CRAIG ANTHONY HART v. THE STATE OF TEXAS--Appeal from 36th District Court of Aransas County

NUMBER 13-01-856-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B  EDINBURG

CRAIG ANTHONY HART, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of Aransas County, Texas

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Baird[1]

  Opinion by Justice Baird

Appellant was charged by indictment with the offense of bail jumping. Tex. Pen. Code Ann. ' 38.10 (Vernon 1994). A jury convicted appellant of the charged offense. The trial judge assessed punishment at five years confinement in the Texas Department of Criminal Justice--Institutional Division. We affirm.

Appellant was initially charged with felony theft and released on a bail bond in the amount of $10,000. The instant offense arose when appellant failed to make a scheduled court appearance in the felony theft case. Appellant does not raise any points of error stemming from the guilt phase of his trial. Instead, appellant=s sole point of error contends the punishment assessed by the trial judge is excessive and, therefore, violative of the Eighth Amendment=s prohibition against cruel and unusual punishments.

At the punishment phase of appellant=s trial, trial counsel requested that appellant not be released on community supervision, but rather be assessed a term of confinement for two years. Later, appellant stated that he was willing to receive community supervision conditioned that inpatient drug treatment not be a requirement, or two years confinement. The State recommended punishment be assessed at five years confinement. The trial judge agreed, and assessed punishment accordingly. The trial judge gave appellant credit for forty-four days toward the sentence, and did not impose a fine.

Appellant was convicted of a third degree felony. Tex. Pen. Code Ann. ' 38.10(f) (Vernon 1994). The statutorily prescribed range of punishment for such an offense is by imprisonment for any term of not more than ten years or less than two years. Tex. Pen. Code Ann. ' 12.24(a) (Vernon Supp. 2002). In addition, a fine not to exceed $10,000 may be imposed. Id. at ' 12.24(b). Even though the sentence of five years is within the range of punishment, appellant argues the punishment was excessive in light of appellant=s poor health B he suffers from Scleroderma and depression. The State responds that as long as the sentence is within the range of punishment, an Eighth Amendment challenge cannot be successful. It is true that 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. Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).

However, at least one of our sister courts of appeals has recognized that an attack against grossly disproportionate punishment may be successful under the Eighth Amendment even when the punishment assessed is within the range established by the Legislature. Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.BTexarkana 1999, no pet.); Latham v. State, 20 S.W.3d 63, 69 (Tex. App.BTexarkana 2000, pet. ref'd). Under this analysis three factors are considered: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other offenders in the same jurisdiction; and (3) the sentences imposed for commission of the same offense in other jurisdictions. Solem v. Helm, 463 U.S. 277, 292 (1983).[2]

Under the first prong, we find the following considerations to be important. Appellant and his counsel both asked for a term of confinement. Their only argument now is that the term is greater than they requested. Additionally, the presentence investigation report, which was admitted into evidence, states the following:

The defendant is a repeat felony offender who has an extensive criminal history in the State of Connecticut. Felony convictions and prior commitments to the penitentiary in Connecticut classifies the defendant as a high risk and need offender whose immediate return to the community would be counterproductive to public safety. The prognosis to complete a term of Community Supervision is extremely poor given the defendant=s extensive criminal history and prior revocations of community supervision granted in Connecticut. The defendant=s history of failure to appear for court hearings and two (2) revocations of community supervision support this prognosis. It is therefore recommended the defendant be confined in the Institutional Division of the Texas Department of Criminal Justice.

Finally, we note the trial judge gave appellant credit for the time spent in custody prior to being sentenced, and did not impose a fine. In light of these considerations, we do not find the sentence of five years to be harsh in the instant case.

Assuming arguendo that we found the sentence was harsh in relation to the gravity of the offense, we would still be required to consider the two remaining factors and compare the sentence received by appellant to sentences for similar crimes in the same jurisdiction, and to sentences for the same crime in foreign jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.1992). However, we could not address those factors because there is no evidence comparing appellant=s sentence and those of others in the same jurisdiction. Buchanan v. State, 68 S.W.3d 136, 141 (Tex. App.BTexarkana 2001, no pet.). Additionally, there is no comparison between the sentences imposed in Texas and in other jurisdictions for those who committed similar offenses. Id. Therefore, we are unable to hold the sentence imposed in the instant case violated the Eighth Amendment. Accordingly, appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

CHARLES F. BAIRD

Justice

Do Not Publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 12th day of December, 2002.

[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

[2] We note that the viability and mode of application of proportionate analysis in non-death penalty cases is currently in question. See McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992) (discussing the various opinions issued in Harmelin v. Michigan, 501 U.S. 957 (1991) and their impact on the Solem decision). Assuming, without deciding, the viability of a proportionality review, we consider appellant's claim of disproportionate punishment.