                                                                            ACCEPTED
                                                                        06-15-00102-CR
                                                             SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                   10/9/2015 1:48:30 PM
                                                                       DEBBIE AUTREY
                                                                                 CLERK



                  No. 06-15-00101-CR,
                  No. 06-15-00102-CR               FILED IN
                                            6th COURT OF APPEALS
                  No. 06-15-00103-CR           TEXARKANA, TEXAS
        ______________________________________
                                            10/9/2015 1:48:30 PM
                                                   DEBBIE AUTREY
                        IN THE                        Clerk
                 COURT OF APPEALS
                       FOR THE
        SIXTH COURT OF APPEALS DISTRICT
                      OF TEXAS
               AT TEXARKANA TEXAS
        ______________________________________

             JEREMY JERMAINE HODGE
                              Appellant
                       V.

                 THE STATE OF TEXAS
                                 Appellee

                      Appealed from
     The County Court at Law of Panola County, Texas
Trial Court No.s 2012-C-0096, 2012-C-0097, and 2012-C-0098

     __________________________________________

     BRIEF FOR THE STATE OF TEXAS, APELLEE
      __________________________________________

                          Rick McPherson
                          Attorney at Law
                          418 West Sabine Street
                          Carthage, Texas 75633
                          Tel: (903) 693-7143
                          Fax:(903) 693-3038
                          mcphersonlaw@hotmail.com

                          Attorney for The State of Texas
                  IDENTITY OF PARTIES AND COUNSEL

Jeremy Jermaine Hodge
Appellant

Kyle Dansby
Counsel for Appellant
P.O. Box 1914
Marshall, Texas 75671

Danny Buck Davidson
Criminal District Attorney, Panola County, Texas
Trial Counsel for the State
Judicial Building Ste. 301
108 South Sycamore
Carthage, Texas 75633-2524

Rick McPherson
Appellate Counsel for the State
418 West Sabine Street
Carthage, Texas 75633




                                       i.
                                           TABLE OF CONTENTS

Identity of Parties and Counsel ...................................................................................i

Table of Contents ...................................................................................................... ii

Index of Authorities ................................................................................................. iii

Statement of the Case................................................................................................. 1

Issue Presented ........................................................................................................... 1

Statement of Facts ...................................................................................................... 2

Summary of the Argument......................................................................................... 4

Argument.................................................................................................................... 5

         Issue One (restated)

         AFTER     REVOKING      HIS          COMMUNITY
         SUPERVISION, DID THE TRIAL COURT ABUSE ITS
         DISCRETION    BY   REFUSING        TO         REDUCE
         APPELLANT’S SENTENCE FROM TWO YEARS TO
         SOME LESSER PERIOD OF TIME .............................................................. 5

         Issue Two (restated)

         IN AN APPEAL FROM REVOCATION OF HIS
         COMMUNITY SUPERVISION, CAN THE APPELLANT
         COMPLAIN THAT HIS SENTENCE IS GROSSLY
         DISPROPORTIONATE TO THE CRIMES ................................................. 10

Prayer ....................................................................................................................... 13

Certificate of Word Count ....................................................................................... 13

Certificate of Service ............................................................................................... 14




                                                              ii.
                                      INDEX OF AUTHORITIES

Cases


Amado v. State
983 S.W.2d 330 (Tex. App. – Houston [1st Dist.] 1998, pet. ref’d) .......................... 6

Burns v. State
832 S.W.2d 695 (Tex.App.--Corpus Christi 1992, no pet.)..................................... 10

Corley v. State
782 S.W.2d 859 (Tex.Crim.App.1989) ................................................................... 10

Crider v. State
848 S.W.2d 308 (Tex. App. – Ft. Worth 1993, pet. ref’d) ...................................... 11

Dears v. State
154 S.W.3d 610 (Tex.Crim. App. 2005) ................................................................. 12

Delacruz v. State167 S.W.3d 904
(Tex.App.—Texarkana 2005, no pet.) ..................................................................... 10

Ex Parte Chavez, 213 S.W.3d 320
(Tex. Crim. App. 2006).............................................................................................. 6

Fluellen v. State
71 S.W.3d 870 (Tex. App. – Texarkana 2002, no pet.) ............................................. 9

Harmelin v. Michigan
501 U.S. 957(1991) .................................................................................................... 7

Hoskins v. State
425 S.W.2d 825 (Tex.Crim.App.1967) ................................................................... 10

Jackson v. State, 989 S.W.2d 842
(Tex. App. – Texarkana 1999, no pet.) ...................................................................... 7

