PD-1303-15
PD-1303-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/1/2015 1:52:10 PM
Accepted 10/2/2015 11:16:40 AM
ABEL ACOSTA
No.______________
CLERK
IN
THE
COURT
OF
CRIMINAL
APPEALS
OF
TEXAS
AUSTIN,
TEXAS
ROXANE
YVETTE
DAVIS,
APPELLANT
V.
THE
STATE
OF
TEXAS,
APPELLEE
APPELLANT’S
PETITION
FOR
DISCRETIONARY
REVIEW
CASE
NUMBER
12-‐15-‐00077-‐CR
COURT
OF
APPEALS
FOR
THE
12TH
DISTRICT
OF
TEXAS
AT
TYLER,
TEXAS
ON
APPEAL
FROM
NO.
241-‐1149-‐14
IN
THE
241ST
JUDICIAL
DISTRICT
COURT
OF
SMITH
COUNTY,
TEXAS
HONORABLE
JACK
SKEEN,
JR,
JUDGE
PRESIDING
J.
BRANDT
THORSON
STATE
BAR
NO.
24043958
606
E.
METHVIN
ST.
P.O.
BOX
3768
LONGVIEW,
TEXAS
75606
(903)
758-‐4878
(903)
212-‐3038
FACSIMILE
APPELLANT
REQUESTS
ORAL
ARGUMENT
October 2, 2015
IDENTITY
OF
JUDGE,
PARTIES,
&
COUNSEL
Appellant:
Roxane
Yvette
Davis
Appellee:
The
State
of
Texas,
by
and
through
her
Criminal
District
Attorney
of
Smith
County,
D.
Matt
Bingham
Trial
Judge
Hon.
Jack
Skeen,
Jr.
241st
Judicial
District
Judge
100
N.
Broadway,
Room
220
Tyler,
Texas
75702
Appellant’s
Trial
&
Appellate
Counsel:
J.
Brandt
Thorson
State
Bar
No.
24043958
J.
Brandt
Thorson,
PLLC
606
E.
Methvin
St.
P.O.
Box
3768
Longview,
Texas
75606
jbt@jbtfirm.com
Appellee’s
Trial
&
Appellate
Counsel:
Lucas
R.
Machicek
(Trial
Counsel)
State
Bar
No.
24064230
Michael
J.
West
(Appellate
Counsel)
State
Bar
No.
21203300
Smith
County
Assistant
Criminal
District
Attorney
100
N.
Broadway,
Ste.
400
Tyler,
Texas
75702
2
TABLE
OF
CONTENTS
Cover
Page…………………………………………………...……………………………………1
Identity
of
Judge,
Parties
&
Counsel…………………………………………………….2
Table
of
Contents……………………………………………………………………………….3
Index
of
Authorities…………………………………………………………………………...4
Statement
Regarding
Oral
Argument………………………………………………..…5
Statement
of
the
Case…………………………………………………………………………5
Statement
of
Procedural
History………………………………………………………...5
Grounds
for
Review……………………………………………………………………………6
The
Court
of
Appeals
erred
when
it
held
that
Appellant’s
punishment
assessed
was
not
cruel
and
unusual
punishment,
as
the
relationship
between
the
punishment
assessed
and
the
underlying
criminal
act
is
grossly
disproportionate.
Argument………………………………………………………………………………………..…6
Prayer
for
Relief………………………………………………………………………………10
Certificate
of
Compliance………………………………………………………………….11
Certificate
of
Service………………………………………………………………………...11
Appendix…………………………………………………………………………………………12
3
INDEX
OF
AUTHORITIES
Atkins
v.
Virginia,
536
U.S.
304,
122
S.Ct.
2242,
153
L.Ed.2d
335
(2002).8
Davis
v.
Texas,
2015
WL
5157530
(Tex.App.-‐Tyler,
delivered
Sept.
2,
2015)……………………………………………………………………………………...…….5,12
Ford
v.
