                                       IN THE
                               TENTH COURT OF APPEALS

                                       No. 10-10-00194-CR

CATHY LYNN RUTLEDGE,
AKA CATHY LYNN WILSON,
                                                                 Appellant
    v.

THE STATE OF TEXAS,
                                                                 Appellee



                                From the 413th District Court
                                   Johnson County, Texas
                                   Trial Court No. F43557


                               MEMORANDUM OPINION


          Cathy Lynn Rutledge1 was indicted in Count 1 for the offense of delivery of a

controlled substance, methamphetamine, in an amount of less than one gram. Count 2

alleged delivery of a controlled substance, methamphetamine, in an amount of one

gram or more, but less than four grams.                Count 3 alleged that Rutledge was in

possession with intent to deliver a controlled substance, methamphetamine, in an

amount of four grams or more but less than two hundred grams. Rutledge entered an

1   Cathy Lynn Rutledge is also known as Cathy Lynn Wilson.
open plea of guilty to all three counts. The trial court assessed her punishment at 2

years confinement in a state jail facility for Count 1 and 15 years confinement in the

Texas Department of Criminal Justice – Institutional Division for Count 2. In Count 3,

the trial court assessed punishment at 45 years confinement in the TDCJ-ID and a $5000

fine. We affirm.

                                    Background Facts

        Police received a tip of suspicious activity at Rutledge’s residence from her

neighbors. After months of surveillance, officers went to the residence and asked for

consent to search. Consent to search the residence was denied. Some time later,

Investigator Brent Dickey arranged for a confidential informant to purchase

methamphetamine from Rutledge at her residence.              The confidential informant

purchased methamphetamine from Rutledge on two separate occasions. Investigator

Dickey was then able to obtain a search warrant for Rutledge’s residence. Execution of

the search warrant resulted in the discovery of 73.4 grams of methamphetamine.

        Steve Cobb testified that he and Rutledge lived together at the time of the drug

transactions and execution of the search warrant. Cobb knew that Rutledge was selling

methamphetamine. Cobb stated that Rutledge had approximately twelve customers

who purchased drugs from her.

                                       Punishment

        In her first issue, Rutledge argues that the trial court’s punishment was cruel and

unusual in violation of the Eighth Amendment of the United States Constitution. In her




Rutledge v. State                                                                    Page 2
second issue on appeal, Rutledge argues that the trial court’s punishment violated her

right to due process.

                             Cruel and Unusual Punishment

        The Eight Amendment prohibits cruel and unusual punishment, which includes

extreme sentences that are grossly disproportionate to the crime. Graham v. Florida, ---

U.S. ----, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). The Supreme Court identified

three criteria to be used to evaluate the proportionality of a particular sentence. Solem v.

Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1983); Alvarez v. State, 63

S.W.3d 578, 580-2 (Tex. App.—Fort Worth 2001, no pet.). They are (1) the gravity of the

offense and the harshness of the punishment, (2) the sentences imposed on other

criminals in the same jurisdiction, and (3) the sentences imposed for the same offense in

other jurisdictions. Solem v. Helm, 463 U.S. at 292, 103 S.Ct. at 3011; Alvarez v. State, 63

S.W.3d at 582. In a proportionality analysis, we first make a threshold comparison of

the gravity of the offense against the severity of the sentence. Alvarez v. State, 63 S.W.3d

at 582. Only if we determine that the sentence is grossly disproportionate to the offense

do we consider the remaining Solem factors. Id.

        Generally, punishment assessed within the statutory limits is not excessive, cruel,

or unusual punishment. Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). The

sentence falls within the applicable punishment range for each offense. The lesser

sentences in Count 1 and 2 are to run concurrently with the sentence in Count 3.

Rutledge was convicted of a first-degree felony in Count 3. The punishment range is

imprisonment for 5 to 99 years or life. TEX. HEALTH & SAFETY CODE ANN. § 481.112 (d)

Rutledge v. State                                                                     Page 3
(Vernon 2010); TEX. PENAL CODE ANN. § 12.32 (a) (Vernon Supp. 2010). The trial court

assessed punishment 45 years, in the middle of the punishment range.

         Investigator Dickey testified that in over four years with the drug task force, he

has only been involved in one “bust” for methamphetamines that recovered a larger

quantity of drugs than that possessed by Rutledge. The record shows that Rutledge

both used and sold methamphetamine for several years. Rutledge had a number of

regular customers who purchased methamphetamine from her. At trial, Rutledge’s

attorney asked if she understood that the trial court could “send [her] to the

penitentiary for whatever period of time he chooses?” Rutledge stated that she did

understand. The sentence is not grossly disproportionate to the offense. The sentence

assessed was not cruel and unusual punishment. We overrule the first issue.

                                        Due Process

         When a defendant waives a jury, the trial judge has discretion to assess the

punishment within the range provided by law which he finds appropriate under the

circumstances. Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. 1978). A trial

court's arbitrary refusal to consider the entire range of punishment in a particular case

violates due process. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005). There

is no evidence that the trial court predetermined Rutledge’s sentence or refused to

consider the entire range of punishment. The trial court did not abuse its discretion in

assessing Rutledge’s sentence within the punishment range. We overrule the second

issue.




Rutledge v. State                                                                    Page 4
                                       Conclusion

        We affirm the trial court’s judgment.



                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 11, 2011
Do not publish
[CRPM]




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