                                                                              ACCEPTED
                                                                          06-15-00004-CR
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     7/23/2015 4:11:40 PM
                                                                         DEBBIE AUTREY
                                                                                   CLERK

                NO. 06 – 15 -- 00004 – CR

                                                        FILED IN
                                                 6th COURT OF APPEALS
     IN THE SIXTH DISTRICT COURT OF                TEXARKANA, TEXAS
                                             APPEALS
                TEXARKANA, TEXAS                 7/23/2015 4:11:40 PM
                                                     DEBBIE AUTREY
                                                         Clerk

                       LESLIE LEE

                              Appellant,

                             v.

                 THE STATE OF TEXAS

                                  Appellee


On appeal from the 188TH District Court, Gregg County, Texas
              Trial Court Case No. 42,954-A


           BRIEF OF THE STATE OF TEXAS


      – ORAL ARGUMENT NOT REQUESTED –

                          CARL L. DORROUGH
                          District Attorney

                          Zan Colson Brown
                          Texas Bar No. 03205900
                          Assistant District Attorney
                          Gregg County, Texas
                          101 East Methvin St., Suite 333
                          Longview, Texas 75601
                          Telephone: (903) 236–8440
                          Facsimile: (903) 236–3701
                                     TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................1
INDEX OF AUTHORITIES ...................................................................................2

SUMMARY OF THE ARGUMENT .....................................................................4

ARGUMENT ............................................................................................................5
   1) The issue of disproportionate sentence/ Eighth Amendment
         violation was not preserved. .......................................................................5

   2) The sentence was not excessive.......................................................................5
           A.     The sentence does not constitute cruel or unusual
                  punishment.............................................................................................5
           B.     The Sentence is not disproportionate ....................................................6

PRAYER ...................................................................................................................9
CERTIFICATE OF SERVICE ..............................................................................9
CERTIFICATE OF COMPLIANCE……………………………….................10




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                                        INDEX OF AUTHORITIES


Federal Cases
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 , 115 L. Ed. 2d 836 ..............6
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 121
  L. Ed. 2d 98, 113 S. Ct. 146 (1992 ..................................................................7, 8
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 3006 , 77 L. Ed. 2d 637 (1983) ..6, 8

State Cases
Dunn v. State, 997 S.W.2d 885, 891-9 (Tex. App.--Waco 1999) pet. ref'd ..............7
Harris v. State, 656 S.W.2d 481, (Tex. Crim. App. 1983); .......................................6
Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997)……………….5
Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet.
   ref'd) .....................................................................................................................7
Jackson v. State, 989 S.W.2d 842 846 (Tex. App.—Texarkana 1999, no pet.) 5, 6, 7
Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.--Dallas 1994, pet. ref'd.) ............7
Mathews v. State, 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996) pet. ref'd .....7
McNew v. State, 608 S.W.2d 166 (Tex. Crim. App. 1978) .......................................6
Moore v. State, 54 S.W.3d 529 (Tex. App.—Fort Worth 2001, pet. ref'd) ...........6, 8
Price v. State, 35 S.W.3d 136, 144 (Tex. App.--Waco 2000) pet. ref'd (op. on
    reh'g) ....................................................................................................................6
Puga v. State, 916 S.W.2d 547 (Tex. App.--San Antonio 1996) ..............................7
Richardson v. State, 328 S.W.3d 61 (Tex. App.—Fort Worth 2010, pet. ref'd) .......5
State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973 ..........6

State Statutes
Tex. Pen. Code Ann. § 31.03 (Vernon) .....................................................................5

State Rules
Tex. R. App. P. 33.1...................................................................................................5


                                                               2
                           STATEMENT OF FACTS

      WalMart loss-prevention associate Syzette Sparks, On December 4, 2012,

observed Leslie Lee remove UPC labels from less expensive merchandise and

place them on more expensive items. SX 2, Officer Bagley’s initial report, pages 4-

5 of 5.   Sparks recognized Lee from a prior shoplifting incident at another store

location and watched her as she added the fraudulent UPC labels on top of the

actual UPC labels, checked herself out, passed all points of sale and exited the

store. SX 2, Det. Shirley’s Supplemental Report, page 6 of 6. Lee left the location

in a white 2008 Dodge Charger, which was registered to Lee’s mother. SX2,

Supplemental Report, page 1 of 6.       The items taken, valued at $111.74, were

recovered and released to WalMart.        SX 2 Supplemental Report, at 2 of 6.

