William David Easley v. Tammie Yannette Easley

William David Easley v. Tammie Yannette Easley

IN THE

TENTH COURT OF APPEALS

No. 10-98-123-CV

     WILLIAM DAVID EASLEY,

                                                                              Appellant

     v.

     TAMMIE YANNETTE EASLEY,

                                                                              Appellee

From the 19th District Court

McLennan County, Texas

Trial Court # 92-0871-1

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      William David Easley filed a pro se notice of appeal in this Court on May 14, 1998. See Tex. R. App. P. 26.1(c). The clerk’s record was due on July 13, 1998. It has not been filed because Easley has not paid nor made arrangements to pay the clerk’s fee for preparing the record. Appellate Rule 37.3(b) provides that if an appellant fails to pay or make arrangements to pay the clerk’s fee for preparation of the record, the Court may:

dismiss the appeal for want of prosecution, unless the appellant was entitled to proceed without payments of costs. The court must give the appellant a reasonable opportunity to cure before dismissal.

Id. 37.3(b).

      After liberally construing correspondence from Easley as a request for time to make arrangements to pay the clerk’s fee and granting a thirty-day extension, the fee still has not been paid. We notified Easley that failure to pay for the record by September 25 would result in dismissal. Id. 37.3(b), 42.3, 44.3. Over thirty days have passed since the deadline and no arrangements have been made. Therefore, this appeal is dismissed for want of prosecution. Id. 37.3(b).

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance 

Dismissed for want of prosecution

Opinion delivered and filed November 4, 1998

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MEMORANDUM  Opinion

 

      This appeal concerns sentences for burglary of a habitation.  See Tex. Penal Code Ann. § 30.02(a) (Vernon 2003).  We will affirm.

      Appellant contends that his concurrent sentences of fifteen years’ imprisonment and fines of $5,000 in two convictions for burglary of a habitation constitute unconstitutionally cruel and unusual punishment.  See U.S. Const. amend. VIII.  At trial, the State proved up a third, extraneous, burglary of a habitation.  Appellant had been convicted for possession of marijuana twice and for theft.  Appellant had previously been on community supervision, and it had been

revoked.  Burglary of a habitation is a grave crime of violence that violates the sanctity of the home.  See St. Julian v. State, 874 S.W.2d 669, 671 (Tex. Crim. App. 1994); Richardson v. State, 888 S.W.2d 822, 824 (Tex. Crim. App. 1994); Blankenship v. State, 780 S.W.2d 198, 207 (Tex. Crim. App. 1989) (op. on reh’g); United States v. Guadardo, 40 F.3d 102, 103 (5th Cir. 1994) (interpreting 18 U.S.C. § 16 (2000)).  Appellant’s sentences were not grossly disproportionate to his offenses.  See Holberg v. State, 38 S.W.3d 137, 140-41 (Tex. Crim. App. 2000) (not designated for publication in part); Davis v. State, 119 S.W.3d 359, 363 (Tex. App.—Waco 2003, pet. ref’d); see generally Handy v. State, 46 Tex. Crim. 406, 407-408, 80 S.W. 526, 526-27 (1904) (30-yr. sentence for burglary of a private residence constitutional).  We overrule Appellant’s issue.

      We affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance dissents with a note:  I believe that we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts and our analysis in memorandum opinions.  Jessie filed a motion for new trial claiming his sentence is grossly disproportionate to other similarly situated defendants, and he appeals the denial of that motion.  The majority summarily overrules his issue without a discussion of the evidence he presented (twenty-seven other convictions in Brazos County for similar offenses and testimony from three prosecutors in adjoining counties) or the argument made on appeal.  The majority’s rationale is the burglary is a “grave crime,” which we all know, and that a 1904 conviction resulted in a 30-year sentence.  Furthermore, the majority neither cites nor discusses our decision in Dunn v. State, 997 S.W.2d 885 (Tex. App.—Waco 1999, pet. ref’d), which Jessie relies on as the basis for his complaint.  Because the majority refuses to analyze the issue, I dissent).

Affirmed

Opinion delivered and filed October 20, 2004

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