Wainwright,
477
U.S.
399,
106
S.Ct.
2595,
91
L.Ed.
2d
335
(1986)……………………………………………………………………………………………….8
Roper
v.
Simmons,
543
U.S.
551,
125
S.Ct.
1183,
161
L.Ed.
2d
1
(2005)….8
Rummel
v.
Estell,
445
U.S.
263,
100
S.Ct.
1133,
63
L.Ed.2d
382
(1980)………………………………………………………………………………………….7,8,9
Solem
v.
Helm,
463
U.S.
277,
103
S.Ct.
3001,
77
L.Ed.2d
637
(1983)……...7
Weems
v.
U.S.,
217
U.S.
349,
30
S.Ct.
544,
54
L.Ed.
793
(1910)……………8.9
Tex.
Penal
Code
§
31.03…………………………………………………………………...…5
Tex.
R.App.Pro.
9.4(i)(3)…..
…………………………………………………………..….11
4
STATEMENT
REGARDING
ORAL
ARGUMENT
The
Appellant
respectfully
requests
oral
argument.
STATEMENT
OF
THE
CASE
Appellant
was
charged
by
indictment
with
the
offense
of
Theft,
of
the
value
of
less
than
$1500,
with
enhancement
of
two
previous
convictions
of
theft,
in
violation
of
Tex.
Penal
Code
§
31.03.
(CR.,
p.
1).
Appellant
entered
an
open
plea
to
the
Court.
Appellant
entered
a
plea
of
guilty
to
the
offense
of
theft
as
alleged
in
the
indictment
and
entered
pleas
of
true
to
the
enhancement
allegations
contained
in
the
indictment
on
February
2,
2015
(Vol.
1,
p.
3,
13).
On
February
26,
2015,
the
Court
conducted
a
Sentencing
Hearing,
assessing
punishment
at
16
months
in
a
State
Jail
Facility.
(Vol.
2,
p.
80).
Appellant
timely
perfected
the
appeal.
(CR.,
p.
60).
STATEMENT
OF
PROCEDURAL
HISTORY
Appellant
presented
two
issues
in
the
appellate
brief.
The
conviction
was
affirmed
in
the
Memorandum
Opinion
issued
on
September
2,
2015.
Roxanne
Yvette
Davis
v.
Texas,
2015
WL
5157530
(Tex.App.-‐Tyler,
delivered
Sept.
2,
2015)(See
Appendix).
No
Motion
for
5
Rehearing
was
filed;
therefore,
no
date
for
said
motion
was
overruled
or
otherwise
disposed
of.
This
petition
is
due
to
be
filed
on
October
2,
2015,
and
therefore,
it
is
timely
filed.
GROUND
FOR
REVIEW
The
Court
of
Appeals
erred
when
it
held
that
Appellant’s
punishment
assessed
was
not
cruel
and
unusual
punishment,
as
the
relationship
between
the
punishment
assessed
and
the
underlying
criminal
act
is
grossly
disproportionate.
ARGUMENT
The
Trial
Court’s
assessment
of
a
16
month
confinement
in
a
State
Jail
facility
for
an
underlying
theft
with
a
restitution
figure
of
$275
is
unconstitutionally
disproportionate
(Vol.
2,
p.
26).
Limiting
the
scope
of
the
8th
Amendment
to
death
penalty
cases
has
no
foundation
in
the
Constitution.
The
logic
of
the
opinion
from
the
Court
of
Appeals
is
circular.
The
Court
rationalizes
that
the
Legislature
is
vested
with
the
power
to
define
crimes
and
proscribe
punishment,
and
that
as
long
as
the
punishment
is
within
the
confines
of
a
valid
statute,
it
is
necessarily
not
excessive,
6
cruel
or
unusual.
This
gives
the
legislative
branch
unbridled
power
to
legislate
any
punishment
it
desires.
It
eliminates
the
oversight
function
of
the
Courts.