Jordan v. State, 495 S.W.2d 949
(Tex. Crim. App. 1973).............................................................................................. 6


                                                          iii.
Latham v. State, 20 S.W.3d 63
(Tex.App. - Texarkana 2000, pet. ref’d) .................................................................. 10

McGruder v. Puckett
954 F.2d 313 (5th Cir.), cert. denied, 506 U.S. 849 (1992) ........................................ 7

Mizell v. State
119 S.W.3d 804 (Tex. Crim. App. 2003) ................................................................ 11

Mullin v. State
208 S.W.3d 469 (Tex. App. – Texarkana 2006, no. pet.) .......................................... 8

Rickels v. State
202 S.W.3d 759 (Tex. Crim. App. 2006) .................................................................. 6

Solem v. Helm
463 U.S. 277 (1983) ................................................................................................... 8

Stafford v. State
63 S.W.3d 502 (Tex.App. - Texarkana 2001, pet. ref’d) ......................................... 10

Statutes, Codes, Rules

Tex. Code Crim. Pro. Art. 42.12 §23(b) ............................................................10, 11

Tex. Pen. Code §12.35(a) ........................................................................................ 11
Tex. Pen. Code §30.02(c)(1) .................................................................................... 11
Tex. Pen. Code §32.31(d) ........................................................................................ 11

Tex. R. App. P. 25.2(d) ............................................................................................ 12




                                                          iv.
                                                          STATEMENT OF THE CASE

              This is an appeal from judgments revoking Appellant’s community

supervision in three cases filed in the County Court at Law of Panola County, Texas.

On January 27, 2015, the State filed motions to revoke the community supervision

of Jeremy Jermaine Hodge in all three cases (CR 20)1. Following a hearing, the

Court found that Appellant had violated the terms of his community supervision,

ordered that his community supervision be revoked and that he serve the concurrent

sentences of two years in state jail that had been previously imposed, and then

suspended, in each case (3RR 47:21-48:14). The Appellant filed a motion for new

trial which was denied. He thereafter perfected his appeal to this Court.




                                                               ISSUES PRESENTED

                                                                ISSUE NO. ONE

                                         AFTER REVOKING HIS COMMUNITY
                                         SUPERVISION, DID THE TRIAL COURT
                                         ABUSE ITS DISCRETION BY REFUSING
                                         TO REDUCE APPELLANT’S SENTENCE
                                         FROM TWO YEARS TO SOME LESSER
                                         PERIOD OF TIME
                                                            
1
  There are, in fact, three clerk’s records – one for each of the three cases. The three records are
identically paginated, and the documents contained therein are the same. Individual documents
vary from record to record only to the extent necessitated by the different crimes charged and the
facts peculiar to each. References to the clerk’s record include all three, unless specifically
noted.

                                                                      1.
                               ISSUE NO. TWO
                 IN AN APPEAL FROM REVOCATION OF
                 HIS COMMUNITY SUPERVISION, CAN
                 THE APPELLANT COMPLAIN THAT
                 HIS    SENTENCE    IS  GROSSLY
                 DISPROPORTIONATE TO THE CRIMES
                 COMMITTED



                          STATEMENT OF FACTS

      On June 27, 2012, Appellant, Jeremy Jermaine Hodge, entered pleas of guilty

in three felony cases: Cause No. 2012-C-0096, in which he was charged with

burglary of a building, Cause No 2012-C-0097, in which he was charged with credit

or debit card abuse, and Cause No. 2012-C-0098, which was also a credit card abuse

case (2RR5:5; CR 6).

      The Appellant’s pleas of guilty were entered, pursuant to plea bargain

agreements with the State (CR 6). The Court approved the plea bargain agreement

in each case. Pursuant to the plea bargain agreements, the Defendant was found

guilty in all three cases and sentenced to 2 years confinement in the Texas

Department of Criminal Justice, State Jail Division. The court ordered that the

sentences run concurrently, and that each be probated for 4 years (CR 14). As part

of the plea bargain agreement, the Defendant waived his right to appeal (CR 10),




                                        2.
and the Court duly certified that each case was a plea bargained case and the

defendant had no appellate rights (CR 12).

              Thereafter on January 27, 2015, the State filed motions to revoke community

supervision in all three cases (CR 20). The motions to revoke alleged that Appellant

had been found in possession of controlled substances, had tested positive for

marijuana, opiates, and benzodiazepine, had failed to report as ordered, and was

delinquent 54.75 hours of community service (2RR 6:12-7:6; CR 21). Following a

hearing, the court found that Appellant violated the terms of his probation by testing

positive for illegal drugs one time, and by failing to report four times (3RR 49:9-14).

