United States Court of Appeals,
Fifth Circuit.
No. 94-20642.
Simon SMALLWOOD, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Jan. 23, 1996.
Appeal from the United States District Court for the Southern
District of Texas.
Before GARWOOD, DUHÉ and PARKER, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellant Simon Smallwood (Smallwood) appeals the
district court's grant of respondent-appellee's motion for summary
judgment and dismissal of his habeas corpus petition under 28
U.S.C. Section 2254. We affirm.
Facts and Procedural Background
Smallwood was arrested exiting the Fiesta Mart grocery store
at 5800 Lyons Avenue in Houston, Texas with three unpaid for
packages of meat concealed on his person. This property had a
total value of $27.64, and Smallwood was charged with theft of
property under the value of $750.
The indictment contained two paragraphs also charging that
Smallwood had been convicted of theft on two prior occasions;
these convictions upgraded the offense of conviction—otherwise a
class B misdemeanor—to a third degree felony. Tex.Penal Code Ann.
1
§ 31.03(e)(4)(E).1
The indictment contained two additional paragraphs charging
that Smallwood had been previously convicted of two felonies,
burglary of a building and unlawful possession of a controlled
substance. Accordingly, the Texas habitual offender statute was
invoked, and Smallwood's sentencing range increased to 25 to 99
years, or life. Tex.Penal Code Ann. § 12.42(d).
At trial, the officer from the Loss Prevention Office who
apprehended Smallwood testified that he first observed Smallwood on
the store's surveillance camera picking up meat in the store's meat
department. He subsequently witnessed Smallwood appear in an
express check-out lane, where Smallwood purchased a container of
juice and a loaf of bread. This officer, assisted by a colleague
from the Loss Prevention Office, stopped Smallwood as he exited the
store. Asked about Smallwood's reaction to this initial detention,
the officer testified that Smallwood said, "I know what it's about.
I'm not going to fight you. I just needed this." A search of
Smallwood produced a total of three packages of meat which
Smallwood had secreted in his pants, partially hiding the bulges
with his untucked shirt. On June 4, 1990, the jury found Smallwood
guilty of the charge as a felony by virtue of the two prior theft
1
This provision was originally contained in subsection
(d)(4)(C) of Section 31.03; it was redesignated as (e)(4)(C) in
1985 and again redesignated as (e)(4)(E) in 1989. See § 31.03,
Historical and Statutory Notes (West 1994). In 1993, this
provision was modified somewhat to increase the value of property
appropriated in the third theft from (less than) $750 to (less
than) $1,500; the subsection was redesignated (in 1993) as
(e)(4)(D).
2
convictions, and at the subsequent punishment stage, after
receiving evidence that he had nine prior felony convictions,
sentenced Smallwood to 50 years imprisonment.
On direct appeal, the judgment of the trial court was
affirmed2, and discretionary review was subsequently refused by the
Texas Court of Criminal Appeals on May 20, 1992. Smallwood's writ
of habeas corpus was denied by the Texas Court of Criminal Appeals
on September 8, 1993, and Smallwood then filed the instant petition
for writ of habeas corpus in the district court below (in forma
pauperis ) on September 27, 1993. The district court granted
respondent's motion for summary judgment on August 16, 1994,
concurrently ordering the dismissal of Smallwood's petition.
Smallwood now brings this appeal.3
2
The Court of Appeals for the First District of Texas
affirmed Smallwood's conviction and sentence after considering
three points of error: (1) whether the simultaneous application
of Tex.Penal Code Ann. Sections 31.03(e)(4)(E) and 12.42(d)
results in "double enhancement", placing Smallwood in double
jeopardy in violation of the Fifth, Eighth and Fourteenth
Amendments; (2) whether Smallwood's punishment constituted cruel
and unusual punishment in violation of the Fifth and Eighth
Amendments; and (3) whether Section 31.03(e)(4)(E) is
unconstitutional, violating Smallwood's rights to equal
protection and due process of law. Smallwood v. State, 827
S.W.2d 34 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd). One
justice on the Court of Appeals, relying on Solem v. Helm, 463
U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) dissented from
the holding that Smallwood's sentence did not constitute cruel
and unusual punishment. Smallwood at 38-40. The Court of
Appeals did not address the issue of whether constitutional error
occurred when the trial court refused to give a limiting
instruction in the jury charge regarding the jury's consideration
of evidence of Smallwood's prior theft convictions.