Just
because
an
assessed
punishment
falls
within
the
legislated
confines
of
the
law
does
not
mean
that
said
punishment
is
necessarily
not
cruel
or
unusual.
The
Court
then
goes
onto
outline
the
3
prong
test
found
in
Solem
v.
Helm,
463
U.S.
277,
103
S.Ct.
3001,
77
L.Ed.2d
637
(1983)
and
define
the
threshold
issue
of
analysis
as
disproportionality.
In
analyzing
disproportionality,
the
Court
relies
exclusively
on
Rummel
v.
Estell,
445
U.S.
263,
100
S.Ct.
1133,
63
L.Ed.2d
382
(1980).
Times
have
changed
and
so
should
the
standards
for
analyzing
proportionality
in
sentences.
In
Rummel
v.
Estell,
a
5-‐4
majority
opinion
from
1980
upheld
a
Mandatory
Life
conviction
for
a
habitual
Texas
thief.
At
first
glance,
this
case
is
analogous
to
the
case
at
hand.
Both
involve
Texans
that
had
two
previous
convictions.
Both
cases
involve
theft,
and
both
result
in
enhanced
sentences.
The
problem
with
this
analysis,
however,
is
that
it
doesn’t
take
a
closer
look
at
the
underlying
assumptions
of
the
1980
case
and
how
jurisprudence
has
changed
in
the
last
35
years.
The
time
of
the
ruling
in
Rummel
is
dramatically
different
than
the
times
in
which
we
find
ourselves
today.
7
Looking
at
Death
Penalty
cases
from
the
last
35
years,
the
view
of
Cruel
and
Unusual
Punishment
has
changed.
Our
society,
in
a
large
part
because
of
the
decisions
of
the
Courts,
has
moved
forward.
A
microcosm
of
this
change
is
Death
Penalty
cases
in
the
Supreme
Court.
Examining
a
timeline
from
1980
until
today
reveals
that
the
mentally
retarded,
minors,
and
insane
can
no
longer
be
executed.
See
Atkins
v.
Virginia,
536
U.S.
304,
122
S.Ct.
2242,
153
L.Ed.2d
335
(2002),
Roper
v.
Simmons,
543
U.S.
551,
125
S.Ct.
1183,
161
L.Ed.
2d
1
(2005)
and
Ford
v.
Wainwright,
477
U.S.
399,
106
S.Ct.
2595,
91
L.Ed.
2d
335
(1986).
This
is
not
a
result
of
a
change
in
the
Constitution,
but
a
change
in
the
interpretation
of
such.
The
same
is
true
of
how
the
8th
Amendment
should
be
viewed
in
light
of
individuals
charged
in
cases
such
as
the
instant
case
and
Rummel.
A
closer
look
at
Rummel
reveals
that
the
majority
opinion
heavily
cites
Weems
v.
U.S.
in
an
effort
to
steer
8th
Amendment
analysis
away
from
non-‐death
penalty
cases.
Weems
v.
U.S.,
217
U.S.
349,
30
S.Ct.
544,
54
L.Ed.
793
(1910).
By
focusing
on
an
extreme
case
where
time
was
not
the
only
condition
of
confinement,
the
Court
effectively
creates
a
standard
that
“as
punishable
by
significant
terms
of
imprisonment
in
a
8
state
penitentiary,
the
length
of
the
sentence
actually
imposed
is
purely
a
matter
of
legislative
prerogative”
Rummel,
445
U.S.
at
275.
As
Justice
Powell
states
in
the
dissent,
“The
Court
concedes
today
that
the
principle
of
disproportionality
plays
a
role
in
the
review
of
sentences
imposing
the
death
penalty,
but
suggests
that
the
principle
may
be
less
applicable
when
a
noncapital
sense
is
challenged.
Such
limitation
finds
no
support
in
the
History
of
Eighth
Amendment
jurisprudence.”
Id.
at
288.
