Allen Dwight Sheppard v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-06-00227-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ALLEN DWIGHT SHEPPARD, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Allen Dwight Sheppard appeals his sentence following the revocation of his deferred adjudication community supervision. In one issue, Appellant argues that his sentence amounted to cruel and unusual punishment. We affirm.

Background

Appellant was charged by indictment with burglary of a habitation with intent to commit aggravated assault and pleaded guilty. The trial court deferred finding Appellant guilty and placed him on deferred adjudication community supervision for ten years.

On January 18, 2006, the State filed an amended motion to revoke Appellant s community supervision and to proceed to final adjudication alleging that Appellant had violated certain terms of his community supervision. On May 23, 2006, the trial court conducted a hearing on the State s motion. At the hearing, Appellant admitted that he was the same person placed on deferred adjudication community supervision, that he failed to report as ordered, and that he failed to pay his supervision fees.

Ultimately, the trial court found that Appellant had violated the terms of his community supervision as alleged in the State s motion. Thereafter, the trial court revoked Appellant s community supervision, adjudicated Appellant guilty of burglary of a habitation with intent to commit aggravated assault, and sentenced Appellant to imprisonment for fifty years. This appeal followed.

Cruel and Unusual Punishment

In his sole issue, Appellant argues that the fifty year sentence imposed by the trial court amounts to cruel and unusual punishment.1 Initially, we note that Appellant made no objection to the trial court raising the issue of cruel and unusual punishment and has, therefore, waived such an issue on appeal. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); see also Tex. R. App. P. 33.1. However, even absent waiver, we conclude that Appellant s sentence did not constitute cruel and unusual punishment.

The legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State, 905 S.W.2d 655, 664 (Tex. App. Texarkana 1995, pet. ref d); see also Simmons v. State, 944 S.W.2d 11, 15 (Tex. App. Tyler 1996, pet. ref d). Courts have repeatedly held that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664. In the case at hand, Appellant was convicted of burglary of a habitation with intent to commit aggravated assault. See Tex. Penal Code Ann. 30.02(a)(1) (Vernon 2003). The punishment range for such an offense is between five and ninety-nine years or life. See id. 12.32(a); 30.02(d). Here, the sentence imposed by the trial court falls within the range set forth by the legislature. Id. Therefore, the punishment is not prohibited as cruel, unusual, or excessive per se.

Nonetheless, Appellant urges the court to perform the three part test originally set forth in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the proportionality of a sentence is evaluated by considering (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. Solem, 463 U.S. at 292, 103 S. Ct. at 3011.2 The application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court s decision in Harmelin to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder, 954 F.2d at 316; see also Jackson v. State, 989 S.W.2d 842, 845 46 (Tex. App. Texarkana 1999, no pet.).

In determining whether Appellant s sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).3 In Rummel, the Supreme Court addressed the proportionality claim of an appellant who had received a mandatory life sentence under a prior version of the Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. Id., 445 U.S. at 266, 100 S. Ct. at 1135. The life sentence was imposed because the appellant also had two prior felony convictions one for fraudulent use of a credit card to obtain $80.00 worth of goods or services and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 266, 100 S. Ct. at 1134-35. After recognizing the legislative prerogative to classify offenses as felonies and, further, considering the purpose of the habitual offender statute, the court determined that the appellant s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445 U.S. at 285, 100 S. Ct. at 1145.

In the case at hand, the offense committed by Appellant burglary of a habitation with intent to commit aggravated assault was far more serious than any of the offenses committed by the appellant in Rummel, while Appellant s fifty year sentence is considerably less severe than the life sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence assessed against Appellant in the case at hand. Therefore, since we do not find the threshold test to be satisfied, we need not apply the remaining elements of the Solem test. Appellant s sole issue is overruled.

Disposition

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 2, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Although a trial court s decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable, after an adjudication of guilt, all proceedings, including assessment of punishment and defendant s appeal continue as if the adjudication of guilt had not been deferred. Tex. Code. Crim. Proc. Ann. art. 42.12 5(b). Thus, we may review the issue of cruel and unusual punishment as it pertains to matters subsequent to the trial court s decision to proceed with adjudication.

2 The strict application of the Solemtest has been questioned since the Supreme Court rendered its opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). See Simmons, 944 S.W.2d at 15. The Texarkana Court of Appeals discussed the applicability of Solem in Davis v. State and observed that five members of the Supreme Court in Harmelin rejected the application of the three factor test. See Simmons, 944 S.W.2d at 15 (citing Davis, 905 S.W.2d at 664). However, the court in Davis nevertheless evaluated the sentence under the elements of Solem, recognizing that seven of the justices in Harmelin still supported an Eighth Amendment prohibition against grossly disproportionate sentences. See Davis, 905 S.W.2d at 664 (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992) and Lackey v. State, 881 S.W.2d 418, 421 (Tex. App. Dallas 1994, pet. ref d)).

3 Incidentally, the Fifth Circuit has referred to Rummel as a handy guide in conducting a proportionality review. See McGruder, 954 F.2d at 317.