ACCEPTED
12-15-00077-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
8/5/2015 11:40:00 PM
CATHY LUSK
CLERK
NUMBER 12-15-00077-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS TYLER, TEXAS
8/5/2015 11:40:00 PM
CATHY S. LUSK
Clerk
ROXANNE YVETTE DAVIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 241st District Court of Smith County, Texas
Trial Cause Number 241-1149-14
STATE’S BRIEF
ORAL ARGUMENT NOT REQUESTED
D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas
AARON REDIKER
Assistant District Attorney
State Bar of Texas Number 24046692
Smith County Courthouse, 4th Floor
Tyler, Texas 75702
Phone: (903) 590-1720
Fax: (903) 590-1719
Email: arediker@smith-county.com
Table of Contents
Index of Authorities ............................................................................................................ 2
Statement of Facts............................................................................................................... 3
Summary of Argument....................................................................................................... 4
I.ISSUES ONE AND TWO: By not objecting to her sixteen-month sentence for state jail
felony theft as cruel and unusual, appellant failed to preserve any alleged error for
review. ................................................................................................................................... 5
Standard of Review ............................................................................................................. 5
Argument.............................................................................................................................. 6
Certificate of Compliance ................................................................................................ 10
Certificate of Service ........................................................................................................ 10
1
INDEX OF AUTHORITIES
Constitutional Provisions
U.S. CONST. amend. VIII ....................................................................................................... 6
U.S. CONST. amend. XIV ....................................................................................................... 6
Federal Cases
Harmelin v. Michigan, 501 U.S. 957 (1991) ......................................................................... 6
McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992).............................................................. 6
Smallwood v. Scott, 73 F.3d 1343 (5th Cir. 1996) ................................................................ 8
Solem v. Helm, 463 U.S. 277 (1983) ...................................................................................... 5
Texas Cases
Buster v. State, 144 S.W.3d 71 (Tex. App.—Tyler 2004, no pet.) ..................................... 7
Curry v. State, 910 S.W.2d 490 (Tex. Crim. App. 1995) ..................................................... 7
Davis v. State, 119 S.W.3d 359 (Tex. App.—Waco 2003, pet. ref’d) ................................. 7
Davis v. State, 905 S.W.2d 655 (Tex. App.—Texarkana 1995, pet. ref'd) ........................ 5
Jackson v. State, 989 S.W.2d 842 (Tex. App.—Texarkana 1999, no pet.) ........................ 6
Jacobs v. State, 80 S.W.3d 631 (Tex. App.—Tyler 2002, no pet.) .................................. 7, 8
Lackey v. State, 881 S.W.2d 418 (Tex. App.—Dallas 1994, pet. ref’d) .............................. 8
Simmons v. State, 944 S.W.2d 11 (Tex. App.—Tyler 1996, pet. ref’d) ..................... 5, 6, 8
Texas Statutes
Tex. Code Crim. Proc. Ann. art. 1.09 ................................................................................. 6
Tex. Penal Code Ann. § 12.35 ............................................................................................. 7
Tex. Penal Code Ann. § 31.03 ............................................................................................. 7
Texas Rules
Tex. R. App. P. 33.1 ............................................................................................................... 7
2
NUMBER 12-15-00077-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS
TYLER, TEXAS
ROXANNE YVETTE DAVIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 241st District Court of Smith County, Texas
Trial Cause Number 241-1149-14
STATE’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
Comes now the State of Texas, by and through the undersigned Assistant
Criminal District Attorney, respectfully requesting that this Court overrule
appellant’s alleged issues and affirm the judgment of the trial court in the above-
captioned cause.
STATEMENT OF FACTS
Appellant, with her counsel, entered a nonnegotiated plea of guilty to the
offense of state jail felony theft as charged in the indictment (I Rep.’s R. at 4, 13;
3
Clerk’s R. at 1). After accepting appellant’s plea of guilty and hearing evidence on
the issue of punishment, including testimony regarding her extensive criminal
history of more than twenty-three prior convictions1 (II Rep.’s R. at 38), the trial
court sentenced her to confinement for sixteen months in the Texas Department
of Criminal Justice—State Jail Division without a fine (Id. at 76). Appellant raised
no objection to her sentence at the time of formal pronouncement and did not file
a motion for new trial (Id. at 76, 79).
SUMMARY OF ARGUMENT
Appellant forfeited any challenge to her sentence of sixteen months for state
jail felony theft as cruel and unusual by failing to raise an objection in the trial
court. Even had appellant preserved the alleged error, her sentence was not
grossly disproportionate to the offense she committed, especially in light of her
extensive criminal history.
1
During the plea and sentencing hearing, appellant acknowledged that she had eleven prior
felony convictions and twelve prior misdemeanor convictions, many of which were for theft
offenses (II Rep.’s R. at 38).
4
I. ISSUES ONE AND TWO: By not objecting to her sixteen-month sentence for state
jail felony theft as cruel and unusual, appellant failed to preserve any alleged error
for review.
STANDARD OF REVIEW
“The legislature is vested with the power to define crimes and prescribe
penalties.” Contreras v. State, 369 S.W.3d 689, 690 (Tex. App.—Tyler 2012, no pet.)
