Court of Appeals of Texas, Sixth District, TexarkanaFeb 15, 2007
No. 06-06-00159-CR (Tex. App. Feb. 15, 2007)

No. 06-06-00159-CR

Submitted: February 13, 2007.

Decided: February 15, 2007. DO NOT PUBLISH.

On Appeal from the 124th Judicial District Court Gregg County, Texas, Trial Court No. 31009-B

Before Morriss, C.J., Carter and Moseley, JJ.


Bailey C. Moseley, Justice.

Jennifer Morgan Smith appeals her conviction by the trial court of theft over $1,500.00. See TEX. PENAL CODE ANN. § 31.03(e)(4)(A) (Vernon Supp. 2006). Smith pleaded guilty and was convicted and sentenced June 22, 2006. There was no plea agreement. The trial court sentenced Smith to eighteen months' confinement in a state-jail facility. On appeal, Smith contends the sentence imposed by the trial court was disproportionate to the offense, citing Solem v. Helm, 463 U.S. 277 (1983). Texas courts have traditionally held that, so 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, Smith's sentence falls within the applicable range of 180 days to two years. See TEX. PENAL CODE ANN. § 12.35 (Vernon 2003). 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, 463 U.S. at 290; Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Dunn v. State, 997 S.W.2d 885, 891-92 (Tex.App.-Waco 1999, pet. ref'd); Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex.App.-Dallas 1994, pet. ref'd). 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); Dunn, 997 S.W.2d at 892; 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 — (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469 (Tex.App.-Texarkana 2006, no pet.); Dunn, 997 S.W.2d at 892; Lackey, 881 S.W.2d at 420-21. Smith's sentence is eighteen months' confinement; the range for a state-jail felony is 180 days' to two years' imprisonment. This range has been determined by the Legislature to constitute appropriate punishment for this type of crime. Nothing in this record demonstrates or raises an inference that this sentence was grossly disproportionate to this offense. Smith has failed to show that her sentence was constitutionally disproportionate to the offense for which she was convicted. Her sole contention is overruled. We affirm the judgment of the trial court.

Smith did not object to the sentence on the ground it was disproportionate to the crime, or on any other ground, at the time it was imposed. Her motion for new trial, however, 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. 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.).

Even if there had been an inference raised that this sentence was grossly disproportionate, this record contains no evidence comparing this sentence with others in the same jurisdiction for this offense, or those imposed on defendants in other jurisdictions who committed a similar offense. See Delacruz, 167 S.W.3d at 906.