Opinion filed July 17, 2014




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-12-00118-CR
                                  __________

                      LELA ANN MOONEY, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 42nd District Court
                              Taylor County, Texas
                          Trial Court Cause No. 24804A


                      MEMORANDUM OPINION
       Appellant, Lela Ann Mooney, entered an open plea of “guilty” to the offense
of forgery, a state jail felony. See TEX. PENAL CODE ANN. § 32.21(b), (d) (West
2011). The trial court assessed her punishment at confinement in the State Jail
Division of the Texas Department of Criminal Justice for a term of two years. In a
single issue, Appellant argues that her punishment was “grossly disproportionate to
the offense and therefore, unjust, cruel and unusual based upon [Appellant’s]
crime, her age and her need for rehabilitation” in violation of the Eighth
Amendment of the United States Constitution. See U.S. CONST. amend. VIII. We
affirm.
                                Background Facts
      The indictment alleged that Appellant intentionally and knowingly, with the
intent to harm and defraud another, passed as true a check written on Wells Fargo
Bank, check number 1024, on the account of Miller Trucking. Based on her open
plea of guilty, the trial court found Appellant guilty of the offense of forgery and
sentenced her to two years’ imprisonment.
                                     Analysis
      Appellant argues that her sentence is grossly disproportionate to the offense
and, therefore, constitutes cruel and unusual punishment.       In support of her
argument, Appellant points to the nature of the offense, her age, and her need for
rehabilitation. Appellant also contends that her commission of the forgery was
fueled by her past addiction to methamphetamine.
      In reviewing a trial court’s sentencing determination, “a great deal of
discretion is allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984).      We will not disturb a trial court’s decision as to
punishment absent a showing of abuse of discretion and harm. Id. As a general
rule, punishment is not cruel and unusual if it falls within the range of punishment
established by the legislature. Id.; Dale v. State, 170 S.W.3d 797, 799 (Tex.
App.—Fort Worth 2005, no pet.).       In this cause, Appellant was convicted of a
state jail felony. The statutory range of punishment for a state jail felony is
confinement in a state jail for any term of not more than two years or less than 180
days and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.35(a), (b)


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(West Supp. 2013). Accordingly, Appellant’s two-year sentence is within the
statutory range of punishment.
      A narrow exception to the general rule is recognized when the sentence is
grossly disproportionate to the offense. Harmelin v. Michigan, 501 U.S. 957,
1004–05 (1991) (Kennedy, J., concurring); Solem v. Helm, 463 U.S. 277, 290–92
(1983); Dale, 170 S.W.3d at 799. In such cases, the sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. Solem, 463 U.S.
at 290; Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st
Dist.] 1997, pet. ref’d).   Thus, a prohibition against grossly disproportionate
punishment survives under the Federal Constitution apart from any consideration
of whether the punishment assessed is within the statute’s range. Delacruz v.
State, 167 S.W.3d 904, 906 (Tex. App.—Texarkana 2005, no pet.). However,
“[o]utside the context of capital punishment, successful challenges to the
proportionality of particular sentences [will be] exceedingly rare.” Solem, 463
U.S. at 289–90 (alterations in original) (quoting Rummel v. Estelle, 445 U.S. 263,
272 (1980)).
      In considering a claim that a sentence is disproportionate, we first make a
threshold comparison of the gravity of an appellant’s offense against the severity
of his or her sentence. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992);
Dale, 170 S.W.3d at 799–800. We consider 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 292; Dale, 170 S.W.3d at 800. We also consider the
sentence imposed in light of the offender’s prior adjudicated and unadjudicated
offenses. Culton v. State, 95 S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d); see McGruder, 954 F.2d at 316. Only if we infer that the
sentence is grossly disproportionate to the offense will we then compare the
sentence received to sentences imposed for similar crimes in Texas and sentences
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imposed for the same crime in other jurisdictions. McGruder, 954 F.2d at 316;
Dale, 170 S.W.3d at 800.
      During the punishment phase of the trial, Appellant admitted to the acts
alleged in the indictment and stated that she cashed several checks that she had
stolen. She explained that the checks were written for amounts ranging from $800
to $2,500. Additionally, Appellant pleaded “guilty” to the offense of possession of
a controlled substance and admitted that she possessed four grams of
methamphetamine. Appellant stated that she was thirty-one years old at the time
of trial in this case and that she had been using methamphetamine for almost
twenty years.
      Appellant admitted that she was previously placed on community
supervision for another conviction of forgery through the use of a financial
instrument and that her community supervision was later revoked because she
failed to pay the required restitution and court costs. Appellant explained that the
forged checks in that case were from a closed account in her brother’s name.
      Considering the nature of Appellant’s offense in this cause and considering
the evidence that Appellant committed the charged offense on numerous occasions,
that she also committed a contemporaneous drug offense, and that she had a prior
conviction for forgery, we conclude that her two-year sentence is not grossly
disproportionate to the offense. Because we have concluded that the sentence is
not grossly disproportionate to the offense, we do not compare Appellant’s
sentence to sentences imposed for similar crimes in Texas and sentences imposed
for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Dale, 170
S.W.3d at 800. Appellant’s sole issue is overruled.




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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   JOHN M. BAILEY
                                                   JUSTICE


July 17, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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