                                NO. 07-12-0202-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                     PANEL D

                                 AUGUST 22, 2012


                               JOSHUA BARCENES,

                                                               Appellant
                                          v.

                              THE STATE OF TEXAS,

                                                               Appellee
                        _____________________________

            FROM THE 21ST DISTRICT COURT OF BASTROP COUNTY;

        NO. 14,661; HONORABLE CHRISTOPHER D. DUGGAN, PRESIDING


                              Memorandum Opinion


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

      Appellant Joshua Barcenes pled guilty to the offense of burglary of a habitation

without benefit of a plea bargain. Punishment was tried to the court which assessed

punishment at twelve years confinement. Appellant argues that the punishment is cruel

and unusual in violation of the Eighth Amendment.       We disagree and affirm the

judgment.

       Burglary of a habitation is a second degree felony.    TEX. PENAL CODE ANN.

§30.02(c)(2) (West 2011). The range of punishment for a second degree felony is a
term of not more than twenty years or less than two years. Id. §12.33(a). Generally a

punishment that falls within the statutory range, such as this one, is not cruel and

unusual. Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006); Samuel v.

State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Winchester v. State, 246 S.W.3d

386, 388 (Tex. App.–Amarillo 2008, pet. ref’d).

       However, there is a narrow exception prohibiting sentences from being greatly

disproportionate to the crimes they punish. See Ewing v. California, 538 U.S. 11, 20

123 S.Ct. 1179, 1185, 155 L.Ed.2d 108 (2003). In analyzing such claims, we first

compare the gravity of the current offense as well as the gravity of the offenses

underlying any prior convictions against the severity of the sentence.     McGruder v.

Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Perez v. State, 280 S.W.3d 886, 887 (Tex.

App.–Amarillo 2009, no pet.). Upon determining that the threshold comparison leads to

an inference of gross porportionality, we then compare 1) the challenged sentence

against sentences for similar crimes in the same jurisdiction, and 2) the sentences

imposed for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d at

316.

       At the time of the current offense, appellant was on deferred adjudication

probation for a felony drug offense in Travis County from which he had absconded. He

had already failed two drug tests as part of his probation and committed this offense to

support his drug habit. He has another prior offense for possession of marijuana for

which he served jail time. The pre-sentence investigation report shows that appellant

has used drugs since he was thirteen and ingests alcohol, marijuana, cocaine, and



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crack daily.   Although he could live with his mother, he chooses not to do so, is

homeless, and has been unemployed for two years.

      Appellant broke into a home in the middle of the day to steal items from a house

and, as the family was returning home, they noticed the kitchen window broken and

someone running out the back door. Their television was unplugged and an X-Box was

wrapped up. While it is true that the family was never directly confronted by appellant

and no items were actually stolen, the residents are now afraid in their home.

      Appellant presented evidence that the sentence for burglary of a habitation for

most offenders in Texas is between five and ten years. Given that this sentence is only

two years more than the upper end of that range, appellant’s prior drug offenses, his

disregard for obeying the conditions of his probation, and that the sentence is only

slightly over half of the possible statutory punishment, we cannot say that the sentence

here is so large as to be grossly disproportionate to the crime. See Rummel v. Estelle,

445 U.S. 263, 276-285, 100 S.Ct. 1133, 1140-1145, 63 L.Ed.2d 382 (1980) (finding a

life sentence for felony theft of $120.75 by false pretenses, after two other felony

convictions involving fraudulent use of a credit card to obtain $80 of goods and passing

a forged check in the amount of $28.36 was not grossly disproportionate to the offense).

      Accordingly, the issue is overruled, and the judgment is affirmed.


                                                Brian Quinn
                                                Chief Justice
Do not publish.




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