Brian Lancaster v. State

 

IN THE

TENTH COURT OF APPEALS

 

Nos. 10-08-00025-CR, 10-08-00026-CR, 10-08-00027-CR, 10-08-00028-CR,

10-08-00029-CR, 10-08-00030-CR, and 10-08-00058-CR

 

Brian Lancaster,

                                                                                    Appellant

 v.

 

The State of Texas,

                                                                                    Appellee

 

 

 


From the 272nd District Court

Brazos County, Texas

Trial Court Nos. 07-01488-CRF-272, 07-01490-CRF-272,

07-03055-CRF-272, 07-03056-CRF-272, 07-03057-CRF-272,

07-3058-CRF-272, and 07-01489-CRF-272

 

ABATEMENT ORDER

 

            Appellant’s brief is overdue, and after notice to appellant’s counsel to file a brief or extension request, none has been filed.  Therefore, we abate these causes to the trial court for a hearing to determine: (1) why a brief has not been filed on appellant’s behalf; (2) whether counsel has abandoned the appeal; (3) whether appellant still desires to proceed with the appeal; and (4) whether appellant desires self-representation.  See Tex. R. App. P. 38.8(b)(3); Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco 2005, order).

            The trial court shall conduct the hearing within 30 days after the date of this order.  The trial court clerk and the court reporter shall file supplemental records within 45 days after the date of this order.  See Fewins, 170 S.W.3d at 296-97.

                                                                                    PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeals abated

Order issued and filed December 17, 2008

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Middle align=center style='text-align:center;line-height: 200%'>Punishment

            In her first issue, Rutledge argues that the trial court’s punishment was cruel and unusual in violation of the Eighth Amendment of the United States Constitution.  In her second issue on appeal, Rutledge argues that the trial court’s punishment violated her right to due process.

Cruel and Unusual Punishment

            The Eight Amendment prohibits cruel and unusual punishment, which includes extreme sentences that are grossly disproportionate to the crime.  Graham v. Florida, --- U.S. ----, 130 S. Ct. 2011, 2021, 176 L. Ed. 2d 825 (2010).          The Supreme Court identified three criteria to be used to evaluate the proportionality of a particular sentence.  Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983); Alvarez v. State, 63 S.W.3d 578, 580-2 (Tex. App.—Fort Worth 2001, no pet.).  They are (1) the gravity of the offense and the harshness of the punishment, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for the same offense in other jurisdictions.  Solem v. Helm, 463 U.S. at 292, 103 S. Ct. at 3011; Alvarez v. State, 63 S.W.3d at 582.  In a proportionality analysis, we first make a threshold comparison of the gravity of the offense against the severity of the sentence.  Alvarez v. State, 63 S.W.3d at 582.  Only if we determine that the sentence is grossly disproportionate to the offense do we consider the remaining Solem factors.  Id.

            Generally, punishment assessed within the statutory limits is not excessive, cruel, or unusual punishment.  Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).  The sentence falls within the applicable punishment range for each offense.  The lesser sentences in Count 1 and 2 are to run concurrently with the sentence in Count 3.  Rutledge was convicted of a first-degree felony in Count 3.  The punishment range is imprisonment for 5 to 99 years or life.  Tex. Health & Safety Code Ann. § 481.112 (d) (Vernon 2010); Tex. Penal Code Ann. § 12.32 (a) (Vernon Supp. 2010).  The trial court assessed punishment 45 years, in the middle of the punishment range.

            Investigator Dickey testified that in over four years with the drug task force, he has only been involved in one “bust” for methamphetamines that recovered a larger quantity of drugs than that possessed by Rutledge.  The record shows that Rutledge both used and sold methamphetamine for several years.  Rutledge had a number of regular customers who purchased methamphetamine from her.  At trial, Rutledge’s attorney asked if she understood that the trial court could “send [her] to the penitentiary for whatever period of time he chooses?”  Rutledge stated that she did understand.  The sentence is not grossly disproportionate to the offense.  The sentence assessed was not cruel and unusual punishment.  We overrule the first issue.

Due Process

            When a defendant waives a jury, the trial judge has discretion to assess the punishment within the range provided by law which he finds appropriate under the circumstances.  Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. 1978).  A trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process.  Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005).  There is no evidence that the trial court predetermined Rutledge’s sentence or refused to consider the entire range of punishment.  The trial court did not abuse its discretion in assessing Rutledge’s sentence within the punishment range.  We overrule the second issue.


Conclusion

            We affirm the trial court’s judgment.

 

 

                                                                        AL SCOGGINS

                                                                        Justice

 

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Affirmed

Opinion delivered and filed May 11, 2011

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[1] Cathy Lynn Rutledge is also known as Cathy Lynn Wilson.