LAWRENCE BURNETT, JR. v. THE STATE OF TEXAS--Appeal from 130th District Court of Matagorda County

NUMBERS 13-05-387-CR AND 13-05-388-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 LAWRENCE BURNETT, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 130th District Court

of Matagorda County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Lawrence Burnett, Jr., was convicted of delivery of a controlled substance in each of these two cases. See Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003). The trial court sentenced appellant to two years' confinement, suspended for five years' community supervision, in each case. Subsequently, the State filed motions to revoke the suspended sentences based on appellant's alleged violations of the terms of his community supervision. Following a hearing, the trial court revoked appellant's community supervision in each case and sentenced him to sixteen months' imprisonment. Appellant filed motions for new trial and motions in arrest of judgment. The trial court denied said motions. In a single point of error, appellant contends the sentence assessed by the trial court constitutes cruel and unusual punishment. We affirm.

I. Background

All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Analysis

By his sole point of error, appellant contends that the sentence imposed by the trial court in each case constitutes cruel and unusual punishment.[2] More specifically, appellant claims that the punishment assessed by the trial court was disproportionate to the gravity of the offense.[3] We disagree.

Appellant urges this Court to apply the Solem or McGruder proportionate analysis test to his sentence. See Solem v. Helm, 463 U.S. 277, 291 (1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). This Court has recognized that "the viability and mode of application of proportionate analysis . . . has been questioned since the Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957 (1991)." Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.BCorpus Christi 2005, pet. ref'd) (citing McGruder v. Puckett, 954 F.2d 313, 315-16) (discussing the various opinions issued in Harmelin, 501 U.S. at 957, and their impact on the Solem decision)); see Sullivan v. State, 975 S.W.2d 755, 757-58 (Tex. App.BCorpus Christi 1998, no pet.) (discussing the implications of the Harmelin opinion and reviewing the proportionality of appellant's sentence under the Solem and McGruder tests). Assuming, arguendo, the viability of a proportionality review, as we did in Sullivan, we will apply the Solem and McGruder tests to the facts of this case. See Sullivan, 975 S.W.2d at 757-58.

In both Solem and McGruder, we look first at the gravity of the offense and the harshness of the penalty. Solem, 463 U.S. at 290; McGruder, 954 F.2d at 316. Appellant was found guilty of delivery of a controlled substance which is a state jail felony punishable by a term of imprisonment ranging from 180 days to two years in length. See Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003); Tex. Pen. Code Ann. ' 12.35 (Vernon 2003). The sixteen month sentence is eight months shorter than both the sentence originally assessed by the trial court and the maximum term permitted for a state jail felony. In light of the nature of appellant's offense, the punishment range available, and the reduction of the sentence by the trial court, we conclude that appellant's sixteen month sentence is not grossly disproportionate to his crime. This finding ends our analysis under McGruder. See McGruder, 954 F.2d at 316; see also Sullivan, 975 S.W.2d at 757. Further, because there is no evidence in the appellate record of the sentences imposed for other crimes in Texas or for the same crime in other jurisdictions, we may not perform a comparative evaluation using the remaining Solem factors. See Solem, 463 U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58. Therefore, we conclude that appellant's sentence in each case is neither grossly disproportionate nor cruel and unusual. Appellant's sole point of error is overruled.

III. Conclusion

Accordingly, we affirm the judgments of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed the 13th day of July, 2006.

[1]On appeal, appellant complains of the sentence imposed upon him in cause numbers 99-J-171-SJ and 99-J-172-SJ. Because the cases are similar in nature, we will address them together.

[2]The State contends that appellant failed to preserve the issue for appellate review. However, error was preserved through appellant=s motion for new trial. See Tex. R. App. P. 33.1(a).

[3]Appellant also asserts that the punishment assessed was disproportionate to the probation time he had completed. However, he provides us with no authority, and we find none, to support the proposition that the proportionality of the sentence should be reviewed in light of probation time completed. See Tex. R. App. P. 38.1(h) (providing that appellant=s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). Therefore, this contention is not before us.