yes.
THE COURT: Police officer just made that up?
[Rolfe]: I didnt speak to him. But thats her story.
. . . .
THE COURT: . . . . Let me tell you something, youre asking this Court for mercy, and if I get the idea that youre not telling me the truth, Im going to tell you whats getting ready to happen to you, Im going to send you to the penitentiary. Do you understand me?
On redirect, Rolfe testified she had never talked with the investigating police officer. Rolfes mother testified that Rolfe did not have a sister. At the conclusion of the plea hearing, the trial court stated:
Im not comfortable with this case based on how that report reads. Im certainly not comfortable when someones standing before -- sits here and tells me they violated the law after having come before this Court and entered a plea of guilty and waived the right to trial by jury.
Im going to take this one under advisement for some period. I dont know how long. I really wish we had that co-defendant as I read her statement. Her, the co-defendant, Choice, she flat puts it on this defendant without any hesitation.
Im just not -- Im not comfortable that Ive gotten the truth today. So its under advisement. Let you know when I make the decision coming back here.
At the later sentencing hearing, the State made the following statement:
The State feels that the witnesses were being honest. I understand there was a slight discrepancy in the police report, I think its the way it was read that threw everybody off. I think shes a candidate for probation, Judge, I dont do that very often, but I think it might be possible in this case.
The Texas Court of Criminal Appeals has noted that a trial judge may question a witness to elicit information or to clarify issues. Morrison v. State, 845 S.W.2d 882, 903 (Tex. Crim. App. 1992); see Navarro v. State, 477 S.W.2d 291 (Tex. Crim. App. 1972) (fact a trial judge questions witness to clarify witness testimony does not indicate bias). The record neither shows that the trial court imposed a predetermined punishment, see Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006), nor does it show that the trial court did not consider the possibility of community supervision. The record shows that the trial court merely believed community supervision was not appropriate for this particular defendants situation.
Although the trial court expressed doubts as to whether Rolfe was being truthful at the earlier hearing, the trial court did not express any doubts as to Rolfes truthfulness after the State stated it believed the witnesses were truthful. The trial court provided the following reason for its sentencing decision:
You chose during the pendency of the sentencing from the time you pled guilty up to between that date and August 14th, to go out and violate the law again by the use of marijuana.
That is not the type of person this Court considers worthy of the grant of mercy, and I refuse to do it, and have consistently said that is the position I believe in strongly. Im not going to change for this particular case. I look at each one of them.
But Im not going to grant you probation. Im going to send you where you sent yourself the day you chose -- the day you chose to use marijuana while awaiting sentencing. You pronounced the sentence of state jail confinement against yourself, and I assess your punishment at nine calendar months confinement . . . .
The trial courts stated reason for not placing Rolfe on community supervision was her admitted drug use. While we may not have reached the same decision as the trial court, the decision was within the trial courts discretion, and Rolfe has failed to make a clear showing the trial court failed to remain neutral.
For the reasons stated, we overrule Rolfes sole issue and affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: August 1, 2011
Date Decided: August 3, 2011
Do Not Publish
[1]There was not any negotiated sentence agreement.
[2]We note that Rolfe argues the trial court should have placed Rolfe on community supervision. To the extent this argument can be construed as a failure to consider the entire range of punishment, the argument is not preserved for our review. A trial court denies due process if it refuses to consider the entire range of punishment for an offense or refuses to consider the evidence and imposes a predetermined punishment. Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002). A timely objection is required to preserve such a complaint for review. Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.Texarkana 2002, pet. refd); Washington v. State, 71 S.W.3d 498, 499 (Tex. App.Tyler 2002, no pet.); Cole v. State, 757 S.W.2d 864, 867 (Tex. App.Texarkana 1988, pet. refd). Because Rolfe failed to object, any complaint was forfeited.
[3]Rolfe testified she had been arrested in Tennessee for possession of stolen property, but the charges had been dropped.