Billie Jo Rivers v. The State of Texas--Appeal from 188th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00053-CR

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BILLIE JO RIVERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 32338-A

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Billie Jo // Rivers pled guilty to charges of delivery of less than twenty-eight grams of a controlled substance and elected to have a jury assess punishment. // On January 25, 2005, the jury found Rivers guilty and assessed a punishment of two years' imprisonment and a $1,000.00 fine. Rivers now appeals the sentence imposed for this conviction. // She contends the sentence imposed is disproportionate to her offense. // We affirm.

I. Applicable Law

A. Range of Punishment

Rivers was convicted of delivery of a penalty group three controlled substance in an amount of less than twenty-eight grams. Delivery of this amount of a penalty group three controlled substance is a state jail felony, carrying a sentencing range of between 180 days' to two years' confinement and a fine of up to $10,000.00. Tex. Health & Safety Code Ann. 481.114(b) (Vernon 2003); Tex. Pen. Code Ann. 12.35 (Vernon 2003).

B. Proportionality of Punishment

Traditionally, when the punishment assessed is within the range prescribed by the Texas 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); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). However, the United States Supreme Court held the Eighth Amendment prohibits sentences that are disproportionate to the crime committed. See Solem v. Helm, 463 U.S. 277, 292 (1983). The Solem Court provided a test which required a court's proportionality analysis to be guided by objective criteria, including (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See id.

The United States Supreme Court again addressed the proportionality analysis in Harmelin v. Michigan, 501 U.S. 957 (1991). As this Court noted in Davis v. State, 905 S.W.2d 655, 664 65 (Tex. App. Texarkana 1995, pet. ref'd), Harmelin modified the Solem test. // In Jackson v. State, 989 S.W.2d 842, 845 (Tex. App. Texarkana 1999, no pet.), we clarified Solem's proportionality analysis as modified by Harmelin. We recognized that, under the United States and Texas Constitutions, 1) a prohibition against "grossly disproportionate" sentences survives independently of legislative punishment ranges, and 2) a modified Solem analysis applies. Id. at 846.

Under our decision in Jackson, we first make a threshold comparison of the gravity of the offense against the severity of the sentence, and then consider whether the sentence is grossly disproportionate to the offense. Id.; see also Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring). Only if we find the sentence is grossly disproportionate to the offense should we then consider the remaining Solem factors and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Jackson, 989 S.W.2d at 846; see Harmelin, 501 U.S. at 1005; see also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App. Texarkana 2002, pet. ref'd).

II. Analysis

A. Sentence Not Excessive or Disproportionate to Offense

In the instant case, we cannot say Rivers' two-year sentence is grossly disproportionate to the offense she admitted committing. Although the $1,000.00 fine falls far short of the maximum fine allowable under Section 12.35, two years is the maximum sentence allowed by law. Nonetheless, we cannot conclude that such punishment is grossly disproportionate to the offense committed. We emphasize that Rivers admitted to participating in multiple transactions in which she sold prescription medication pharmaceutical grade dihydrocodeinone // for her boyfriend at the time. Two of these transactions were recorded on videotape. Rivers testified her boyfriend had back problems for which he was prescribed this medication. She also explained that, although she would sometimes get money from him, money from the drug sales went to the boyfriend; she sold the drugs to various individuals for her boyfriend. The record also shows Rivers had a criminal record, albeit an arguably minimal one. In 1998, she was placed on community supervision for theft by check. While on supervision, she tested positive for cocaine and marihuana use and also failed to report and pay applicable fees. Eventually, her supervision was revoked, and she served 120 days in jail. The jury could consider Rivers' criminal history and her history of drug abuse. See Davis, 905 S.W.2d at 665.

B. Conclusion

Even though Rivers serves as the caretaker for her ailing sister, considering the record in this case, we cannot say the two-year sentence was grossly disproportionate to the gravity of the crime. We overrule Rivers' sole point of error and affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: October 28, 2005

Date Decided: November 4, 2005

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