                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00022-CR
        ______________________________


        SHAWANDA M. SMITH, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 124th Judicial District Court
                Gregg County, Texas
              Trial Court No. 37773-B




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                       MEMORANDUM OPINION

        Shawanda M. Smith has appealed from her open plea of guilty to the offense of possession

of a controlled substance with intent to deliver. 1 The court sentenced Smith to five years‘

imprisonment.

        On appeal, Smith contends that her sentence is cruel and unusual in that it is grossly

disproportionate to the crime, citing, among other cases, Solem v. Helm, 463 U.S. 277 (1983), and

Baldridge v. State, 77 S.W.3d 890 (Tex. App.––Houston [14th Dist.] 2002, pet. ref‘d). To

preserve such complaint for appellate review, Smith must have presented to the trial court a timely

request, objection, or motion that stated the specific grounds for the desired ruling, or the

complaint must be apparent from the context. See TEX. R. APP. P. 33.1(a)(1); Harrison v. State,

187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex.

App.––Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely

manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.––Houston [14th Dist.] 2001, pet.

ref‘d) (failure to complain to trial court that sentences were cruel and unusual waived claim of

error for appellate review). We have reviewed the records of the trial proceeding. No relevant

request, objection, or motion was made. And, while this Court has held that a motion for new trial

is an appropriate way to preserve this type of claim for review (see Williamson v. State, 175


1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

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S.W.3d 522, 523–24 (Tex. App.––Texarkana 2005, no pet.), and Delacruz v. State, 167 S.W.3d

904 (Tex. App.––Texarkana 2005, no pet.)), no motion for new trial was filed. Smith has not

preserved such an issue for appeal.

         However, even absent waiver, 2 we conclude that Smith‘s sentence was not grossly

disproportionate. Texas courts have traditionally held that as long as the punishment assessed is

within the range prescribed by the Legislature in a valid statute, the punishment is not excessive,

cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here,

Smith‘s sentence falls within the applicable range of not less than five years or more than

ninety-nine years or life imprisonment. See TEX. PENAL CODE ANN. § 12.32 (Vernon Supp.

2009).

         That does not end the inquiry. A prohibition against grossly disproportionate punishment

survives under the Eighth Amendment to the United States Constitution apart from any

consideration of whether the punishment assessed is within the range established by the

Legislature. U.S. CONST. amend. VIII; see Solem, 463 U.S. at 290; Harmelin v. Michigan, 501

U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 846 (Tex.

App.––Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420–21 (Tex. App.––Dallas

1994, pet. ref‘d); see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006)




2
 See Faizon v. State, No. 12-05-00353-CR, 2006 Tex. App. LEXIS 6079, at *8 (Tex. App.––Tyler July 12, 2006, no
pet.) (mem. op., not designated for publication).

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(describing this principle as involving a ―very limited, ‗exceedingly rare,‘ and somewhat

amorphous‖ review).

       Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity

of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar

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

other jurisdictions. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the

viability of the Solem three-part test. In fact, it was subsequently held that proportionality

survived Harmelin, but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d

313, 316 (5th Cir. 1992); Lackey, 881 S.W.2d at 420–21. In light of Harmelin, the test has been

reformulated as an initial threshold comparison of the gravity of the offense with the severity of the

sentence; and then, only if that initial comparison created an inference that the sentence was

grossly disproportionate to the offense should there be a consideration of the other two Solem

factors—sentences for similar crimes in the same jurisdiction and sentences for the same crime in

other jurisdictions. McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469, 470 (Tex.

App.––Texarkana 2006, no pet.); Lackey, 881 S.W.2d at 420–21.

       We do not believe the sentence was grossly disproportionate to the gravity of the offense,

but even if it was, there is no evidence in the record from which we could compare Smith‘s

sentence to the sentences imposed on other persons in Texas or on persons in other jurisdictions

who committed a similar offense. See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.––Texarkana



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2000, pet. ref‘d); Davis v. State, 905 S.W.3d 655, 664–65 (Tex. App.––Texarkana 1995, pet.

ref‘d).    Without such evidence, the record before us does not support Smith‘s claim of

demonstrable error. Cf. Jackson, 989 S.W.2d at 846 (―there is no evidence in the record reflecting

sentences imposed for similar offenses on criminals in Texas or other jurisdictions by which to

make a comparison‖).

          There being no other issues before us, we affirm the trial court‘s judgment.




                                                Jack Carter
                                                Justice

Date Submitted:          June 30, 2010
Date Decided:            July 1, 2010

Do Not Publish




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