3
We previously granted Smallwood's motion for certificate of
probable cause, the district court having earlier denied such
relief.
3
Discussion
Smallwood presents four points of error. We discuss these
seriatim.
Smallwood's first point is that the district court erred in
its application of the Supreme Court's decision in Rummel v.
Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), to
Smallwood's claim that his sentence of fifty years for misdemeanor
theft—made a felony by virtue of being a third theft conviction,
and enhanced pursuant to Texas' habitual offender statute—is
grossly disproportionate to his crime in violation of the Eighth
Amendment. Smallwood contends that the district court should
instead have applied the guidelines for reviewing Eighth Amendment
claims set out in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77
L.Ed.2d 637 (1983).4 We disagree.
In Rummel, the Supreme Court held that a sentence of life
imprisonment with an opportunity for parole after twelve years did
not constitute cruel and unusual punishment in a situation where
the defendant, convicted of obtaining $120.75 by false pretenses,
had two prior felony convictions. In so holding, the Court
emphasized a point clearly relevant to Smallwood's contentions of
disproportionality: recidivist statutes punish not only the
offense of conviction but also the "propensities" of the defendant
demonstrated by his prior convictions for other crimes. Id. at
4
Solem was overruled to the extent that it found in the
Eighth Amendment a guarantee of proportionality. Harmelin v.
Michigan, 501 U.S. 957, 965-66, 111 S.Ct. 2680, 2686, 115 L.Ed.2d
836 (1991).
4
283-285, 100 S.Ct. at 1144-1145; see also McGruder v. Puckett, 954
F.2d 313, 316 & n. 3 (5th Cir.), cert. denied, --- U.S. ----, 113
S.Ct. 146, 121 L.Ed.2d 98 (1992).
In Solem, the Supreme Court held that a sentence of life
imprisonment without the possibility of parole—imposed against a
defendant convicted of uttering a worthless check in the amount of
$100—violated the Eighth Amendment's prohibition against cruel and
unusual punishment. The defendant's sentence had been enhanced
pursuant to a South Dakota recidivist statute. 463 U.S. at 296-97,
103 S.Ct. at 3013. In reaching its decision, the Supreme Court
enumerated several criteria to be considered in determining whether
a sentence is unconstitutionally disproportionate to the offense:
(1) the gravity of the offense relative to 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 offense in other jurisdictions. Id. at 292-94, 103 S.Ct. at
3011. The Court distinguished Rummel on its facts and stated that
Rummel was controlling only in a similar factual situation. Id. at
296-297, 300-305 & n. 32, at 3013, 3015-3017 & n. 32.
This Court has noted that Rummel survived Solem, and controls
in cases with factual situations not "clearly distinguishable" from
Rummel. Burt v. Puckett, 933 F.2d 350, 352 (5th Cir.1991). We
also recently observed that the Supreme Court's opinion in Solem
must be viewed in light of Harmelin v. Michigan, supra, which
upheld the imposition of a sentence of life imprisonment without
possibility of parole against a defendant convicted of possessing
5
more than 650 grams of cocaine. McGruder v. Puckett, supra, 954
F.2d at 315. In light of Harmelin, it appears that Solem is to
apply only when a threshold comparison of the crime committed to
the sentence imposed leads to an inference of "gross
disproportionality." 501 U.S. at 1005, 111 S.Ct. at 2707. Based
on Harmelin, we concluded that "[o]nly if we infer that the
sentence is grossly disproportionate to the offense will we then
consider the remaining factors of the Solem test ..." McGruder,
954 F.2d at 316.
This Court has grappled with this threshold determination of
gross disproportionality on at least two occasions. In McGruder,
we noted that the defendant had a record of prior convictions which
included two separate convictions for armed robbery. Considering
that McGruder's prior convictions included two crimes of violence
per se, and that Rummel's predicate offenses were
"non-serious"—passing a bad check and passing a forged check—and
further considering that Rummel nevertheless received a mandatory
life sentence with a possibility of parole, this Court concluded
that "[t]here can be no argument, in the light of Rummel, that
McGruder's sentence is disproportionate, much less grossly
disproportionate, to his offense.... Rummel's record of offenses
was much less grave than McGruder's." Id. at 317.
