                                  NO. 12-17-00064-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JAMIE LEE JARAMIELLO,                           §      APPEAL FROM THE 349TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Appellant, Jamie Lee Jaramiello, appeals from her conviction for possession of a
controlled substance. In two issues, Appellant contends the evidence is insufficient to support
her conviction and that the sentence imposed is grossly disproportionate to the severity of the
offense and therefore cruel and unusual. We affirm.


                                         BACKGROUND
       During a temporary stop, Appellant identified herself to Sergeant Matthew Kerr of the
Palestine Police Department. Police dispatch notified Sergeant Kerr that Appellant was a suspect
in a theft of two cellular telephones. In questioning Appellant, Sergeant Kerr determined that the
iPhone in her possession was one of the stolen phones. Sergeant Kerr placed Appellant under
arrest, and proceeded to search her handbag for the second cell phone.
       In the bag, Sergeant Kerr first saw a glass marijuana pipe. He then discovered Seroquel
pills, Xanax, two unidentified pink pills, one used syringe, two unused syringes, and Appellant’s
wallet. Inside Appellant’s wallet, Sergeant Kerr discovered a plastic bag containing what he
believed to be methamphetamine. Laboratory analysis confirmed the plastic bag contained .3
grams of methamphetamine.
         During Sergeant Kerr’s search of Appellant’s bag, but before the discovery of the
methamphetamine, Appellant began yelling to her husband to take responsibility for his
belongings and that he “can take the charges.” Appellant first told Sergeant Kerr that she did not
even know where to buy drugs. Later, she gave Sergeant Kerr the name of a known drug dealer
and offered to buy methamphetamine for the police.
         A jury found Appellant guilty of possession of less than one gram of a penalty group one
controlled substance. The trial court assessed her punishment at twenty one months in the Texas
Department of Corrections, State Jail Division. This appeal followed.


                                   EVIDENTIARY SUFFICIENCY
         In her first issue, Appellant contends that the evidence is insufficient to support her
conviction.
Standard of Review
         In reviewing the sufficiency of the evidence to support a conviction, appellate courts
view all of the evidence in the light most favorable to the verdict in order to determine whether
any rational trier of fact could have found all the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. crim. App. 2010). “All of the evidence”
includes evidence that was properly and improperly admitted. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
         The jury is the sole judge of the witnesses’ credibility and the weight to be given their
testimony. Brooks, 323 S.W.3d at 899. We give deference to the jury’s responsibility to fairly
resolve evidentiary conflicts, weigh the evidence, and draw reasonable inferences from basic
facts to ultimate facts.     Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Circumstantial evidence is as probative as direct evidence in establishing the accused’s guilt. Id.
Applicable Law
         The Texas Health and Safety Code provides, in relevant part, “a person commits an
offense if the person knowingly or intentionally possesses a controlled substance listed in
Penalty Group 1.”      TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2017).
Methamphetamine is a controlled substance listed in Penalty Group 1. Id. § 481.102(6) (West
2017).



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       To prove unlawful possession of a controlled substance, the State must prove the accused
(1) exercised care, custody, control, or management over the contraband, and (2) knew the matter
was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). This
evidence, whether direct or circumstantial, must establish that the accused’s connection with the
drug was more than just fortuitous. Id. at 405-06.
       If the controlled substance can be seen and measured, the amount is sufficient to establish
that the accused knew it was a controlled substance. Victor v. State, 995 S.W.2d 216, 220 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d). If the quantity is so small that it cannot be
quantitatively measured, there must be evidence other than its mere possession to prove that the
accused knew that the substance in his possession was a controlled substance. Shults v. State,
575 S.W.2d 29, 30 (Tex. Crim. App. 1979). Texas courts have recognized several factors which
may singly or in combination, circumstantially establish knowing possession. See, e.g., Evans v.
State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (a non-exclusive list of 14 factors that
may link a defendant to the drugs).      Among those factors are (1) whether the defendant
possessed other contraband when arrested, (2) whether drug paraphernalia was present, and (3)
whether the conduct of the defendant indicated consciousness of guilt. Id. It is the logical force
of all the evidence, not merely the number of links, that should determine whether the
defendant’s connection to the contraband is knowing and intentional. Id.
Discussion
       Sergeant Kerr found methamphetamine inside Appellant’s wallet. The wallet was inside
Appellant’s purse or handbag. Sergeant Kerr also found drug paraphernalia inside the purse,
including three syringes and a marijuana pipe. If more proof were needed, Appellant’s guilty
conduct during and after the search shows her connection to the drug was not merely fortuitous,
but knowing and intentional. Before Sergeant Kerr’s discovery of the methamphetamine she
began telling her husband to take responsibility for his belongings. After the drugs’ discovery,
she said they were not hers. She claimed she did not even know where to buy drugs. Later she
suggested she might buy drugs for the police.
       Viewing the evidence in the light most favorable to the verdict, we conclude that the
evidence, direct and circumstantial, coupled with the reasonable inferences drawn from that
evidence, was sufficient for a rational trier of fact to have found beyond a reasonable doubt that
Appellant possessed the methamphetamine, knowing it was contraband. See Jackson, 443 U.S.



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at 319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d at 912; Hooper, 214 S.W.3d at 13; TEX.
HEALTH & SAFETY CODE ANN. § 481.115(a), (b). Therefore, the evidence is sufficient to sustain
her conviction. Appellant’s first issue is overruled.