(mem. op.) (citing Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet.
ref'd)). “Courts have repeatedly held that punishment which falls within the limits
prescribed by a valid statute is not excessive, cruel, or unusual.” Simmons v. State,
944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d). Under the Solem test, “the
proportionality of a sentence is evaluated by considering (1) the gravity of the
offense and the harshness of the penalty, (2) the sentences imposed on other
criminals in the same jurisdiction, and (3) the sentences imposed for commission
of the same crime in other jurisdictions.” Contreras, 369 S.W.3d at 690 (citing Solem
v. Helm, 463 U.S. 277, 292 (1983)). “The application of the Solem test has been
modified by Texas courts and the Fifth Circuit Court of Appeals in light of the
Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115
5
L. Ed. 2d 836 (1991) to require a threshold determination that the sentence is
grossly disproportionate to the crime before addressing the remaining elements.”
Id. (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Jackson v. State, 989
S.W.2d 842, 845-46 (Tex. App.—Texarkana 1999, no pet.)).
ARGUMENT
In her two alleged issues, appellant argues that her sixteen-month sentence for
state jail felony theft constitutes cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments to the United States Constitution and article
1.09 of the Texas Code of Criminal Procedure 2 (Appellant’s Br. 5). U.S. CONST.
amends. VIII, XIV; Tex. Code Crim. Proc. Ann. art. 1.09 (West 2014). However,
appellant did not object to her sentence at trial as cruel and unusual or raise the
issue in a motion for new trial (II Rep.’s R. at 76, 79). As appellant did not timely
object to her sentence as constituting cruel or unusual punishment, she failed to
preserve any alleged error for review, and her first and second issues should be
2
As appellant cites no authority requiring this Court to analyze her claims differently under
federal or Texas law, they will be addressed together. Simmons, 944 S.W.2d at 14.
6
overruled. Tex. R. App. P. 33.1(a); Contreras, 369 S.W.3d at 690 (citing Curry v. State,
910 S.W.2d 490, 497 (Tex. Crim. App. 1995)).
Even if appellant had not forfeited her claim, her sixteen-month sentence is not
grossly disproportionate to the offense to which she pleaded guilty, stealing a
purse valued at less than $ 1,500 where appellant had been previously convicted
two or more times of theft, a state jail felony (Clerk’s R. at 1). See Tex. Penal Code
Ann. § 31.03(e)(4)(D) (West 2014). Appellant’s sentence of confinement for sixteen
months in the Texas Department of Criminal Justice—State Jail Division without a
fine was well within the range set for forth by the legislature for a state jail felony,
and therefore, “the punishment is not prohibited as cruel, unusual or excessive per
se.” Jacobs v. State, 80 S.W.3d 631, 633 (Tex. App.—Tyler 2002, no pet.); Tex. Penal
Code Ann. § 12.35(a), (b) (West 2014). “In determining whether a sentence is
grossly disproportionate, we consider not only the present offense but also an
accused's criminal history.” Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004,
no pet.) (citing Davis v. State, 119 S.W.3d 359, 363 (Tex. App.—Waco 2003, pet. ref’d)).
Appellant’s punishment assessed falls well within the permissible range, and when
7
viewed in light of her extensive criminal history of twenty-three prior convictions,
is not grossly disproportionate to the offense she committed. See Smallwood v. Scott,
73 F.3d 1343, 1348 (5th Cir. 1996) (fifty-year sentence under recidivist statute for
stealing $27.64 in meat not grossly disproportionate based on defendant’s criminal
history); Lackey v. State, 881 S.W.2d 418, 420 (Tex. App.—Dallas 1994, pet. ref’d)
(sentence of thirty-five years under recidivist statute for shoplifting clothing
valued at $145 not cruel and unusual punishment); Simmons, 944 S.W.2d at 15
(sentence of fifty years’ confinement and $5,000 for delivery of cocaine not grossly
disproportionate considering the defendant’s criminal history). Even assuming
that the threshold test for gross disproportionality was met, the remaining
elements of the Solem cannot be satisfied: “[t]here is no evidence in the appellate
record reflecting the sentences imposed on criminals in Texas or other
jurisdictions who committed a similar offense; therefore, we may not engage in a
comparative evaluation.” Jacobs, 80 S.W.3d at 633 (citing Simmons, 944 S.W.2d at 15).
8
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court
overrule appellant’s alleged issues and affirm the judgment of the 241st District
Court of Smith County, Texas, in the above-captioned cause.
Respectfully submitted,
D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas
/s/ Aaron Rediker
Aaron Rediker
Assistant District Attorney
SBOT #: 24046692
100 North Broadway, 4th Floor
Tyler, Texas 75702
Office: (903) 590-1720
Fax: (903) 590-1719 (fax)
arediker@smith-county.com
9
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
attorney certifies that the word count for this document is 1,082 words as
calculated by Microsoft Word 2013.
/s/ Aaron Rediker
Aaron Rediker
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 5th day of August 2015, the State’s
Brief in the above-numbered cause has been electronically filed, and a legible copy
of the State's Brief has been sent by email to J. Brandt Thorson, attorney for
appellant, at jbt@jbtfirm.com.
/s/ Aaron Rediker
Aaron Rediker
10