WalMart provided to police two receipts (one of the actual cost of the items, and

one for the items with bogus UPC labels totaling $6.41), Sparks’ written statement,

and pictures of the items and the UPC labels. SX2.

      Lee had two prior, misdemeanor theft convictions, in 2006 and 2010. A

grand jury indicted Lee on September 12, 2013, for “theft; habitual.” She pleaded

guilty on October 8, 2014, when the Court learned she had been on parole for

felony DWI since 2009. The Court denied her request for probation and sentenced

her to six months in state jail. A motion for new trial was overruled by operation of

law. This appeal ensued.

                                          3
                             SUMMARY OF THE ARGUMENT

1)    Appellant did not raise the issue of disproportionality of his sentence at his

trial or in his motion for new trial. She has thus waived her right to raise it on

appeal.

2)    Appellant’s sentence was within the statutorily prescribed boundaries and

was not cruel and unusual punishment; nor was it grossly disproportionate to the

offense of habitual theft.




                                         4
                                  ARGUMENT


1) The issue of disproportionate sentence/ Eighth Amendment violation was
   not preserved.
   To preserve error for appellate review, a defendant must make a timely, specific

objection and obtain a ruling from the trial court. TEX. R. APP. P. 33.1. This

requirement applies even to assertions that a sentence is cruel and unusual.

Richardson v. State, 328 S.W.3d 61, 72 (Tex. App.—Fort Worth 2010, pet. ref'd)

(citing Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997); Jackson

v. State, 989 S.W.2d 842, 844 n.3 (Tex. App.—Texarkana 1999, no pet.).

   The record contains no mention that the trial court was made aware of Lee’s

complaint. Although Lee filed a generalized motion for new trial, it failed to assert

the issue of cruel and unusual punishment.


2) The sentence was not excessive.

      A. The sentence does not constitute cruel or unusual punishment.

      Appellant was sentenced to six months’ confinement in a state jail facility

for theft-habitual. CR 25. The statutory punishment range for a conviction of

habitual theft is from six months to two years in state jail. Tex. Pen. Code Ann. §

31.03 (Vernon)(e) (4) (D). This sentence was the minimum within the statutorily

permitted range.




                                          5
        The length of a criminal sentence is purely a matter of legislative

prerogative. Harmelin v. Michigan, 501 U.S. 957, 962, 111 S. Ct. 2680, 2684, 115

L. Ed. 2d 836 (1991); State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex.

Crim. App. 1973). Texas has long held that any punishment assessed within the

range that is authorized by statute is not cruel and unusual punishment, and does

not render the sentence excessive. See, e.g., Harris v. State, 656 S.W.2d 481, 486

(Tex. Crim. App. 1983); Price v. State, 35 S.W.3d 136, 144 (Tex. App.--Waco

2000) pet. ref'd (op. on reh'g); Moore v. State, 54 S.W.3d 529 (Tex. App. – Fort

Worth 2001) pet. ref'd); McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App.

1978); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no

pet.)

        B. The Sentence is not disproportionate

        In 1983, the United States Supreme Court affirmatively held that the Eighth

Amendment prohibited “disproportionate” prison sentences. Solem v. Helm, 463

U.S. 277, 284, 103 S. Ct. 3001, 3006, 77 L. Ed. 2d 637 (1983) (recognizing that

“the final clause [of the Eighth Amendment] prohibits not only barbaric

punishments, but also sentences that are disproportionate to the crime committed”).

The Supreme Court identified three criteria to be used to evaluate the

proportionality of a particular sentence. Id. at 292, 103 S. Ct. at 3011. They are

“the gravity of the offense and the harshness of the penalty; . . . the sentences



                                         6
imposed on other criminals in the same jurisdiction; and . . . the sentences imposed

for commission of the same crime in other jurisdictions.” Id.