The court revoked Appellant’s probation, and sentenced him to 2 years in state jail

(3RR 47:21-48:14).

              Appellant filed a motion for new trial (CR 28), which was denied (CR 39).

This appeal results. Appellant concedes that the court properly found two violations

of probation.2 The only claim he raised in his motion for new trial, and in this appeal,

is his contention that his sentence – two years confinement in state jail (CR 26) –

amounts to cruel and unusual punishment in violation of the Eighth Amendment to

the United States Constitution because it is grossly disproportionate to the crimes

charged.


                                                            
2
    See Appellant’s Brief, Page 11

                                                               3.
                       SUMMARY OF THE ARGUMENT

Summary of the Argument – Issue No. 1

      The standard of review in probation revocation cases is abuse of discretion.

In analyzing a sentence to determine whether it is grossly disproportionate, the court

first compares the gravity of the offense with the severity of the sentence. If, and

only if, that comparison leads to an inference that the sentence is grossly

disproportionate, the court goes on to compare the sentence imposed to sentences

for the same or similar crimes in Texas and other jurisdictions.

      Appellant’s sentences were not unduly severe given the gravity of the crimes

because 1) Appellant was charged with burglary of a building and credit card abuse;

2) there were a total of three cases; 3) there were victims to whom Appellant was

ordered to make restitution; 4) Appellant was sentenced within the penalty range,

and 5) Appellant agreed to the sentences.

      Appellant presented no evidence of sentences for the same or similar crimes

in other jurisdictions. Appellant’s evidence of reduced sentences in other revocation

cases is not germane to the issue of whether his sentence was disproportionate.

      The court did not abuse its discretion in refusing to reduce Appellant’s

sentence.




                                          4.
Summary of the Argument – Issue No. 2

      Appellant may appeal his conviction and punishment at the time of his

conviction. At the time his probation is revoked, Appellant may appeal only the

revocation. Appellant agreed to the punishment and waived his right to appeal at

the time he was originally convicted. At the time of his conviction, the court certified

that these were plea bargained cases, and the Appellant had no right to appeal. Had

he attempted to appeal at the time he was convicted, his appeal should have been

dismissed for want of jurisdiction. Because he has no right to appeal his punishment

at this time, and he had no right to appeal at the time he was convicted, Appellant’s

appeal should be dismissed for want of jurisdiction.

                                    ARGUMENT

                                  ISSUE NO. ONE
                                     (restated)

                  AFTER REVOKING HIS COMMUNITY
                  SUPERVISION, DID THE TRIAL COURT
                  ABUSE ITS DISCRETION BY REFUSING
                  TO REDUCE APPELLANT’S SENTENCE
                  FROM TWO YEARS TO SOME LESSER
                  PERIOD OF TIME

      Appellant does not challenge the sufficiency of the evidence supporting the

court’s judgment revoking his community supervision. He admits that the trial court

properly found he violated the terms of his probation. His sole complaint on appeal


                                           5.
is that he was sentenced to two years in state jail for what he describes as “technical

violations” of his probation.3

              Appellate courts review a trial court's order revoking community supervision

under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex.

Crim. App. 2006). The reviewing court examines the evidence in the light most

favorable to the trial court's order. Id. The trial court’s sentencing decisions in

revocation hearings are subject to abuse of discretion review. See Amado v. State,

983 S.W.2d 330, 332 (Tex. App. – Houston [1st Dist.] 1998, pet. ref’d).

              Although it is not explicitly stated or argued, it appears Appellant is trying to

establish that the trial court’s refusal to reduce his sentence from two years to some

lessor period of time is an abuse of discretion because it results in a sentence that is

grossly disproportionate to the crimes charged.

              The Court of Criminal Appeals has described the Eighth Amendment concept

of gross disproportionality, as “very limited, ‘exceedingly rare,’ and somewhat

amorphous.” See Ex Parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006).

Texas courts have traditionally held that as long as the punishment assessed is within

the penalty range prescribed by the legislature, the punishment is not excessive, cruel

or unusual. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). But,


                                                            
3
    See Appellant’s Brief, Page 9

                                                               6.
even a sentence within the penalty range runs afoul of the constitution, if an appellant

can show it is grossly disproportionate to the crime charged. 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).