We applied a similar analysis in Duhr v. Collins, No. 93-8169,
20 F.3d 469 (5th Cir. Mar. 29, 1994) (unpublished). In Duhr, the
indictment charged the defendant with misdemeanor DWI and alleged
three prior DWI convictions, the charged misdemeanor DWI offense
6
accordingly becoming a felony. No. 93-8169 at 2. Furthermore,
Duhr's prior convictions for possession of marihuana, theft by
taking and three separate check thefts combined to expose him to a
maximum enhanced sentence of 99 years, with possibility of parole;
the jury sentenced Duhr to 99 years. Id.5 In deciding to follow
the Supreme Court's reasoning in Rummel, we concluded that:
"As in Rummel, none of Duhr's convictions were for crimes of
violence. However, as the district court observed, felony DWI
is arguably a more serious crime than the theft conviction at
issue in Rummel due to the obvious threat drunk drivers pose
to other motorists and pedestrians." Id. at 9.
McGruder and Duhr may provide a litmus test of sorts for
determining whether a sentence is grossly disproportionate to an
offense. The present case, however, involves a situation in which
the gravity of Smallwood's prior convictions and offense of
conviction do not plainly "exceed" the gravity of the corresponding
offenses in Rummel. Rummel's conviction for obtaining $120.75 by
false pretenses was enhanced based on his prior felony convictions
for (1) fraudulently using a credit card to obtain $80 worth of
5
Without elaboration, this Court thereby clarified in Duhr
that Rummel shall apply to situations in which a defendant's
offense of conviction is "doubly enhanced", once from a
misdemeanor to a felony, and again pursuant to a recidivist
statute. It should also be noted that the Texas Court of
Criminal Appeals has held that theft offenses may be doubly
enhanced by the combined application of Sections 31.03(e)(4)(E)
and 12.42(d) of the Texas Penal Code, so long as the prior felony
convictions used to enhance punishment are for offenses other
than theft. Foster v. State, 603 S.W.2d 879, 880
(Tex.Crim.App.1980); Rawlings v. State, 602 S.W.2d 268, 270
(Tex.Crim.App.1980). In Gant v. State, 606 S.W.2d 867, 871 n. 9
(Tex.Crim.App.1980), the Texas Court of Criminal Appeals further
observed that the application of Section 12.42(d) in this context
did not constitute an enhancement for punishment purposes.
Rather, the two or more prior theft convictions are elements of
felony theft, not enhancements.
7
goods and services and (2) passing a forged check in the amount of
$28.36. 445 U.S. at 263, 100 S.Ct. at 1133. Smallwood's felony
conviction for theft of goods valued at $27.64, after two prior
theft convictions, was enhanced based on his prior felony
convictions for burglary of a building and unlawful possession of
a controlled substance. The district court rightly considered
Rummel's conviction for obtaining $120 by false pretenses and
Smallwood's theft of $27.64 worth of goods to be at least "of
similar gravity and thus not distinguishable for the purposes of
Eighth Amendment analysis." Furthermore, Smallwood's prior
non-theft convictions could likewise be characterized as comparable
in magnitude to Rummel's. Therefore, the present case does not
lend itself to the threshold finding that this Court made in
McGruder and Duhr.
This distinction aside, however, the rationale supporting our
conclusions in McGruder and Duhr applies equally to the present
situation. If Rummel's sentence was not grossly disproportionate
to his offense, the same must be true of Smallwood's sentence. The
similarities between the convictions at issue in Rummel and at
present are evident, and no compelling argument has been made that
Smallwood's convictions are less grave than the "yardstick"
convictions at issue in Rummel. Additionally, we note the district
court's observation that Smallwood's sentence, like Rummel's,
allows for the possibility of parole in approximately the same
time. In upholding Duhr's ninety-nine year sentence, this Court
emphasized the same ameliorative fact. No. 93-8169 at 9. Within
8
the analytical framework constructed in McGruder and Duhr,
therefore, the present factual situation is not "clearly
distinguishable" from Rummel, and an analysis of Smallwood's case
under the criteria enumerated in Solem is not warranted.