                          CRUEL, UNUSUAL OR EXCESSIVE PUNISHMENT
       In her second issue, Appellant complains that her punishment “was disproportionate to
the facts of the case” and therefore cruel and unusual.
Applicable Law
       “Throughout this century, the Eighth Amendment has been read to preclude a sentence
that is greatly disproportionate to the offense, because such sentences are ‘cruel and unusual.’”
McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992). A proportionality analysis under the
Eighth Amendment is guided by consideration of (1) the gravity of the offense and the harshness
of the penalty, (2) the sentences imposed for other crimes in the jurisdiction, and (3) the
sentences imposed for the same crime in other jurisdictions. Solem v. Helm, 463 U.S. 277, 292,
103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983). Only if we find that the sentence is grossly
disproportionate to the sentence will we then consider the remaining factors of the Solem test
and compare the sentence received to sentences for other crimes in the same jurisdiction and to
sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316. “A sentence is
grossly disproportionate to the crime only when an objective comparison of the gravity of the
offense against the severity of the sentence reveals the sentence to be extreme.” Harris v. State,
204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d.). “Subject only to a very
limited,   ‘exceedingly    rare,’   and   somewhat        amorphous   Eighth   Amendment    gross
disproportionality review, a punishment that falls within the legislatively prescribed range, and
that is based upon the sentencer’s informed normative judgment, is unassailable on appeal.” Ex
parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006).
       Possession of a Controlled Substance in Penalty Group One in an amount less than one
gram is a state jail felony with a range of punishment of 180 days to two years in the Texas
Department of Criminal Justice—State Jail Division. TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(a), (b); TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 2016).




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Discussion
       In this case, the trial court sentenced Appellant to twenty one months in TDCJ—State Jail
Division. At sentencing, the trial judge was informed that Appellant had several misdemeanor
theft convictions and one state jail felony conviction. Appellant did not object to her sentence as
cruel and unusual or disproportionate nor did she complain on this basis in a motion for new
trial. Claims of cruel and unusual punishment must be presented in a timely manner. See
Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983); Williams v. State, 191 S.W.3d
242, 262 (Tex. App.—Austin 2006, no pet.); Steadman v. State, 160 S.W.3d 582, 586 (Tex.
App.—Waco 2005, pet. ref’d); Nicholas v. State, 56 S.W.3d 760, 763 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d). Appellant has failed to preserve her Eighth Amendment complaint
for appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)
(waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497
(Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); see
also TEX R. APP. P. 33.1; Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009)
(“Preservation of error is a systemic requirement that a first-level appellate court should
ordinarily review on its own motion[;] ... it [is] incumbent upon the [c]ourt itself to take up error
preservation as a threshold issue[]”).
       Even if Appellant had preserved error, her Eighth Amendment challenge could not
prevail. Appellant concedes her sentence is within the statutory range. See TEX. PENAL CODE
ANN. § 12.35(a). Courts have repeatedly held that punishment which falls within the limits
prescribed by a valid statute is 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 v. State, 905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref’d). Appellant
possessed only a very small amount of methamphetamine.              However, the penalty ranges
prescribed for possession of varying amounts of methamphetamine reflect the legislature’s intent
to make the punishment fit the crime by graduating the length of sentences according to the
amount possessed. See TEX. PENAL CODE ANN. § 481.115 (West 2017).
       Moreover, in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980),
the Supreme Court addressed the proportionality claim of an appellant who had received a
mandatory life sentence under a prior version of the Texas habitual offender statute for a
conviction of obtaining $120.75 by false pretenses. See Rummel, 445 U.S. at 266, 100 S. Ct. at



                                                 5
1135.     A life sentence was imposed because the appellant also had two prior felony
convictions—one for fraudulent use of a credit card to obtain $80.00 worth of goods or services
and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 265-66, 100 S.
Ct. at 1134–35. After recognizing the legislative prerogative to classify offenses as felonies and,
further, considering the purpose of the habitual offender statute, the court determined that the
appellant’s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445
U.S. at 284-85, 100 S. Ct. at 1144-45.
         In the case at hand, Appellant’s twenty-one month sentence is far less severe than the life
sentence upheld by the Supreme Court in Rummel. Thus, it is reasonable to conclude that if the
sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence
assessed against Appellant in the present case. Therefore, since the threshold test has not been
satisfied, we need not apply the remaining elements of the Solem test. See McGruder, 954 F.2d
at 316; see also Jackson v. State, 989 S.W.2d 842, 845–46 (Tex. App.–Texarkana 1999, no pet.).
Considering Appellant’s criminal history and comparing Appellant’s offense with the twenty-one
month sentence imposed, we conclude the sentence was not grossly disproportionate to the
offense. Because Appellant’s sentence was not cruel or unusual, her second issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant two issues, the judgment of the trial court is affirmed.

                                                                                BILL BASS
                                                                                 Justice



Opinion delivered August 9, 2017.
Panel consisted of Hoyle, J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                            AUGUST 9, 2017


                                          NO. 12-17-00064-CR


                                    JAMIE LEE JARAMIELLO,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 349th District Court
                    of Anderson County, Texas (Tr.Ct.No. 349CR-15-32254)

                        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.
                    Bill Bass, Justice.
                    Panel consisted of Hoyle, J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
