Rodney O'Keith Johnson v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-02-00119-CR
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RODNEY O'KEITH JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 28,525-B
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION

Rodney O'Keith Johnson appeals from the revocation of his deferred adjudication community supervision. He pled guilty, as part of a plea agreement, to robbery. In accordance with the plea agreement, the trial court deferred a finding of guilt and placed Johnson on ten years' community supervision.

Later, the State moved to have the trial court revoke Johnson's community supervision, alleging he committed two violations of its terms. Johnson pled true to the State's first allegation and stipulated to its evidence regarding that allegation. The trial court found that allegation true, found Johnson guilty of robbery, and sentenced him to sixteen years' imprisonment.

On appeal, Johnson contends his sentence is disproportionate to the offense. Johnson was convicted of a second degree felony, the punishment range for which is between two and twenty years' imprisonment. See Tex. Pen. Code Ann. 12.33(a), 29.02(b) (Vernon 1994). The trial court sentenced him to sixteen years' imprisonment.

Texas courts have traditionally held that, as long as the punishment 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). However, in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no pet.), this Court recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.-Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68-69 (Tex. App.-Texarkana 2000, pet. ref'd).

A court's proportionality analysis under both the Eighth Amendment to the United States Constitution and Article 1, 13 of the Texas Constitution should be guided by (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 Solem v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.-Tyler 1996, pet. ref'd) (evaluating an appellant's Texas constitutional claim of cruel and unusual punishment under the test outlined in Solem). Only if we infer the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.-Texarkana 1995, pet. ref'd).

Johnson did not present this issue to the trial court; therefore, he did not preserve it for our review. Tex. R. App. P. 33.1(a); Jackson, 989 S.W.2d at 844. Even if Johnson's contention had been preserved, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. See Fluellen, 71 S.W.3d at 873; Latham, 20 S.W.3d at 69; Davis, 905 S.W.2d at 664-65.

We affirm the judgment.

 

Donald R. Ross

Justice

 

Date Submitted: January 2, 2003

Date Decided: January 30, 2003

 

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