The second point of error presented by Smallwood in this
appeal is that he was denied due process and the right to trial by
an impartial jury because the jury charge put Smallwood's two prior
theft convictions before the jury and the trial court overruled
Smallwood's objection that a limiting instruction should have
accompanied this charge.
In Thomas v. Estelle, 587 F.2d 695 (5th Cir.1979), this Court
emphasized that "federal courts are not rule-making bodies to
promulgate state rules of criminal procedure. On habeas we are
concerned with violations of state procedural rules only if the
trial is by them rendered fundamentally unfair." Id. at 698. By
including Smallwood's prior theft convictions in the body of the
main jury charge, the state trial court did not violate any Texas
procedural rule. On the contrary, the Texas Court of Criminal
Appeals has held that, in instructing the jury in a criminal trial
for an offense charged pursuant to Tex.Penal Code Ann. Section
31.03(e)(4)(E), "the prior theft offenses, as jurisdictional
elements of the offense alleged, must be included in the body of
the main charge before the jury is authorized to make a general
finding of guilt ..." Gant v. State, 606 S.W.2d 867, 871
9
(Tex.Crim.App.1980).6 Therefore, the trial court properly included
the two prior theft convictions in the jury charge.7
The remaining issue is whether constitutional error occurred
when the trial court overruled Smallwood's objections and refused
to instruct the jury that it should not consider Smallwood's prior
convictions as evidence of his guilt of the theft for which he was
being tried. In Spencer v. Texas, the United States Supreme Court
rejected a claim that Texas' use of prior convictions in this
context was "so egregiously unfair upon the issue of guilt or
innocence as to offend the provisions of the Fourteenth Amendment
..." 385 U.S. 554, 559, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967).
The Court in Spencer addressed a situation in which a limiting
instruction had been given by the trial court, directing the jury
not to consider the prior convictions in passing upon the issue of
guilt or innocence. 385 U.S. at 556-58, 87 S.Ct. at 650.8 The
6
Tex.Penal Code Ann. Section 31.03(e)(4)(E) codifies the
offense of theft of a felony grade and vests the state district
courts with jurisdiction. The elements of this upgraded theft
offense are the ordinary elements comprising the theft offense of
conviction as well as two prior convictions of any grade of
theft. Gant, 606 S.W.2d at 871 (citing Diamond v. State, 530
S.W.2d 586 (Tex.Crim.App.1975)).
7
No evidence of any prior offenses other than the two prior
theft offenses alleged to make the instant theft a felony was
before the jury before the punishment stage; nor were the
habitual offender prior offense allegations read to the jury
before the punishment stage.
8
In Spencer, the Supreme Court noted that its ruling on the
constitutional issue before it was limited to the
procedures—involving the submission of prior convictions to the
jury—embodied in Vernon's Ann.Tex.Code Crim.Proc. Art. 642
(1941). The Court recognized that Texas had just passed Vernon's
Ann.Tex.Code Crim.Proc. Art. 36.01 (effective Jan. 1, 1966), and
clarified that this new statute was not before the Court. Id.
10
Court afforded some insight, however, into its position regarding
the utility, and perhaps even necessity, of limiting instructions
in this context when it remarked:
"To say the United States Constitution is infringed simply
because this type of evidence may be prejudicial and limiting
instructions inadequate to vitiate prejudicial effects, would
make inroads into this entire complex code of state criminal
evidentiary law, and would threaten other large areas of trial
jurisprudence." Id. at 562, 87 S.Ct. at 653.
