                                  NO. 12-12-00065-CR

                         IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

TIMOTHY MARK ROBERTS,                           §           APPEAL FROM THE 173RD
APPELLANT

V.                                              §          JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §          HENDERSON COUNTY, TEXAS

                                     MEMORANDUM OPINION
          Timothy Mark Roberts appeals his conviction for manufacture or delivery of a substance in
Penalty Group 1. In two issues, Appellant argues that the evidence is factually insufficient to
support the verdict and that the sentence is disproportionate. The State did not file a brief. We
affirm.


                                           BACKGROUND
          In January 2011, police officers executed a search warrant at Appellant’s home. Appellant
was present although he was outside the home. Inside the home, the police found ten grams of
methamphetamine under a mattress in the master bedroom. The police also found evidence to
suggest that drugs were being sold from the home. Specifically, the police found baggies and a
digital scale in the same bedroom.
          A Henderson County grand jury indicted Appellant for the offense of simple possession of
methamphetamine in an amount of more than four grams but less than two hundred grams and
manufacture or delivery of the same quantity of methamphetamine.1 Appellant pleaded not guilty,
and a jury trial was held. The jury found Appellant guilty of the more serious manufacture or
delivery charge. Appellant waived trial by jury on the issue of punishment. Prior to trial, the State
alleged that Appellant had two prior sequential felony convictions. The trial court found the
sentencing allegation to be true and assessed a sentence of imprisonment for fifty years. This appeal
followed.


                                           SUFFICIENCY OF THE EVIDENCE
       In his first issue, Appellant argues that the evidence is factually insufficient to show that he
possessed the methamphetamines.
Standard of Review and Applicable Law
       The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct.
2781, 2786–87, 61 L. Ed. 2d 560 (1979); see also Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim.
App. 2010) (plurality opinion). Evidence is not legally sufficient if, when viewing the evidence in a
light most favorable to the verdict, no rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also
Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Under this standard, a reviewing
court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by
reevaluating the weight and credibility of the evidence. See Brooks, 323 S.W.3d at 899; Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a reviewing court defers to the fact
finder’s resolution of conflicting evidence unless that resolution is not rational in light of the burden
of proof. See Brooks, 323 S.W.3d at 899–900. The duty of a reviewing court is to ensure that the
evidence presented actually supports a conclusion that the defendant committed the crime. See
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
       The sufficiency of the evidence is measured against the offense as defined by a hypothetically
correct jury charge.       See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).               A
hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

       1
           The indictment charged Appellant with possession with intent to deliver methamphetamine.
                                                         2
liability, and adequately describes the particular offense for which the defendant is tried.” Id.
         As alleged in the indictment on the charge relevant to this appeal, the State’s evidence had to
show that Appellant possessed a substance in Penalty Group 1 in an amount of more than four grams
but less than two hundred grams with the intent to deliver that controlled substance to another. See
TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010). Methamphetamine is listed in
Penalty Group 1. See id. § 481.102(6) (West 2010).
Analysis
         Appellant challenges the sufficiency 2 of the evidence solely on the issue of possession.
Specifically, he argues that the “State could not show Appellant in possession of any of the alleged
drugs except by the testimony of his wife/co-defendant.” Appellant suggests that we should exclude
his wife’s testimony from our consideration and that what “remains after this evidence is excluded is
a verdict against the great weight and preponderance of the evidence.”
         Appellant’s wife, Jessica Roberts, testified at the trial. When the police arrived, Jessica was
in the master bedroom sitting on the bed. Another man was in the bedroom with her. She testified
that she knew the police were coming because there were monitors in the bedroom that showed a feed
from a surveillance camera on the front of the house. Jessica testified that she was not paying
attention to the monitor but that Appellant, who was outside when the police arrived, said that the
police were there.
         Jessica testified that Appellant and the other man were engaged in a drug transaction in the
bedroom and that Appellant asked her to come watch the drugs while he went out to his car to retrieve
something. Her complicity in the crime makes her an accomplice, 3 but it does not suggest that we

         2
            Appellant invokes factual sufficiency review of the evidence and cites Watson v. State, 204 S.W.3d 404, 414
(Tex. Crim. App. 2006), for the standard of review. The Watson decision was based on the court’s decision in Clewis v.
State, 922 S.W.2d 126 (Tex. Crim. App. 1996). In 2010, the court of criminal appeals overruled the Watson case and
held that the legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979), is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. State, 323
S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will review the evidence under the Jackson
standard. See, e.g., Harris v. State, No. 12-10-00388-CR, 2011 Tex. App. LEXIS 9288, at *2-3 (Tex. App.–Tyler Nov.
23, 2011, no pet. ) (mem. op., not designated for publication).
         3
           Jessica was charged with the same offense. This makes her an accomplice as a matter of law. See Herron v.
State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). It is possible to be merely present at the scene of a crime and not be
an accomplice. See Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998) (“[O]ne is not an accomplice for
knowing about a crime and failing to disclose it, or even concealing it.”).

