Opinion filed September 4, 2014




                                         In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-13-00200-CR
                                    __________

                            AMY GRADY, Appellant
                                            V.
                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 35th District Court
                              Brown County, Texas
                         Trial Court Cause No. CR21524

                      MEMORANDUM OPINION
      Following a hearing, the trial court accepted Amy Grady’s open plea of true
to the State’s motion to adjudicate her guilt, adjudged her guilty of delivery of a
controlled substance in a drug-free zone,1 assessed her punishment at confinement
for four years, and sentenced her accordingly. Appellant appeals the trial court’s
judgment and argues, in a single issue, that her punishment is grossly

      1
       See TEX. HEALTH & SAFETY CODE ANN. § 481.114 (West 2010), § 481.134 (West Supp. 2013).
disproportionate to the offense and constitutes cruel and unusual punishment in
violation of the Eighth Amendment of the United States Constitution. See U.S.
CONST. amend. VIII. We affirm.
                               I. The Charged Offense
        The grand jury indicted Appellant for delivery of hydrocodone in a drug-free
zone.    A person commits an offense if the person knowingly manufactures,
delivers, or possesses with intent to deliver a controlled substance listed in Penalty
Group 3 or 4. HEALTH & SAFETY § 481.114(a). Hydrocodone is listed in Penalty
Group 3. Id. An offense under Section 481.114(a) is a state jail felony if the
amount of the controlled substance to which the offense applies is, by aggregate
weight, including adulterants or dilutants, less than twenty-eight grams. Id.
        If the person commits an offense under Section 418.114(b) in a drug-free
zone, the offense becomes punishable as a third-degree felony. Id. An individual
adjudged guilty of a felony of the third degree shall be punished by imprisonment
in the Texas Department of Criminal Justice for any term of not more than ten
years or less than two years. TEX. PENAL CODE ANN. § 12.34(a) (West 2011). In
addition, an individual adjudged guilty of a third-degree felony may be punished
by a fine not to exceed $10,000. Id. § 12.34(b). Additionally, “[a]n inmate serving
a sentence for which the punishment is increased under Section 481.134, Health
and Safety Code, is not eligible for release on parole until the inmate’s actual
calendar time served, without consideration of good conduct time, equals five
years or the term to which the inmate was sentenced, whichever is less.” TEX.
GOV’T CODE ANN. § 508.145(e) (West Supp. 2013).
                                   II. Background
        Appellant originally pleaded “no contest” to the offense of delivery of a
controlled substance in a drug-free zone. The trial court deferred the adjudication
of her guilt and placed her on community supervision for a term of eight years.
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      In May 2013, the State filed a motion to proceed with an adjudication of
Appellant’s guilt. In the motion, the State alleged that Appellant violated the terms
of her community supervision in the following ways: committed the offense of
criminal trespass; used marihuana; associated with persons of harmful character;
failed to work faithfully at suitable employment; failed to pay court costs, fines,
and other fees; failed to complete community service; and failed to complete
counseling.
      The trial court held a hearing on the State’s motion to adjudicate. Appellant
pleaded “true” to some of the allegations against her. After hearing evidence, the
trial court found most of the allegations true. However, the trial court rejected the
allegation that Appellant failed to faithfully work at suitable employment and the
allegations that Appellant failed to pay costs, fines, and fees.
                               III. Standard of Review
      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.
                                     IV. 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 fact that her sentence must be served day-for-
day. See GOV’T § 508.145(e). As a general rule, punishment is not cruel and
unusual if it falls within the range of punishment established by the legislature.
Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.). Here,
Appellant was convicted of the third-degree felony of delivery of a controlled
substance in a drug-free zone. See HEALTH & SAFETY §§ 481.114, 481.134. The
statutory range of punishment for a third-degree felony is imprisonment for a term
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between two and ten years. PENAL § 12.34(a). Appellant’s four-year sentence is
within the statutory range of punishment.
      An exception to the general rule exists for a sentence that falls within the
statutory range for the crime but is grossly disproportionate to the crime. Solem v.
Helm, 463 U.S. 277, 290 (1983); Dale, 170 S.W.3d at 799. A prohibition against
grossly disproportionate punishment survives under the U.S. 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, the Supreme Court has recognized that “[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 a proportionality analysis, we first make a threshold comparison of the
gravity of an appellant’s offense against the severity of her sentence. 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.
Dale, 170 S.W.3d at 800; Alvarez v. State, 63 S.W.3d 578, 581 (Tex. App.—Fort
Worth 2001, no pet.). 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 imposed for the same crime in other
jurisdictions. Solem, 463 U.S. at 292; Dale, 170 S.W.3d at 800.
      In this case, Appellant pleaded “no contest” to the charged offense of
delivery of a controlled substance in a drug-free zone and was placed on deferred
adjudication community supervision. After Appellant violated the conditions of
her community supervision the first time, she was ordered to spend ten days in the
county jail. Later, Appellant again violated the conditions of her community
supervision. At the hearing on the State’s motion to adjudicate, Appellant pleaded
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“true” to many of the State’s allegations.         Appellant also testified that she
understood that the drug-free zone enhancement meant that she would be required
to serve the full amount of any prison time she received.
      Given the facts and circumstances of this case and a sentence at the low end
of the punishment range, we conclude that Appellant’s four-year sentence is not
grossly disproportionate to the offense. Therefore, 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. See Dale, 170 S.W.3d at 800.
      Furthermore, the fact that Appellant must serve her four-year sentence day-
for-day does not make the punishment cruel and unusual. See Underwood v. State,
No. 06-02-00104-CR, 2003 WL 61259, at *2 (Tex. App.—Texarkana Jan. 9, 2003,
no pet.) (not designated for publication) (rejecting the defendant’s claim that his
eighteen-month day-for-day sentence was unconstitutionally disproportionate to
his crime). We overrule Appellant’s sole issue.
                               V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


September 4, 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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