In Thomas v. Estelle, supra, this Court confronted a situation
in which a limiting instruction had not been given in this context,
and concluded that the absence of such a limiting instruction
precluded the application of Spencer. 587 F.2d at 698. In Thomas,
the district court had granted habeas relief to the petitioner
because enhancement paragraphs containing evidence of petitioner's
two prior felony convictions were read to the jury at the outset of
the guilt-innocence portion of the petitioner's bifurcated trial,
and the court did not give a limiting instruction: "the lower
court apparently concluded that the lack of a limiting instruction
allowed the jury to use this enhancement evidence to prejudice
petitioner as one with criminal propensities." Id. This Court,
however, did not reach the issue whether constitutional error
resulted from the admission of prior conviction enhancement
evidence without a limiting instruction because the petitioner in
Thomas waived his right to raise this issue by failing to object or
to request a limiting instruction at trial. Id. We nevertheless
385 U.S. at 569 n. 2, 87 S.Ct. at 650 n. 2. When Spencer was
tried Texas did not bifurcate trials into guilt-innocence and
punishment stages, and habitual offender allegations in the
indictment were read to the jury.
11
observed that, "While we may think it wiser that enhancement
paragraphs never be read in the separate guilt proceeding, as Texas
law now requires, we cannot say that due process is denied if the
paragraphs are read and followed by a limiting instruction." Id.
In the present case, Smallwood's counsel did timely object to
opposing counsel's reference—in opening statement—to Smallwood's
prior theft convictions and, subsequently, to the court's inclusion
of Smallwood's two prior theft offenses in the jury charge. Before
submission of the charge to the jury, counsel for Smallwood urged
that the following instruction be read to the jury:
"You are instructed that certain evidence was admitted before
you in regard to the defendant's having been charged and
convicted of an offense or offenses other than the one for
which he is now on trial. Such evidence cannot be considered
by you against the defendant as any evidence of guilt in this
case. Said evidence was admitted before you for the purpose
of aiding you, if it does aide you, in passing upon the weight
you will give his testimony and you will not consider the same
for any other purpose."
The trial court overruled Smallwood's objections and refused to
give this requested limiting instruction.
We decline, however, to reach the issue of whether the state
trial court's actions in overruling the objections and refusing to
give this requested limiting instruction constituted constitutional
error because, even if the trial court did commit constitutional
error, this Court clarified in Thomas that such error must have
rendered the trial fundamentally unfair in order to afford a basis
for relief under section 2254. 587 F.2d at 698. Applying this
precept to a claim that a state court's admission of hearsay
evidence violated the defendant's rights under the Confrontation
12
Clause, this Court noted that "federal habeas corpus relief will
not be granted unless the error "had substantial and injurious
effect or influence in determining the jury's verdict.' "
Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir.) (quoting
Brecht v. Abrahamson, 507 U.S. 619, ----, 113 S.Ct. 1710, 1714, 123
L.Ed.2d 353 (1993)), cert. denied, --- U.S. ----, 114 S.Ct. 637,
126 L.Ed.2d 596 (1993). In the present case, Smallwood was
apprehended leaving a Fiesta Mart grocery store with packages of
meat, which he had not paid for, concealed on his person. The
officer from the Loss Prevention Office who apprehended Smallwood
just outside the door of the store testified that Smallwood said,
"I know what it's about. I'm not going to fight you. I just
needed this." As we noted in Thomas, "The danger inherent in the
admission of prior convictions is that juries may convict a
defendant because he is a "bad man' rather than because evidence of
the crime of which he is charged has proved him guilty." 587 F.2d
at 698 (citing Michelson v. United States, 335 U.S. 469, 475-76, 69
S.Ct. 213, 218-219, 93 L.Ed. 168 (1948)). In the present case, the
state trial court's actions in overruling Smallwood's objections
and refusing to give the requested limiting instruction had no
substantial and injurious effect or influence on the jury's
verdict; the evidence of Smallwood's guilt is overwhelming.
We now turn to Smallwood's third point of error, which
asserts that the simultaneous application of Tex.Penal Code Ann.
Sections 31.03(e)(4)(E) and 12.42(d) constitutes double enhancement
in violation of the Double Jeopardy Clause of the Fifth Amendment.
