Dale Merrifield v. The State of Texas--Appeal from 142nd District Court of Midland County

Opinion filed March 29, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00231-CR

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   DALE MERRIFIELD, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 142nd District Court

Midland County, Texas

Trial Court Cause No. CR29934

O P I N I O N

This is an appeal from a judgment revoking community supervision. The trial court originally convicted Dale Merrifield, upon his plea of guilty, of the offense of credit card abuse and assessed his punishment at confinement for two years in a state jail facility and a $1,000 fine. Pursuant to the plea bargain agreement, the trial court suspended the imposition of the sentence and placed appellant on community supervision for four years. At the hearing on the State=s second amended motion to revoke, appellant entered a plea of true to the allegation that he failed to report as ordered and pleas of not true to the remaining four allegations. The trial court found four of the allegations to be true. The trial court then revoked appellant=s community supervision and imposed a sentence of confinement for two years in a state jail facility. A fine was not assessed. We affirm.

In his sole issue on appeal, appellant contends that the sentence imposed is disproportionate to the gravity of the offense under both U.S. Const. amend. VIII and Tex. Const. art. I, ' 13. We disagree.

The eighth amendment prohibits punishments that are Agrossly disproportionate@ to the offense for which the defendant has been convicted. Harmelin v. Michigan, 501 U.S. 957 (1991); McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992); Bradfield v. State, 42 S.W.3d 350 (Tex. App.CEastland 2001, pet. ref=d); Hicks v. State, 15 S.W.3d 626 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); Hernandez v. State, 10 S.W.3d 812 (Tex. App.CBeaumont 2000, pet. ref=d); Dunn v. State, 997 S.W.2d 885 (Tex. App.CWaco 1999, pet. ref=d); Jackson v. State, 989 S.W.2d 842 (Tex. App.CTexarkana 1999, no pet.). The reviewing court must first compare the gravity of the offense with the severity of the sentence. Bradfield, 42 S.W.3d at 353.

The record before this court does not support appellant=s claims. Appellant judicially confessed that he committed the offense. The trial court assessed a sentence that was within the range of punishment authorized by Tex. Pen. Code Ann. '12.35 (Vernon 2003).[1] A penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield, 42 S.W.3d at 354.

We note that appellant did not raise his state constitutional claims in the trial court. Therefore, these claims are not properly before this court. Tex. R. App. P. 33; Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.CFort Worth 2005, no pet.).

Appellant has not established that the trial court abused its discretion. The sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

March 29, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Section 12.35 provides that a person convicted of a state jail felony shall be confined for a period of not more than two years but not less than 180 days. An optional fine not to exceed $10,000 is also authorized.