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may not consider her testimony when considering the sufficiency of the evidence to support
Appellant’s conviction.4           When we review the sufficiency of the evidence, we are obligated to
consider all of the evidence. See Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
The jury had to consider Jessica’s testimony carefully and critically. She had not reached a plea
agreement with the State, but it is possible that a person in her situation would be motivated to provide
the State with helpful testimony or simply to deflect culpability. Additionally, Jessica wrote a letter
shortly after being arrested stating that the drugs belonged to her and that Appellant had “no
knowledge of anything.” Jessica disavowed that letter, saying that she was trying to help Appellant.
Finally, she tested positive for the use of methamphetamine while she was awaiting trial.
         In the end, the jury had to make a credibility determination. It was clear from the evidence
that the bedroom was shared by Appellant. One of his prescriptions was present in the bedroom as
was men’s clothing. The police found marihuana and still more baggies in his Jeep parked outside.
Jessica testified that the drugs belonged to him. The jury’s decision to credit that testimony, in light
of all of the other evidence, is a conclusion that is allowed by the evidence. We overrule Appellant’s
first issue.


                                            PROPORTIONALITY OF THE SENTENCE
         In his second issue, Appellant argues that the sentence of imprisonment for fifty years is cruel
and unusual punishment forbidden by the United States Constitution. Appellant did not raise the
issue of cruel and unusual punishment at trial and has, therefore, failed to preserve this issue for
appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Noland v.
State, 264 S.W.3d 144, 152 (Tex. App.–Houston [1st Dist.] 2007, pet. ref'd); TEX. R. APP. P. 33.1.
Even if Appellant had preserved this issue, he would not prevail because the sentence is not
unconstitutionally harsh.
         The legislature is vested with the power to define crimes and prescribe penalties. See
Contreras v. State, 369 S.W.3d 689, 690 (Tex. App.–Tyler 2012, no pet.); Davis v. State, 905 S.W.2d
655, 664 (Tex. App.–Texarkana 1995, pet. ref'd). Sentences that fall within the limits prescribed by

         4
           By contrast, we do exclude from consideration the testimony of an accomplice when considering whether the
corroboration requirement of Article 38.14, Texas Code of Criminal Procedure has been met. See Castillo v. State, 221
S.W.3d 689, 691 (Tex. Crim. App. 2007). The accomplice witness rule is a statutorily imposed sufficiency review, is not
derived from federal or state constitutional principles that are the basis for the legal sufficiency standards, and is not raised
by Appellant in this appeal. See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).
                                                               4
a valid statute are not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex.
Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d
at 664.
          Appellant was found guilty of a first degree felony offense, and the trial court found that he
had two prior sequential felony convictions. Because the State had pleaded the prior convictions as a
sentencing enhancement, the range of punishment was from twenty-five to ninety-nine years or life in
prison. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2012). Accordingly, the punishment
assessed by the trial court falls well within the range set forth by the legislature and is not cruel,
unusual, or excessive per se.
          Appellant acknowledges that his sentence is within the statutory range but asserts that the
sentence is nevertheless disproportionate and asks us to review the sentence under the test announced
in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under the three-part test
set out in Solem, we evaluate the proportionality of a sentence by considering the gravity of the
offense and the harshness of the penalty, the sentences imposed on others in the same jurisdiction, and
the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at
292, 103 S. Ct. at 3011. 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 L. Ed. 2d 836 (1991), to require a threshold determination that the
sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g.,
McGruder v. Puckett, 954 F.2d 313, 316; see also Jackson v. State, 989 S.W.2d 842, 845-46 (Tex.
App.–Texarkana 1999, no pet.).
          Appellant argues that the sentence is disproportionate because he was not in the home when
the drugs were found and suggests that the trial court should have considered the range of punishment
for a second degree felony. Consideration of the appropriate sentence is a task for the trial court.
We review a sentence to ensure that this is not one of the “exceedingly rare” and “extreme” cases
where a sentence is grossly disproportionate to the crime. See Lockyer v. Andrade, 538 U.S. 63, 72,
123 S. Ct. 1166, 1173, 155 L. Ed. 2d 144 (2003).
          Appellant had three prior felony convictions for narcotics offenses, had been to prison twice,
and was on parole for possession of a controlled substance on the day he was arrested for this offense.
Appellant has not adduced any evidence of the sentence imposed on individuals who have committed

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similar crimes. In light of the offense committed and Appellant’s criminal history, the fifty year
sentence, while weighty, is not grossly disproportionate. We overrule Appellant’s second issue.


                                                          DISPOSITION
         Having overruled Appellant’s two issues, we affirm the judgment of the trial court.


                                                                    JAMES T. WORTHEN
                                                                      Chief Justice


Opinion delivered May 22, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)



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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                              MAY 22, 2013


                                         NO. 12-12-00065-CR


                                  TIMOTHY MARK ROBERTS,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                            Appeal from the 173rd Judicial District Court
                        of Henderson County, Texas. (Tr.Ct.No. C-18,475)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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