                                                                            ACCEPTED
                                                                        12-15-00077-CR
                                                           TWELFTH COURT OF APPEALS
                                                                         TYLER, TEXAS
                                                                   8/5/2015 11:40:00 PM
                                                                          CATHY LUSK
                                                                                 CLERK

             NUMBER 12-15-00077-CR

  IN THE TWELFTH DISTRICT COURT OF APPEALS     FILED IN
                                        12th COURT OF APPEALS
                TYLER, TEXAS                 TYLER, TEXAS
                                               8/5/2015 11:40:00 PM
                                                    CATHY S. LUSK
                                                        Clerk
             ROXANNE YVETTE DAVIS,
                   Appellant
                       v.
              THE STATE OF TEXAS,
                    Appellee

From the 241st District Court of Smith County, Texas
         Trial Cause Number 241-1149-14

                 STATE’S BRIEF

        ORAL ARGUMENT NOT REQUESTED

               D. MATT BINGHAM
            Criminal District Attorney
               Smith County, Texas

                  AARON REDIKER
             Assistant District Attorney
        State Bar of Texas Number 24046692
        Smith County Courthouse, 4th Floor
                 Tyler, Texas 75702
               Phone: (903) 590-1720
                Fax: (903) 590-1719
        Email: arediker@smith-county.com
                                                       Table of Contents


Index of Authorities ............................................................................................................ 2


Statement of Facts............................................................................................................... 3


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


I.ISSUES ONE AND TWO: By not objecting to her sixteen-month sentence for state jail
felony theft as cruel and unusual, appellant failed to preserve any alleged error for
review. ................................................................................................................................... 5
Standard of Review ............................................................................................................. 5
Argument.............................................................................................................................. 6


Certificate of Compliance ................................................................................................ 10


Certificate of Service ........................................................................................................ 10




                                                                     1
                                                   INDEX OF AUTHORITIES


Constitutional Provisions
U.S. CONST. amend. VIII ....................................................................................................... 6
U.S. CONST. amend. XIV ....................................................................................................... 6


Federal Cases
Harmelin v. Michigan, 501 U.S. 957 (1991) ......................................................................... 6
McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992).............................................................. 6
Smallwood v. Scott, 73 F.3d 1343 (5th Cir. 1996) ................................................................ 8
Solem v. Helm, 463 U.S. 277 (1983) ...................................................................................... 5


Texas Cases
Buster v. State, 144 S.W.3d 71 (Tex. App.—Tyler 2004, no pet.) ..................................... 7
Curry v. State, 910 S.W.2d 490 (Tex. Crim. App. 1995) ..................................................... 7
Davis v. State, 119 S.W.3d 359 (Tex. App.—Waco 2003, pet. ref’d) ................................. 7
Davis v. State, 905 S.W.2d 655 (Tex. App.—Texarkana 1995, pet. ref'd) ........................ 5
Jackson v. State, 989 S.W.2d 842 (Tex. App.—Texarkana 1999, no pet.) ........................ 6
Jacobs v. State, 80 S.W.3d 631 (Tex. App.—Tyler 2002, no pet.) .................................. 7, 8
Lackey v. State, 881 S.W.2d 418 (Tex. App.—Dallas 1994, pet. ref’d) .............................. 8
Simmons v. State, 944 S.W.2d 11 (Tex. App.—Tyler 1996, pet. ref’d) ..................... 5, 6, 8


Texas Statutes
Tex. Code Crim. Proc. Ann. art. 1.09 ................................................................................. 6
Tex. Penal Code Ann. § 12.35 ............................................................................................. 7
Tex. Penal Code Ann. § 31.03 ............................................................................................. 7


Texas Rules
Tex. R. App. P. 33.1 ............................................................................................................... 7


                                                                  2
                             NUMBER 12-15-00077-CR

                   IN THE TWELFTH DISTRICT COURT OF APPEALS
                                 TYLER, TEXAS

                             ROXANNE YVETTE DAVIS,
                                   Appellant
                                       v.
                              THE STATE OF TEXAS,
                                    Appellee

               From the 241st District Court of Smith County, Texas
                        Trial Cause Number 241-1149-14

                                  STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant

Criminal District Attorney, respectfully requesting that this Court overrule

appellant’s alleged issues and affirm the judgment of the trial court in the above-

captioned cause.


                                 STATEMENT OF FACTS

   Appellant, with her counsel, entered a nonnegotiated plea of guilty to the

offense of state jail felony theft as charged in the indictment (I Rep.’s R. at 4, 13;



                                          3
Clerk’s R. at 1). After accepting appellant’s plea of guilty and hearing evidence on

the issue of punishment, including testimony regarding her extensive criminal

history of more than twenty-three prior convictions1 (II Rep.’s R. at 38), the trial

court sentenced her to confinement for sixteen months in the Texas Department

of Criminal Justice—State Jail Division without a fine (Id. at 76). Appellant raised

no objection to her sentence at the time of formal pronouncement and did not file

a motion for new trial (Id. at 76, 79).


                                SUMMARY OF ARGUMENT

    Appellant forfeited any challenge to her sentence of sixteen months for state

jail felony theft as cruel and unusual by failing to raise an objection in the trial

court. Even had appellant preserved the alleged error, her sentence was not

grossly disproportionate to the offense she committed, especially in light of her

extensive criminal history.




1
 During the plea and sentencing hearing, appellant acknowledged that she had eleven prior
felony convictions and twelve prior misdemeanor convictions, many of which were for theft
offenses (II Rep.’s R. at 38).