13
In determining whether the imposition of multiple punishments in a
single proceeding violates the Double Jeopardy Clause, it is
necessary to ascertain whether the legislative branch intended the
punishment imposed. Missouri v. Hunter, 459 U.S. 359, 365-369, 103
S.Ct. 673, 678-679, 74 L.Ed.2d 535 (1983). "The legislature may
impose whatever punishments it sees fit for any combination of
crimes subject only to the limitations of the eighth amendment."
Davis v. Herring, 800 F.2d 513, 516 (5th Cir.1986).
Smallwood's initial offense of conviction, a class B
misdemeanor under Texas law, was made a felony grade offense
pursuant to Tex.Penal Code Ann. Section 31.03(e)(4)(E). This in
turn triggered the operation of Tex.Penal Code Ann. Section
12.42(d), the Texas habitual offender enhancement provision.
Smallwood argues that Section 31.03(e)(4)(E) is a "special and
specific" enhancement statute that was intended to apply to the
exclusion of any other habitual offender provision. He contends
that it is not at all clear that the state legislature intended for
these two enhancement statutes to be applied in combination.
To the contrary, the Texas Court of Criminal Appeals has held
that the Texas legislature did intend for Sections 31.03(e)(4)(E)
and 12.42(d) to be applied in conjunction. See Rawlings v. State,
602 S.W.2d 268, 269-271 (Tex.Crim.App.1980); Foster v. State, 603
S.W.2d 879, 880-881 (Tex.Crim.App.1980). Accordingly, this Court
is bound to accept the Texas courts' construction of these state
14
statutes. Missouri, 459 U.S. at 367-69, 103 S.Ct. at 679.9
Moreover, the constitutionality of enhancement statutes such as
Section 12.42(d) has been sustained against contentions that they
violate "constitutional strictures dealing with double jeopardy, ex
post facto laws, cruel and unusual punishment, due process, equal
protection, and privileges and immunities." Spencer, 385 U.S. 554,
560, 87 S.Ct. 648, 651. The "double enhancement" of Smallwood's
offense did not, therefore, violate the Double Jeopardy Clause.
The fourth and final point of error presented by Smallwood is
that Tex.Penal Code Ann. Section 31.03(e)(4)(E) is unconstitutional
in that: (1) it denies defendants due process and equal
protection; (2) it is applied discriminatorily and
disproportionately to blacks and older defendants; and (3) it is
ambiguous and overbroad. The first two of these claims can be
considered together, as Smallwood's contention is that Section
31.03(e)(4)(E) denies equal protection in that it is applied
discriminatorily and disproportionately to blacks, older defendants
and other minorities, such as Mexican-Americans. In support of
this claim, Smallwood states that he knows two other prisoners
sentenced under the above statute, and that both of these prisoners
are black. He concedes that his incarceration and insufficient
funds have precluded "a survey and proper research to prove his
point."
9
Even where cumulative punishments for the same offense are
authorized by the legislature, the Double Jeopardy Clause is not
offended. See United States v. McCarty, 36 F.3d 1349, 1361 (5th
Cir.1994) (citing Missouri, 459 U.S. at 365-67, 103 S.Ct. at
678).
15
In Ross v. Estelle, 694 F.2d 1008 (5th Cir.1983), this Court
concluded that "a court cannot consider a habeas petitioner's bald
assertions on a critical issue in his pro se petition ... mere
conclusory allegations do not raise a constitutional issue in a
habeas proceeding." Id. at 1011-1012. Smallwood's equal
protection allegations do not constitute the kind of evidence
necessary to raise a fact issue sufficient to warrant an
evidentiary hearing. In Wicker v. McCotter, 798 F.2d 155 (5th
Cir.1986), this Court recognized that, to raise a fact issue
warranting an evidentiary hearing on an equal protection claim, "a
statistical proffer must be "so strong that the results would
permit no other inference but that they are the product of racially
discriminatory intent or purpose.' " Id. at 157 (citations
omitted). Smallwood not only does not meet this test, he has not
alleged any facts which would even give rise to any suspicion of a
reasonable possibility that that could be met.
