Brenda Ritchey v. Steve Pinnell and Amy Pinnell ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00022-CR
______________________________
SHAWANDA M. SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 37773-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Shawanda M. Smith has appealed from her open plea of guilty to the offense of possession
of a controlled substance with intent to deliver. 1 The court sentenced Smith to five years‘
imprisonment.
On appeal, Smith contends that her sentence is cruel and unusual in that it is grossly
disproportionate to the crime, citing, among other cases, Solem v. Helm, 463 U.S. 277 (1983), and
Baldridge v. State, 77 S.W.3d 890 (Tex. App.––Houston [14th Dist.] 2002, pet. ref‘d). To
preserve such complaint for appellate review, Smith must have presented to the trial court a timely
request, objection, or motion that stated the specific grounds for the desired ruling, or the
complaint must be apparent from the context. See TEX. R. APP. P. 33.1(a)(1); Harrison v. State,
187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex.
App.––Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely
manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.––Houston [14th Dist.] 2001, pet.
ref‘d) (failure to complain to trial court that sentences were cruel and unusual waived claim of
error for appellate review). We have reviewed the records of the trial proceeding. No relevant
request, objection, or motion was made. And, while this Court has held that a motion for new trial
is an appropriate way to preserve this type of claim for review (see Williamson v. State, 175
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.
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S.W.3d 522, 523–24 (Tex. App.––Texarkana 2005, no pet.), and Delacruz v. State, 167 S.W.3d
904 (Tex. App.––Texarkana 2005, no pet.)), no motion for new trial was filed. Smith has not
preserved such an issue for appeal.
However, even absent waiver, 2 we conclude that Smith‘s sentence was not grossly
disproportionate. 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,
Smith‘s sentence falls within the applicable range of not less than five years or more than
ninety-nine years or life imprisonment. See TEX. PENAL CODE ANN. § 12.32 (Vernon Supp.
2009).
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.); 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)
2
See Faizon v. State, No. 12-05-00353-CR, 2006 Tex. App. LEXIS 6079, at *8 (Tex. App.––Tyler July 12, 2006, no
pet.) (mem. op., not designated for publication).
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(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 Smith‘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
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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 Smith‘s claim of
demonstrable error. Cf. Jackson, 989 S.W.2d at 846 (―there 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.
Jack Carter
Justice
Date Submitted: June 30, 2010
Date Decided: July 1, 2010
Do Not Publish
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