      As case-law developed, the Fifth Circuit concluded that “disproportionality

survives; Solem does not.” McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992)

cert. denied, 506 U.S. 849, 121 L. Ed. 2d 98, 113 S. Ct. 146 (1992). The Fifth

Circuit applied a modified Solem test adopted by Justice Kennedy of the United

State’s Supreme Court. Id. That is, the court initially made a threshold comparison

of the gravity of the offense against the severity of the sentence. Id. Only upon a

determination that the sentence is grossly disproportionate to the offense would the

court consider the remaining Solem factors. Id.

      Many appellate courts have followed and applied the Fifth Circuit’s

McGruder analysis in addressing Eighth Amendment proportionality complaints.

Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref'd); 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.;

Mathews v. State, 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996) pet. ref'd;

Puga v. State, 916 S.W.2d 547, 549-50 (Tex. App.--San Antonio 1996) no pet.;

Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.--Dallas 1994, pet. ref'd.)

      Thus, the first step is to make a threshold comparison of the gravity of the

offense against the severity of the sentence. Solem, 463 U.S. at 291-92, 103 S. Ct.



                                         7
at 3010; McGruder, 954 F.2d at 316. A reviewing court is to judge the gravity of

the offense in light of the harm caused or threatened to the victim or society, and

the culpability of the offender. Solem, 463 U.S. at 291-92, 103 S. Ct. at 3010.

         Here, Appellant was found guilty of theft of items worth $111.74 from

WalMart. SX 2. The harm to the victim and to the public and to society is based

not so much on the victim’s loss (all items were recovered and returned to the

victim) as on the repeated behaviors of the thief and the cost to the victim and its

other customers who pay increased prices to cover the costs of preventing thefts

and replacing stolen items. The Appellant’s culpability was decided by her guilty

plea; she admitted she is to blame for her behavior. Appellant’s punishment is

within the range of punishment assessable for the offense—at the lowest end of the

range.     Moore, 54 S.W.3d, 543. Comparing the gravity of appellant’s offense

(including her prior, jurisdictional offenses) to the severity of her sentence, it is not

grossly disproportionate. Appellant’s point of error should be overruled.

         In the event that the Court should find this sentence grossly disproportionate,

Appellant’s contention must fail on the second and third prongs of the Solem test.

Appellant has presented no evidence that her sentence is disproportionate when

compared to sentences for the same crime in this jurisdiction and no evidence that

the sentence is disproportionate when compared to the sentences from other

jurisdictions. Solem at 292. Appellant’s point of error should be overruled.



                                            8
                                    PRAYER

      The State prays that the sentence be affirmed because the appellant has

failed to preserve error and failed to prove that her sentence was excessive,

violated the 8th Amendment, or was grossly disproportionate to her offenses.


                                      Respectfully Submitted,


                                      CARL L. DORROUGH
                                      Criminal District Attorney
                                      Gregg County, Texas

                                      By : /s/Zan Colson Brown
                                      Zan Colson Brown
                                      Texas Bar No. 03205900
                                      Assistant District Attorney
                                      101 East Methvin St., Suite 333
                                      Longview, TX 75601
                                      Telephone: (903) 236–8440
                                      Facsimile: (903) 236–3701


                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been
forwarded to appellate counsel by electronic transmission through E-file Texas to
      Clement Dunn
      140 E. Tyler, Suite 240
      Longview, Texas 75601
      clementdunn@aol.com

This 23rd day of July, 2015.

                                             /s/ Zan Colson Brown___
                                             Zan Colson Brown
                                             Assistant District Attorney

                                         9
                    CERTIFICATE OF COMPLIANCE


      I certify that the foregoing document complies with Texas Rules of
Appellate Procedure, Rule 9 (2013) regarding length of documents, in that
exclusive of caption, identify of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix, it
consists of 1316 words.


                                               /S/Zan Colson Brown
                                               Zan Colson Brown
                                               Assistant District Attorney




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