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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00235-CR
______________________________
REBECCA WORTHY CLEVELAND, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 349th Judicial District Court
Houston County, Texas
Trial Court No. 09CR-042
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Rebecca Worthy Cleveland has appealed from her conviction on her open plea of guilty to the offense of aggravated robbery. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). The court sentenced Cleveland to fifty years’ imprisonment. See Tex. Penal Code Ann. § 12.32 (Vernon Supp. 2009).
On appeal,[1] Cleveland contends, in a single point of error, that the punishment assessed is disproportionate to her crime. Cleveland’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.[2] 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, Cleveland’s sentence falls within the applicable range of not more than ninety-nine years or less than five years and a fine of up to $10,000.00. See Tex. Penal Code Ann. § 12.32.
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 Cleveland’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.3d 655, 664–65 (Tex. App.––Texarkana 1995, pet. ref’d). Without such evidence, the record before us does not support Cleveland’s claim of demonstrable error. Cf. Jackson, 989 S.W.2d at 846 (“[T]here 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: May 4, 2010
Date Decided: May 7, 2010
Do Not Publish
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]The trial court did not conduct a hearing on Cleveland’s motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8.
> Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990) (orig. proceeding). The relator must establish that the trial court could reasonably have reached only one decision. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). Review of a trial court’s determination of legal principles controlling its ruling applies a much less deferential standard, since the trial court has no discretion in determining what the law is or applying the law to those facts. In re Jorden, 249 S.W.3d 416, 424 (Tex. 2008) (orig. proceeding); Walker, 827 S.W.2d at 840.
Accessibility of Confidential DFPS Records Through Court Order
In her first point of error, Agers argues that MRMC is not in the class of persons or entities to whom the confidential DFPS records may be disclosed. She argues that a private entity, such as MRMC, is not listed under 40 Tex. Admin. Code § 700.203 as an entity to whom the confidential DFPS records may be disclosed; ergo, Agers argues, the trial court may not order the records to be disclosed to MRMC. We disagree.
Agers mischaracterizes the purpose and exclusivity of Section 700.203. It contains a list of persons and entities to whom confidential records (such as the DFPS records at issue in this case) may be disclosed without the intervention of a court order. 40 Tex. Admin. Code §§ 700.203(a), 700.205(e) (2010). Section 700.205(e) of the Administrative Code provides that “individuals not otherwise authorized to obtain records . . . must obtain a court order” ordering the disclosure of the records “using the procedures outlined in § 261.201(b).” 40 Tex. Admin. Code § 700.205(e). In this case, MRMC sought, and the trial court properly considered, the disclosure of the DFPS records through the Section 261.201(b) procedures.
The Trial Court Could Have Reasonably Determined that the Production of the DFPS Record is Essential to the Administration of Justice
Agers also contends that the DFPS records are not essential to the administration of justice, and therefore do not meet the requirements of Section 261.201 of the Texas Family Code. We disagree.
Section 261.201(b) of the Texas Family Code provides, in relevant part, that a court may order the disclosure of confidential information if:
(3) after hearing and an in camera review of the requested information, the court determines that the disclosure of the requested information is:
(A) essential to the administration of justice;[3] and
(B) not likely to endanger the life or safety of:
(i) a child who is the subject of the report of alleged or suspected abuse or neglect;
(ii) a person who makes a report of alleged or suspected abuse or neglect; or
(iii) any other person who participates in an investigation of reported abuse or neglect or who provides care for the child.[4]
Tex. Fam. Code Ann. § 261.201(b).
Here, Agers argues that the DFPS documents are not essential for the administration of justice and that they are irrelevant unless they pertain to the two-week period during which Cole suffered his brain injury. Agers contends that MRMC’s nurses’ failure to recognize and treat Cole’s elevated and rising bilirubin levels proximately caused, in whole or in part, his brain injury. MRMC contends that Cole’s condition was completely or partially brought about by Agers’s failure to receive proper pre-natal and post-natal care for Cole. It also asserts that the DFPS records are relevant and essential to their position.
In light of the parties’ relative positions, Cole’s condition, its cause(s), and any factors contributing thereto go to the very heart of this case. The Texas Supreme Court noted in Walker that a denial of discovery going to the heart of a party’s case may render an appellate remedy inadequate. 827 S.W.2d at 843. Having reviewed the briefs, the record, and the DFPS records in dispute, we find that the trial court could have reasonably determined that the disclosure of the DFPS records is relevant to Cole’s condition, pre-natal, and/or post-natal care, and that their disclosure was essential to the administration of justice.[5] With the required due deference to the trial court’s inherent factual determinations and restrictions on the disclosure of the confidential information contained in the DFPS records, we decline to cite specific facts and find that the trial court did not abuse its discretion in ordering the disclosure of the DFPS records.
Need for Specific Findings in Order Issued Pursuant to Texas Family Code Section 261.201
Agers contends that the entry of such an order was permissible only after MRMC had introduced evidence that release of the DFPS records was unlikely to endanger the life or safety of the child, a person reporting abuse, or the life or safety of others participating in the abuse allegation. She also maintains that the order itself was required to include specific findings to that effect. We disagree.
If, after a hearing and in camera review of the requested documents, the court determines that the disclosure of the information is essential to the administration of justice and “not likely to endanger the life or safety of” the child, a person reporting alleged abuse, or any person participating in the investigation, the court may order the documents to be disclosed. Tex. Fam. Code Ann. § 261.201(b). The statute does not require the trial court to make specific findings either that the disclosure of the records is “essential to the administration of justice” or that disclosure is “not likely to endanger” the persons listed in the statute. See id. Absent such a specific requirement, we will not impose one. A trial court is presumed to know the law[6] and a recitation of what the law requires the trial court to consider in exercising its discretion is not necessary. Further, there is no evidence in the record that the disclosure of the DFPS records would endanger the life or safety of the child, a person reporting alleged abuse, or any person involved in the abuse investigation.
We deny the petition for writ of mandamus.
Bailey C. Moseley
Justice
Date Submitted: May 4, 2010
Date Decided: May 5, 2010
[1]Relators renewed their motion for a protective order precluding the production of the DFPS materials.
[2]About that time, the trial judge, the Honorable Bonnie Leggat Hagan, retired and was succeeded by the Honorable William Todd Hughey.
[3]This term is not defined by statute.
[4]Section 261.201(b) also requires that a motion has been filed with the court requesting the release of the information and a notice of hearing has been served on the investigating agency and all other interested parties. Here, the parties do not dispute that a motion was filed seeking the release of the DFPS records, that a proper notice was given to the investigating agency and all interested parties, and that a hearing was held to determine whether or not, and to what extent, the DFPS records should be disclosed.
[5]This opinion relates to the discoverability of the DFPS records under Section 261.201 of the Texas Family Code and should not be construed as a ruling or opinion regarding the admissibility of any portion of the DFPS records.
[6]Hurst v. Travelers Ins. Co., 353 S.W.2d 60, 64 (Tex. Civ. App.––El Paso 1961, no writ).