                                           4
I. ISSUES ONE AND TWO: By not objecting to her sixteen-month sentence for state
jail felony theft as cruel and unusual, appellant failed to preserve any alleged error
for review.


                                 STANDARD OF REVIEW

   “The legislature is vested with the power to define crimes and prescribe

penalties.” Contreras v. State, 369 S.W.3d 689, 690 (Tex. App.—Tyler 2012, no pet.)

(mem. op.) (citing Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, 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.” Simmons v. State,

944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d). Under the Solem 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.” Contreras, 369 S.W.3d at 690 (citing Solem

v. Helm, 463 U.S. 277, 292 (1983)). “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 Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115

                                          5
L. Ed. 2d 836 (1991) to require a threshold determination that the sentence is

grossly disproportionate to the crime before addressing the remaining elements.”

Id. (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Jackson v. State, 989

S.W.2d 842, 845-46 (Tex. App.—Texarkana 1999, no pet.)).


                                        ARGUMENT

    In her two alleged issues, appellant argues that her sixteen-month sentence for

state jail felony theft constitutes cruel and unusual punishment in violation of the

Eighth and Fourteenth Amendments to the United States Constitution and article

1.09 of the Texas Code of Criminal Procedure 2 (Appellant’s Br. 5). U.S. CONST.

amends. VIII, XIV; Tex. Code Crim. Proc. Ann. art. 1.09 (West 2014). However,

appellant did not object to her sentence at trial as cruel and unusual or raise the

issue in a motion for new trial (II Rep.’s R. at 76, 79). As appellant did not timely

object to her sentence as constituting cruel or unusual punishment, she failed to

preserve any alleged error for review, and her first and second issues should be



2
 As appellant cites no authority requiring this Court to analyze her claims differently under
federal or Texas law, they will be addressed together. Simmons, 944 S.W.2d at 14.


                                             6
overruled. Tex. R. App. P. 33.1(a); Contreras, 369 S.W.3d at 690 (citing Curry v. State,

910 S.W.2d 490, 497 (Tex. Crim. App. 1995)).

   Even if appellant had not forfeited her claim, her sixteen-month sentence is not

grossly disproportionate to the offense to which she pleaded guilty, stealing a

purse valued at less than $ 1,500 where appellant had been previously convicted

two or more times of theft, a state jail felony (Clerk’s R. at 1). See Tex. Penal Code

Ann. § 31.03(e)(4)(D) (West 2014). Appellant’s sentence of confinement for sixteen

months in the Texas Department of Criminal Justice—State Jail Division without a

fine was well within the range set for forth by the legislature for a state jail felony,

and therefore, “the punishment is not prohibited as cruel, unusual or excessive per

se.” Jacobs v. State, 80 S.W.3d 631, 633 (Tex. App.—Tyler 2002, no pet.); Tex. Penal

Code Ann. § 12.35(a), (b) (West 2014). “In determining whether a sentence is

grossly disproportionate, we consider not only the present offense but also an

accused's criminal history.” Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004,

no pet.) (citing Davis v. State, 119 S.W.3d 359, 363 (Tex. App.—Waco 2003, pet. ref’d)).

Appellant’s punishment assessed falls well within the permissible range, and when


                                           7
viewed in light of her extensive criminal history of twenty-three prior convictions,

is not grossly disproportionate to the offense she committed. See Smallwood v. Scott,

73 F.3d 1343, 1348 (5th Cir. 1996) (fifty-year sentence under recidivist statute for

stealing $27.64 in meat not grossly disproportionate based on defendant’s criminal

history); Lackey v. State, 881 S.W.2d 418, 420 (Tex. App.—Dallas 1994, pet. ref’d)

(sentence of thirty-five years under recidivist statute for shoplifting clothing

valued at $145 not cruel and unusual punishment); Simmons, 944 S.W.2d at 15

(sentence of fifty years’ confinement and $5,000 for delivery of cocaine not grossly

disproportionate considering the defendant’s criminal history). Even assuming

that the threshold test for gross disproportionality was met, the remaining

elements of the Solem cannot be satisfied: “[t]here is no evidence in the appellate

record reflecting the sentences imposed on criminals in Texas or other

jurisdictions who committed a similar offense; therefore, we may not engage in a

comparative evaluation.” Jacobs, 80 S.W.3d at 633 (citing Simmons, 944 S.W.2d at 15).




                                         8
                                     PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court

overrule appellant’s alleged issues and affirm the judgment of the 241st District

Court of Smith County, Texas, in the above-captioned cause.

                                            Respectfully submitted,

                                            D. MATT BINGHAM
                                            Criminal District Attorney
                                            Smith County, Texas

                                            /s/ Aaron Rediker
                                            Aaron Rediker
                                            Assistant District Attorney
                                            SBOT #: 24046692
                                            100 North Broadway, 4th Floor
                                            Tyler, Texas 75702
                                            Office: (903) 590-1720
                                            Fax: (903) 590-1719 (fax)
                                            arediker@smith-county.com




                                        9
                             CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

attorney certifies that the word count for this document is 1,082 words as

calculated by Microsoft Word 2013.

                                               /s/ Aaron Rediker
                                               Aaron Rediker


                                 CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 5th day of August 2015, the State’s

Brief in the above-numbered cause has been electronically filed, and a legible copy

of the State's Brief has been sent by email to J. Brandt Thorson, attorney for

appellant, at jbt@jbtfirm.com.

                                               /s/ Aaron Rediker
                                               Aaron Rediker




                                          10
