                                  NO. 07-07-0103-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                  APRIL 24, 2008
                         ______________________________

           DAVID RICKIE STEEN AKA DAVID RICKY STEEN, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                 NO. 54,399-B; HONORABLE JOHN BOARD, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, David Ricky Steen, appeals his sentence of seven years in the

Institutional Division of the Texas Department of Criminal Justice. We affirm.


                                      Background


      Appellant was arrested for stealing meat from a local supermarket valued at

approximately $31. However, because of previous theft convictions, appellant’s indictment

was for a state jail felony theft. Additionally, the charged offense was enhanced by two
prior felony convictions raising the punishment range to that of a third degree felony.

Appellant pled guilty to the charged offense and pled true to the two enhancements.

Appellant also chose to have the trial court judge assess punishment rather than to elect

to have a jury assess punishment; after the presentation of evidence, the trial court

assessed a sentence of seven years confinement in the Institutional Division of the Texas

Department of Criminal Justice.


       Appellant now seeks to appeal the sentence contending that the sentence is cruel

and unusual punishment in violation of the Eighth Amendment of the United States

Constitution and Article I, § 13 of the Texas Constitution because the assessed

punishment is grossly disproportionate to the crime committed.1 We affirm.


                                     Law and Analysis


       Our proportionality analysis under both the Eighth Amendment to the United States

Constitution and Article I, § 13 of the Texas Constitution is guided by (1) the gravity of the

offense and the harshness of the penalty; (2) the sentences imposed on other criminals

in the same jurisdiction; and (3) the sentences imposed for commission of the same crime

in other jurisdictions. See Alberto v. State, 100 S.W.3d 528, 530 (Tex.App.–Texarkana

2003, no pet.). However, we first conduct a threshold comparison of the gravity of the


       1
         Although appellant raises multiple issues of cruel and unusual punishment within
the Eight Amendment and Article I, § 13 of the Texas Constitution, a close reading of his
brief reveals that appellant is actually only contesting the issue of the length of punishment
for the crime committed, i.e., a proportionality complaint. The Eighth Amendment’s
prohibition to cruel and unusual punishment relates to forms of punishment which is
determined without reference to any particular offense. See Harmelin v. Michigan, 501
U.S. 957, 978, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

                                              2
offense underlying the current conviction as well as the offenses underlying the prior

convictions against the severity of the sentence. See Winchester v. State, 246 S.W.3d

386, 389 (Tex.App.–Amarillo 2008, no pet. h.) (citing McGruder v. Puckett, 954 F.2d 313,

316 (5th Cir. 1992)). Only if the sentence is grossly disproportionate to the offense will the

court consider and compare the sentence received to similar crimes in the same

jurisdiction and sentences for the same crime in other jurisdictions. See McGruder, 954

F.2d at 316.


       In this case, appellant’s current offense had been enhanced to a state jail felony by

two prior theft convictions. See TEX . PENAL CODE ANN . § 31.03(e)(4)(D) (Vernon Supp.

2007). Additionally, appellant’s punishment range was increased from a state jail range

to a third degree felony punishment range because appellant had previously been

convicted of two state jail felonies of burglary of a building. See TEX . PENAL CODE ANN . §

12.42(a)(1) (Vernon Supp. 2007). During cross examination of appellant at the punishment

hearing, appellant admitted to having a total of five felony convictions including a third

conviction for burglary of a building and a conviction for robbery. Under section 12.42(d)

of the Texas penal code, appellant’s sentence is supposed to reflect the seriousness of the

most recent offense, not as it stands alone, but in light of prior offenses. See Winchester,

246 S.W.3d at 390. Although appellant would argue that the present offense was minor

considering that the meat stolen was valued at $31, appellant’s past establishes a recurring

pattern of theft, exactly the type of activity meant to be taken more serious by the State of

Texas. See § 31.03(e)(4)(D) (punishing repeat offenders as felons regardless of the

classification of previous theft convictions). Finally, in reviewing the harshness of the


                                              3
penalty, we would note that the trial court explained its rationale for the length of sentence.

The trial court explained that it believed that, because of appellant’s criminal history and

continued disregard for the law, a jury would probably have given appellant the maximum

sentence. However, because the trial court appreciated appellant’s honesty on the stand

and apparent willingness to accept punishment for the offense, the trial court stated that

it wanted to reward appellant by reducing the sentence that it would have normally

imposed. Therefore, our threshold review of the gravity of the offense underlying the

current conviction as well as the offenses underlying the prior convictions against the

severity of the sentence demonstrates that appellant’s sentence of seven years is not

grossly disproportionate considering appellant’s history. Having determined that the

sentence is not disproportionate, we need not compare the sentence received to similar

crimes in the same jurisdiction and sentences for the same crime in other jurisdictions.

See McGruder, 954 F.2d at 316. We overrule appellant’s issue.


                                         Conclusion


       For the foregoing reasons, we affirm.




                                           Mackey K. Hancock
                                               Justice




Do not publish.



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