Smallwood additionally contends that Section 31.03(e)(4)(E)
denies equal protection because theft is the only offense of moral
turpitude which includes a provision for enhancing a third offense
misdemeanor to a felony. In support of this contention, he notes
that the theft of services statute, Tex.Penal Code Ann. Section
31.04, contains no comparable provision.
When neither a fundamental right nor a suspect classification
is implicated, a legislative classification is subject to review
under the rational basis test to determine if the classification
rationally promotes a legitimate governmental objective. Brennan
16
v. Stewart, 834 F.2d 1248, 1257 (5th Cir.1988). The classification
of "theft offenders" does not implicate a suspect class or impinge
upon a fundamental right. Thus, the classification of theft
offenders pursuant to Section 31.03(e)(4)(E) is subject to rational
basis review. There has been no argument made, nor is there any
reason to conclude, that the Texas legislature's decision to punish
repeat theft offenders in this manner is not rationally related to
a legitimate governmental objective. "The legislature has the
authority to define different offenses and to provide different
penalties for them." Perkins v. Cabana, 794 F.2d 168, 169 (5th
Cir.), cert. denied, 479 U.S. 936, 107 S.Ct. 414, 93 L.Ed.2d 366
(1986).
Smallwood's final equal protection claim challenges the
alleged practice by which the decision—left to the discretion of
the prosecutor—to apply these two enhancement provisions together
is made only after a defendant refuses a plea bargain. It is clear
that due process is not violated when a state prosecutor exercises
his discretion and charges a defendant as a habitual offender for
refusing a plea bargain. Bordenkircher v. Hayes, 434 U.S. 357, 98
S.Ct. 663, 54 L.Ed.2d 604 (1978).
In the third component of this challenge to the
constitutionality of Section 31.03(e)(4)(E), Smallwood claims that
this statutory provision is ambiguous and overbroad. In support of
this claim, Smallwood notes that: Section 31.03(e)(4)(E) reaches
17
thefts from $.01 to $750.0010; Texas courts have demonstrated some
confusion over whether this statute is an enhancement statute;
and, a person of common intelligence is required to guess whether
the legislature intended that Section 31.03(e)(4)(E) may be joined
with the habitual offender statute.
"A penal statute is void for vagueness unless it "define[s]
the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory enforcement.'
" Buckley v. Collins, 904 F.2d 263, 266 (5th Cir.), cert. denied,
498 U.S. 990, 111 S.Ct. 532, 112 L.Ed.2d 543 (1990) (quoting
Kolender v. Lawson, 461 U.S. 352, 356-58, 103 S.Ct. 1855, 1858, 75
L.Ed.2d 903 (1983). While it may be arguable that Texas courts
have demonstrated some confusion regarding the characterization of
Section 31.03(e)(4)(E) as an enhancement statute, this ambiguity
can have no effect on Smallwood's understanding of what conduct is
prohibited by Section 31.03(e)(4)(E)—theft. See Gant v. State, 606
S.W.2d 867, 871-872 n. 9 (Tex.Crim.App.1980). Smallwood fails to
explain how the purportedly uncertain joint applicability of
Sections 31.03(e)(4)(E) and 12.42(d) impacted his understanding of
what conduct was prohibited. The fact that overlapping statutes
create uncertainty as to which crime may be charged—and therefore
which penalties might be imposed—does not render the overlapping
statutes unconstitutionally ambiguous as long as the statutes
10
This was the range of theft offenses encompassed within
the language of Section 31.03(e)(4)(E) at the time Smallwood was
charged.
18
clearly define the prohibited conduct and authorized punishment.
United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198,
2204, 60 L.Ed.2d 755 (1979).
Finally, Smallwood's argument that Section 31.03(e)(4)(E) is
overbroad must fail. A statute is overbroad if it reaches a
substantial amount of constitutionally protected conduct. Ferguson
v. Estelle, 718 F.2d 730, 732-733 (5th Cir.1983). Smallwood has
failed to explain how stealing goods of any value might be
constitutionally protected conduct.
Conclusion
Having fully considered and rejected each of Smallwood's
points of error, the judgment of the district court is accordingly
AFFIRMED.
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