      In analyzing a sentence to determine whether it is grossly disproportionate,

the appellate court must first compare the gravity of the offense with the severity of

the sentence. Only if that comparison leads to an inference that the sentence is

grossly disproportionate does the court go on to consider the sentences for the same

or similar crimes in Texas, and other jurisdictions. See Harmelin v. Michigan, 501

U.S. 957, 991-93 (1991); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert.

denied, 506 U.S. 849 (1992); Lackey v. State, supra at 420-21; Jackson v. State, supra

at 846.

      Appellant argues that two years is excessive punishment for failing to report

four times and testing positive for illegal drugs once. This misstates the case. He

was not sentenced to two years for failing to report and testing positive for drugs.

He was sentenced to two years for burglarizing a building and using somebody else’s

credit card. Therefore, the proper analysis compares the severity of his sentence to

the gravity of those crimes, for which he was indicted, convicted and sentenced.

      When the proper comparison is made, it is clear that the Appellant does not

meet the threshold standard. The Appellant was sentenced within the penalty range


                                           7.
for three different felonies. Those crimes had victims to whom Appellant was

ordered to pay restitution totaling $2,185.42 (CR 6)4. The restitution figure in Cause

No. 2012-C-0096, included restitution5 in for yet a fourth case that was taken into

consideration (CR 6). And most telling, the Appellant didn’t think the sentences

were unduly harsh. There were plea bargains in these cases. Mr. Hodge bargained

for and agreed to the sentences imposed (CR 6; CR14). Given the gravity and

number of the crimes, the injury to innocent victims, and Appellant’s agreement to

the sentences imposed, this Court should find that the Appellant has not met the

threshold test by establishing an inference that the sentences were grossly

disproportionate. See Solem v. Helm, 463 U.S. 277, 290-91 (1983).

              Having failed to meet the threshold standard, the argument should be at an

end. See Mullin v. State, 208 S.W.3d 469, 470 (Tex. App. – Texarkana 2006, no.

pet.). However, in the event the Court finds it needs to proceed with an analysis of

the evidence comparing sentences in this and other jurisdictions, the State will

comment briefly on the evidence produced at the hearing on Appellant’s motion for

new trial.

              The evidence of sentences imposed for similar crimes in other jurisdictions

requires no discussion because there was none. Appellant did attempt to compare


                                                            
4
  $1,778.05 in Cause No. 2012-C-0096, $300.00 in Cause No. 2012-C-0097, and $107.37 in
Cause No. 2012-C-0098.
5
  $ 497.92 restitution in Case No. 27395-C (CR 6 in 2012-C-0096)

                                                               8.
his sentence to sentences in other Panola County cases. But instead of comparing

his sentences for burglary of a building and credit card abuse to other sentences for

the same crimes, he compares his sentences to sentences imposed in other probation

revocation cases. The documentary evidence he offered – eight judgments revoking

probation,6 two judgments adjudicating guilt,7 and a criminal case disposition report8

– involved a wide range of crimes, none of which was credit card abuse, and only

three of which were burglaries. He offered no evidence concerning the basis of the

motions to revoke filed in these cases, the evidence supporting them, whether or not

they involved plea bargains, or the many factors influencing the offer and acceptance

of plea bargains. No meaningful comparison can be made between Appellant’s

sentences and those imposed in the cases he cited to the trial court. Appellant has

not brought forth a record on which his case can be properly evaluated. Fluellen v.

State, 71 S.W.3d 870, 873 (Tex. App. – Texarkana 2002, no pet.)

              There is no showing that the sentences in these cases are unduly harsh. There

is no meaningful comparison between these sentences and other sentences in Texas

for the same crimes. There is no evidence of sentences imposed in other jurisdictions

for the same or similar crimes. Appellant has failed to show that the court abused

its discretion in declining to reduce his sentence.                 His claim of gross


                                                            
6
  Defendant’s Exhibits 2, 3, 4, 6, 7, 8, 9, 10, and 11
7
  Defendant’s Exhibits 1 and 5
8
  Defendant’s Exhibit 12

                                                               9.
disproportionality should be overruled. See Delacruz v. State, 167 S.W.3d 904, 906

(Tex.App.—Texarkana 2005, no pet.); Latham v. State, 20 S.W.3d 63, 69 (Tex.App.