It
is
time
that
the
wrong
of
Rummel
be
corrected.
An
honest
analysis
of
proportionality
reveals
that
from
a
historical
perspective,
the
idea
of
disproportionality
applies
to
both
capital
and
non-‐capital
cases.
Whether
dating
back
to
the
extraordinary
circumstances
of
Weems
in
1910
or
merely
using
common
sense,
proportionality
and
reason
deserve
a
chance.
In
the
case
at
hand,
the
Appellant
admits
during
testimony
at
Sentencing
to
a
restitution
amount
of
$270.
(Vol.
2,
p.
26).
Dividing
that
sum
over
the
sixteen-‐month
period
of
confinement,
the
Appellant’s
monthly
payment
of
time
to
society
is
only
worth
$16.875
per
month.
Taken
further,
her
time
is
worth
less
than
56
cents
per
day.
Granted,
she
plead
true
to
the
two
enhancement
allegations
in
the
second
9
paragraph
of
her
indictment,
but
the
severity
of
her
previous
crimes
leads
one
to
question
the
rationality
of
such
a
steep
sentence.
Times
are
changing,
and
so
are
the
standards
used
to
determine
what
is
a
just
sentence.
As
is
evident
with
President
Obama’s
recent
call
to
eliminate
Mandatory
Minimum
Sentencing
guidelines
in
the
federal
system
and
the
overrunning
costs
of
keeping
non-‐violent
offenders
incarcerated,
Appellant
prays
that
this
Court
will
re-‐examine
this
issue.
PRAYER
FOR
RELIEF
WHEREFORE,
PREMISES
CONSIDERED,
Appellant
respectfully
prays
that
this
Court
grant
discretionary
review
and,
after
full
briefing
on
the
merits,
issue
an
opinion
reversing
the
Court
of
Appeals’
judgment
and
remanding
the
cause
to
the
trial
court
for
a
new
trial.
Respectfully
Submitted,
/s/J.
Brandt
Thorson
J.
Brandt
Thorson
State
Bar
No.
24043958
J.
Brandt
Thorson,
PLLC
606
E.
Methvin
St.
P.O.
Box
3768
Longview,
Texas
75606
jbt@jbtfirm.com
10
CERTIFICATE
OF
COMPLIANCE
I,
J.
Brandt
Thorson,
do
hereby
certify
that
the
word
count
specified
in
Tex.
Rules
of
App.
Proc.
9.4(i)(3)
provided
by
the
computer
program
used
to
prepare
this
brief
is
1621
words.
/s/J.
Brandt
Thorson
J.
Brandt
Thorson
CERTIFICATE
OF
SERVICE
We
hereby
certify,
by
affixing
my
signature
below,
that
a
true
and
correct
copy
of
the
foregoing
Petition
for
Discretionary
Review,
was
delivered
via
the
electronic
filing
manager
to
(1)
D.
Matt
Bingham,
Criminal
District
Attorney
of
Smith
County,
Texas
and
(2)
to
the
Office
of
the
State
Prosecuting
Attorney
on
October
1,
2015.
/s/J.
Brandt
Thorson
J.
Brandt
Thorson
11
APPENDIX
Roxanne
Yvette
Davis
v.
Texas,
2015
WL
5157530
(Tex.App.-‐Tyler,
delivered
Sept.
2,
2015)
12
NO. 12-15-00077-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ROXANNE YVETTE DAVIS, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Roxanne Yvette Davis appeals her conviction for theft, for which she was sentenced to
confinement for sixteen months. In two issues, Appellant argues her sentence is excessive and
grossly disproportionate to the crime of which she was convicted. We affirm.
BACKGROUND
Appellant was charged by indictment with theft. The indictment further alleged that
Appellant had twice been previously convicted of theft. Appellant pleaded “guilty,” and the
matter proceeded to a trial on punishment. Ultimately, the trial court sentenced Appellant to
confinement for sixteen months, and this appeal followed.
