                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-18-00019-CR


                          JAMES CALEB BROOKS, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 355th District Court
                                    Hood County, Texas
              Trial Court No. CR13454, Honorable Ralph H. Walton, Jr., Presiding

                                      August 23, 2019

                             MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant James Caleb Brooks appeals from his conviction of the offense of

possession of methamphetamine, in an amount of four grams or more but less than 200

grams, with intent to deliver1 and the resulting sentence of seventy-five years of




      1   TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2011).
imprisonment.2 Through a single issue, appellant contends the sentence he received

was disproportionate to the crime for which he was convicted. We will affirm.


                                          Background


          At appellant’s jury trial, the State presented testimony showing that in early 2016,

appellant was a passenger in a friend’s car. After he stopped them in the early morning

hours for an inoperable headlight, a police officer called for a drug dog because he

considered their conduct to be deceptive and he recalled a previous encounter with the

driver.


          When appellant got out of the car, a pat-down of appellant’s person revealed three

knives, a stun gun, a can of mace, and a metal socket with burnt marijuana residue. After

the drug dog alerted, officers found several shards of methamphetamine on the seat

where appellant had been sitting. Appellant was arrested. At the jail, nineteen grams of

methamphetamine were found in appellant’s underwear along with digital scales and

several clear plastic baggies. At trial, an officer testified to his observations of appellant

that night and his opinion that appellant was “highly likely selling methamphetamine.” The

jury found appellant guilty as charged in the indictment.


          During the punishment phase, evidence that appellant was on felony deferred

adjudication probation in Oklahoma was admitted through the State’s only punishment

witness. Appellant presented the testimony of one witness, his mother. She told the jury

of appellant’s childhood, his family, including an eleven-year-old daughter, and his “good-

hearted,” “loving” character, and said he had never before been convicted of a felony in


          2   TEX. PENAL CODE ANN. § 12.32 (West 2011).

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Texas. She also told the jury appellant only hurt himself with his drug use and “he just

can’t seem to get away from it. He’s tried very hard to get away from it, and it just seems

to draw him back in.” She testified appellant “never dealt in drugs” and she agreed she

was surprised to “see the large quantity of drugs” involved in her son’s case.


       After hearing the punishment evidence, the jury assessed punishment against

appellant at seventy-five years of imprisonment. Following trial, appellant filed a motion

for new trial arguing, among other things, that the sentence imposed violated the Eighth

Amendment’s prohibition against cruel and unusual punishment. The court held a hearing

on the motion at which appellant presented no evidence. The trial court denied the motion

for new trial and this appeal followed.


                                          Analysis


       On appeal, appellant argues his sentence of seventy-five years is prima facie

disproportionate to his offense and as support for his assertion, contends the jury did not

hear “any evidence that would justify such a harsh sentence,” particularly given this was

appellant’s “first offense”, and that there “is a complete absence of any aggravating

circumstances in this case to warrant and justify” appellant’s sentence.


       Evaluation of a challenge to the term of imprisonment imposed in an individual

case based on all its circumstances begins with a comparison of the gravity of the offense

with the severity of the sentence. Noyes v. State, No. 07-16-00229-CR, 2018 Tex. App.

LEXIS 3572, at *6 (Tex. App.—Amarillo May 21, 2018, no pet.) (mem. op., not designated

for publication) (citing Graham v. Florida, 560 U.S. 48, 60, 130 S. Ct. 2011, 176 L. Ed. 2d

825 (2010)). We consider the harm caused or threatened to the victim, the offender’s


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culpability, and the offender’s prior adjudicated and unadjudicated offenses. State v.

Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (citing Graham, id.) Only if this is

a rare case3 in which the sentence is grossly disproportionate to the offense are we to

compare appellant’s sentence with the sentences received for similar crimes in this

jurisdiction or sentences received in other jurisdictions. Noyes, 2018 Tex. App. LEXIS

3572, at *6.


       Generally, a sentence within the statutory range of punishment for an offense is

not excessive, cruel, or unusual punishment. Winchester v. State, 246 S.W.3d 386, 389

(Tex. App.—Amarillo 2008, pet. ref’d). The Court of Criminal Appeals has described “the

sentencer’s discretion to impose any punishment within the prescribed range to be

essentially ‘unfettered.’ 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).


       Here, appellant’s seventy-five-year sentence falls within the statutory range for the

offense of which the jury found him guilty. See TEX. PENAL CODE ANN. §12.32 (first-degree

felony offense is punishable by imprisonment for life or for any term of not more than 99

years or less than five years); TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2011)

(possession of four grams or more of Penalty Group 1 controlled substance with intent to



       3  The Court of Criminal Appeals pointed out in Simpson, 488 S.W.3d at 323, that
“[o]nly twice has the Supreme Court held that a non-capital sentence imposed on an adult
was constitutionally disproportionate.” (citations omitted).

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deliver is felony of first degree).   From the amount of methamphetamine found on

appellant’s person, and the scales and baggies found with it, the jury had no reason to

doubt appellant’s intent to distribute the substance.     His mother’s testimony, while

perhaps helpful to appellant in some respects, made clear that appellant had association

with illegal drugs for some time. And from the circumstances of appellant’s possession

of these drugs, the weapons he also possessed, and the shards lying on the seat in which

he was sitting, the jury could have considered appellant’s culpability in the offense to be

clearly established. The Legislature has considered the harm to victims and our society

at large that flows from distribution of methamphetamine to be such as to warrant

classification of offenses like that committed by appellant as first-degree felonies, near

the most serious of crimes.      And, although there was evidence presented at the

punishment hearing that appellant had never before been convicted of a felony, the jury

also heard that appellant, less than a year prior to this offense, had been placed on

deferred adjudication probation in Oklahoma after pleading nolo contendere to two

felonies and a misdemeanor offense. This evidence, coupled with the gravity of this first-

degree felony offense, leads to the conclusion appellant has failed to make a prima facie

showing that his sentence was grossly disproportionate to the offense.         Objectively

comparing the gravity of appellant’s offense with the severity of the sentence, we do not

find the sentence is extreme. Jones v. State, No. 07-13-00430-CR, 2014 Tex. App. LEXIS

5694, at *6 (Tex. App.—Amarillo May 28, 2014, no pet.) (mem. op., not designated for

publication) (citing Speckman v. State, Nos. 07-13-00232-CR, 07-13-00233-CR, 2014

Tex. App. LEXIS 5615 (Tex. App.—Amarillo May 23, 2014, no pet.) (mem. op., not

designated for publication)).



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         Under the totality of the circumstances in this case, appellant’s punishment was

not grossly disproportionate to the crime of which he was convicted so as to violate the

Eighth Amendment to the United States Constitution. See U.S. CONST. amend. VIII;

Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d). Appellant’s

sole issue is overruled.


                                        Conclusion


         Having resolved appellant’s issue against him, we affirm the judgment of the trial

court.


                                                        James T. Campbell
                                                           Justice




Do not publish.




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