In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00159-CR
______________________________
NINA FLORINA MAGNESON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 35865-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Nina Florina Magneson has appealed from her conviction on her open plea of guilty to the offense of robbery, a second-degree felony. See Tex. Penal Code Ann. § 29.02 (Vernon 2003). The trial court sentenced Magneson to eight years' imprisonment. See Tex. Penal Code Ann. § 12.33 (Vernon 2003).
On appeal to this Court, Magneson contends, in a single point of error, that the punishment assessed is disproportionate to her crime. Magneson's motion for new trial 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. (1) 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.).
Texas courts have traditionally held that as 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, Magneson's sentence falls within the applicable range of two to twenty years' imprisonment and a fine of up to $10,000.00. See Tex. Penal Code Ann. § 12.33.
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 v. Helm, 463 U.S. 277, 290 (1983); Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.--Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.--Dallas 1994, pet. ref'd); see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (describing this principle as involving a "very limited, 'exceedingly rare,' and somewhat amorphous" review).
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); 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--sentences for similar crimes in the same jurisdiction and sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.--Texarkana 2006, no pet.); Lackey, 881 S.W.2d at 420-21.
We do not believe the sentence was grossly disproportionate to the gravity of the offense, but even if it was, there is no evidence in the record from which we could compare Magneson's sentence to the sentences imposed on other persons in Texas or on persons in other jurisdictions who committed a similar offense. See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.--Texarkana 2000, pet. ref'd); Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.--Texarkana 1995, pet. ref'd). Without such evidence, the record before us does not support Magneson's claim of demonstrable error. Cf. Jackson, 989 S.W.2d at 846 ("there is no evidence in the record reflecting sentences imposed for similar offenses on criminals in Texas or other jurisdictions by which to make a comparison").
There being no other issues before us, we affirm the trial court's judgment.
Bailey C. Moseley
Justice
Date Submitted: January 28, 2009
Date Decided: January 29, 2009
Do Not Publish
1. The trial court did not conduct a hearing on Magneson's motion for new trial, which was
overruled by operation of law.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00021-CV
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IN RE:
EDDIE KEVIN COLEMAN
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion Per Curiam
MEMORANDUM OPINION
Eddie Kevin Coleman has filed a petition for writ of mandamus in which he asks this Court to order the 8th Judicial District Court of Hopkins County, Texas, to rule on his motion to dismiss for want of prosecution in trial court cause number CV34788. Coleman filed his motion to dismiss on December 2, 2008,[1] claiming the State brought a lawsuit for the seizure of $2,240.00 in United States currency on September 7, 2002, and has failed to prosecute that action. Coleman claims that his motion to dismiss was not ruled upon within a reasonable time.
We may grant a petition for writ of mandamus when the relator shows there is no adequate remedy at law to redress the alleged harm and that the act to be compelled is purely ministerial. Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (orig. proceeding) (citing Winters v. Presiding Judge of Criminal Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003)). When a motion is properly filed and pending before a trial court, considering and ruling on that motion is a ministerial act and mandamus may issue to compel the trial court to act. In re Kleven, 100 S.W.3d 643, 644 (Tex. App.Texarkana 2003, orig. proceeding); see also Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.San Antonio 1997, orig. proceeding).
A trial court must consider and rule on a motion brought to the courts attention within a reasonable amount of time. In re Bonds, 57 S.W.3d 456, 457 (Tex. App.San Antonio 2001, orig. proceeding). While we have jurisdiction to direct the trial court to proceed and rule, we may not tell the court what ruling it should make. ODonniley v. Golden, 860 S.W.2d 267, 26970 (Tex. App.Tyler 1993, orig. proceeding).
Colemans motion has been pending and ripe for a ruling for almost sixteen months.[2] Coleman is entitled to have a ruling on his motion. We, therefore, conditionally grant Colemans petition for writ of mandamus. The writ will issue only if the trial court fails to rule on Colemans motion within twenty-one days from the date of this opinion.
BY THE COURT
Date Submitted: March 30, 2010
Date Decided: March 31, 2010
[1]A copy of the motion to dismiss for want of prosecution filed in trial court cause number CV34788 is attached as Appendix 1 to the petition for writ of mandamus. While this copy does not bear the clerks file mark, the Clerk of the Hopkins County District Court for the 8th Judicial District has confirmed said motion was filed on December 2, 2008.
[2]Appendix 2 to Colemans petition is a notice of intent which advises the trial court of the pending motion to dismiss for want of prosecution and intent to file a petition for writ of mandamus to compel the trial court to act on said motion. The Clerk of the Hopkins County District Court for the 8th Judicial District has confirmed said notice of intent was filed on December 15, 2009.