                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00161-CR
        ______________________________


           DEVIN ERIC MIMS, Appellant

                         V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 124th Judicial District Court
                Gregg County, Texas
              Trial Court No. 38009-B




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                 MEMORANDUM OPINION

       Devin Eric Mims claims error in sentencing by the trial court on a charge of theft, a class C

misdemeanor, enhanced by two prior theft convictions. Sentence was imposed in accordance

with Section 31.03(e)(4)(D) of the Texas Penal Code for a state-jail felony term of two years’

confinement. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (Vernon Supp. 2009).

       Mims complains that (1) the State impermissibly enhanced punishment with a prior theft

conviction, when the same prior conviction was used to enhance punishment on a different theft

charge, in violation of the Double Jeopardy Clause of the United States Constitution, the Texas

Constitution, and the Texas Code of Criminal Procedure, and (2) the trial court erred in failing to

consider the full range of punishment in a context that violates his due process rights and

implicates the Eighth Amendment protection against cruel and unusual punishment.

       We addressed these issues in detail in our opinion of this date on Mims’ appeal in cause

number 06-09-00160-CR. For the reasons stated therein, we likewise conclude that error has not

been shown in this case.

       We affirm the trial court’s judgment.




                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:       February 16, 2010
Date Decided:         March 9, 2010




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