- Texarkana 2000, pet. ref’d)

                                  ISSUE NO. TWO
                                     (restated)

                  IN AN APPEAL FROM REVOCATION OF
                  HIS COMMUNITY SUPERVISION, CAN
                  THE APPELLANT COMPLAIN THAT
                  HIS    SENTENCE    IS  GROSSLY
                  DISPROPORTIONATE TO THE CRIMES
                  COMMITTED

      Arguing further, the State contends that Appellant cannot complain of his

sentence in an appeal from revocation of his community supervision, and more than

that, respectfully submits that this Court is without jurisdiction to hear this case. In

an appeal from a judgment revoking community supervision, an appellant is limited

to complaints about the propriety of the revocation itself. Corley v. State, 782 S.W.2d

859, 860 (Tex.Crim.App.1989); Hoskins v. State, 425 S.W.2d 825, 828

(Tex.Crim.App.1967). An appellant's right to appeal the underlying conviction is

accorded him when he was placed on probation. Burns v. State, 832 S.W.2d 695,

696 (Tex.App.--Corpus Christi 1992, no pet.). Stafford v. State, 63 S.W.3d 502, 508

(Tex.App. - Texarkana 2001, pet. ref’d). His right to raise issues concerning his

sentence must be exercised at that time. Tex. Code Crim. Pro. Art. 42.12 §23(b)

provides that, “The right of a defendant to appeal for a review of the conviction and


                                          10.
punishment, as provided by law, shall be accorded the defendant at the time he is

placed on community supervision.” (emphasis added). Section 23(b) goes on to say

that when the defendant is notified that his community supervision is revoked, “. .

. he may appeal the revocation.”

              Appellant concedes the evidence supported the court’s judgment revoking his

probation. His sole ground of error is that his punishment was so unduly harsh that

it was disproportionate to the crimes charged. If Appellant felt that his punishment

was cruel and unusual because it was grossly disproportionate, or for any other

reason, he should have raised that issue when he was convicted and sentenced. He

does not have the right to raise such issues months or years later when his court

ordered community supervision is revoked. See Crider v. State, 848 S.W.2d 308,

310 (Tex. App. – Ft. Worth 1993, pet. ref’d).

              Since he did not appeal at the time he was originally sentenced he can only

raise the issue now, if the sentence was outside the penalty range and therefore

illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Burglary of

a building9 and credit card abuse10 as alleged in this case are both state jail felonies,

for which the maximum punishment is two years confinement in state jail.11 The




                                                            
9
  Tex. Pen. Code §30.02(c)(1)
10
   Tex. Pen. Code §32.31(d)
11
   Tex. Pen. Code §12.35(a)

                                                               11.
punishment assessed in this case was legal because it was not outside the penalty

range.

         There is nothing in the record to indicate that the Appellant tried to appeal his

sentence at the time of his conviction. The fact is that he entered into plea bargain

agreements in these cases (CR 6). In all three cases, he plead guilty and he agreed

to the two-year sentences (CR 14). Moreover he waived his right to appeal (CR10).

The trial court certified that he had no right to appeal (CR 12).

         Had the Appellant tried to appeal at the time he was convicted and sentenced,

the proper course on the part of this Court would have been to dismiss the appeal for

want of jurisdiction because the certification or right to appeal required by Tex. R.

App. P. 25.2(d) was not in the record.            In fact, the trial court’s certification

affirmatively shows that Mr. Hodge has waived his right of appeal, and there is

nothing in the record that reflects that the certification is incorrect, See Dears v.

State, 154 S.W.3d 610, 615 (Tex.Crim. App. 2005). He has no right to complain

about his sentence now, and he waived his right to complain about it then. Logic

would indicate that dismissal would be the proper course now.




                                            12.
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State of Texas, Appellee,

respectfully prays that the judgments revoking community supervision in the subject

cases, be in all things confirmed. Appellee prays for such other and further relief to

which it may show itself entitled.

                                       RESPECTFULLY SUBMITTED,

                                       DANNY BUCK DAVIDSON
                                       Criminal District Attorney
                                       Panola County Courthouse Annex, Ste. 301
                                       108 S. Sycamore St.
                                       Carthage, TX 75633
                                       Telephone: (903) 693-0310
                                       Telecopier: (903) 693-0368



                                       BY: ________________________________
                                           Rick McPherson
                                           State Bar No. 13844500
                                           mcphersonlaw@hotmail.com
                                           Attorney for the State of Texas



                            Certificate of Word Count
     I, the undersigned attorney for the State of Texas, Appellee, certify that
Appellee’s brief contains 3,304 words.


                                       ____________________________________
                                       Rick McPherson


                                         13.
                             Certificate of Service
      A copy of the above and foregoing Brief of Appellee is being provided to all
counsel of record on January 9, 2015 as follows: Kyle Dansby at
kdansbylaw@gmail.com.


                                   ______________________________________
                                   Rick McPherson
                                   Attorney for Appellee




                                       14.
