Davida S. Levy v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

No. 04-99-00903-CR

Davida S. LEVY,

Appellant

v.

STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 94-CR-6644

Honorable Sharon MacRae, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 18, 2000

AFFIRMED

Davida S. Levy ("Levy") (1) pled guilty to forgery. The trial court sentenced her to two years confinement, but probated the sentence for four years. The State moved to revoke Levy's probation. The trial court revoked her probation and sentenced her to fourteen months confinement in the state jail. In her sole point of error, she claims the fourteen-month sentence is cruel and unusual punishment. We disagree and affirm the trial court's judgment.

Discussion

1. Jurisdiction

At the outset, we note that we have jurisdiction to consider Levy's attack on the propriety of the trial court's order revoking her probation. See Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998); Manganello v. State, 915 S.W.2d 158, 159 (Tex. App.-San Antonio 1996, no pet.).

2. Cruel and Unusual?

An appellate court that reviews a sentence imposed by the trial court generally grants substantial deference to the trial court's discretion. See Thomas v. State, 916 S.W.2d 578, 582 (Tex. App.-San Antonio 1996, no pet.). This court has noted that "[t]rial courts appear inclined to impose harsher sentences when a defendant's probation is revoked, and these harsher sentences have been upheld by reviewing courts." See Eiland v. State, 993 S.W.2d 215, 217 (Tex. App.-San Antonio 1999, no pet.).

When Levy pled guilty to her charge of check forgery, it was a state jail felony. See Tex. Pen. Code Ann. 32.21(d) (Vernon 1994 & Supp. 2000). State jail felonies are punishable by confinement of at least 180 days but not more than 2 years. See id. 12.35 (Vernon 1994). In reviewing the trial court's sentence, we compare the gravity of the offense against the length of the prison sentence. See Eiland, 993 S.W.2d at 217.

In the current proceeding, Levy was before the trial court on the State's motion to revoke her probation. The State alleged Levy violated her probation by: 1) committing forgery again, 2) failing to report to her probation officer for three months, and 3) failing to remit approximately $1912.26 in fees. The court revoked Levy's probation on her forgery conviction.

Here, the trial court imposed a sentence slightly above the middle of the allowable range. Levy was accused of violating her probation by committing an offense similar to the underlying crime to which she pled guilty. By failing to report for three consecutive months and falling dramatically behind in her fee payments, she had demonstrated that she was ignoring her duties under her conditions of probation. In view of the circumstances, we do not find that the trial court's sentence was grossly disproportionate to the offense committed in violation of the United States Constitution. See Eiland, 993 S.W.2d at 217. As to the Texas Constitution, "[i]t has long been recognized that if the punishment assessed is within the range of punishment established by the legislature under its constitutional authority, there is no violation of the state constitutional provisions against cruel and unusual punishment." See id. We overrule Levy's point of error.

Conclusion

We affirm the trial court's judgment.

Phil Hardberger, Chief Justice

DO NOT PUBLISH

1. The Clerk's record refers to the appellant as both "Lowery" and "Levy." For consistency, we refer to the appellant as "Levy."