CRUEL AND UNUSUAL PUNISHMENT
In her first and second issues, Appellant argues that the sixteen month sentence imposed
by the trial court amounts to cruel and unusual punishment. However, Appellant made no timely
objection to the trial court raising the issue of cruel and unusual punishment and has, therefore,
failed to preserve any such error. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.
1996) (waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d
490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United States
Constitution); Ajisebutu v. State, 236 S.W.3d 309, 311–12 (Tex. App.–Houston [1st Dist.] 2007,
no pet.) (waiver with regard to Texas Code of Criminal Procedure, Article 1.09); see also TEX R.
APP. P. 33.1; Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). (“Preservation of error
is a systemic requirement that a first-level appellate court should ordinarily review on its own
motion[;] . . . it [is] incumbent upon the [c]ourt itself to take up error preservation as a threshold
issue.”). But even despite Appellant’s failure to preserve error, we conclude that the sentence
about which she complains does not constitute cruel and unusual punishment.
The Eighth Amendment to the Constitution of the United States provides that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. CONST. AMEND. VIII. This provision was made applicable to the states by the
Due Process Clause of the Fourteenth Amendment. Meadoux v. State, 325 S.W.3d 189, 193
(Tex. Crim. App. 2010) (citing Robinson v. California, 370 U.S. 660, 666–67, 82 S. Ct. 1417,
1420–21, 8 L. Ed. 2d 758 (1962)).
The legislature is vested with the power to define crimes and prescribe penalties. See
Davis v. State, 905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref’d); see also Simmons v.
State, 944 S.W.2d 11, 15 (Tex. App.–Tyler 1996, 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. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664. In the case at hand,
Appellant was convicted of theft of property valued at less than $1,500 with two prior theft
convictions, the punishment range for which is one hundred eighty days to two years. See TEX.
PENAL CODE ANN. §§ 12.35(a), 31.03(e)(4)(D) (West Supp. 2014). Thus, the sentence imposed
by the trial court falls within the range set forth by the legislature. Therefore, the punishment is
not prohibited as cruel, unusual, or excessive per se.
Nonetheless, Appellant urges the court to perform the three part test originally set forth in
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this 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. Solem,
463 U.S. at 292, 103 S. Ct. at 3011. 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
2
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991) to require a
threshold determination that the sentence is grossly disproportionate to the crime before
addressing the remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.
1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v.
State, 989 S.W.2d 842, 845–46 (Tex. App.–Texarkana 1999, no pet.).
We first must determine whether Appellant’s sentence is grossly disproportionate. In so
doing, we are guided by the holding in Rummel v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63
L.Ed.2d 382 (1980). In Rummel, the Supreme Court addressed the proportionality claim of an
appellant who had received a mandatory life sentence under a prior version of the Texas habitual
offender statute for a conviction of obtaining $120.75 by false pretenses. See id., 445 U.S. at 266,
100 S. Ct. at 1135. A life sentence was imposed because the appellant also had two prior felony
convictions––one for fraudulent use of a credit card to obtain $80.00 worth of goods or services
and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 266, 100 S. Ct.
at 1134–35. After recognizing the legislative prerogative to classify offenses as felonies and,
further, considering the purpose of the habitual offender statute, the court determined that the
appellant’s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445 U.S.
at 285, 100 S. Ct. at 1145.
In the case at hand, the offense committed by Appellant––theft of less than $1,500 with
two prior theft convictions––is more serious than the combination of offenses committed by the
appellant in Rummel, while Appellant’s sixteen month sentence is far less severe than the life
sentence upheld by the Supreme Court in Rummel. Thus, it is reasonable to conclude that if the
sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence
assessed against Appellant in the case at hand. Therefore, since we do not find the threshold test
to be satisfied, we need not apply the remaining elements of the Solem test. Appellant’s first and
second issues are overruled.
DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered September 2, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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