Opinion
No. 06-07-00164-CR
Submitted: April 28, 2008.
Decided: April 29, 2008. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 30,965-B.
Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Justice CARTER.
MEMORANDUM OPINION
Debra Perry appeals the revocation of her community supervision for the state-jail felony offense of forgery. See Tex. Penal Code Ann. § 32.21(d) (Vernon Supp. 2007). Perry was found to have violated certain conditions of her community supervision; that supervision was revoked, and Perry was sentenced to eighteen months' confinement. Perry first complains that she was denied due process because the trial court refused to consider the full range of punishment. The Constitutional mandate of due process requires a neutral and detached judicial officer who will consider the full range of punishment and mitigating evidence. See Gagnon v. Scarpelli, 411 U.S. 778, 786-87 (1973). A trial court denies due process when it arbitrarily refuses to consider the entire range of punishment for an offense or refuses to consider mitigating evidence and imposes a predetermined punishment. McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim.App. 1983), overruled on other grounds by De Leon v. Aguilar, 127 S.W.3d 1 (Tex.Crim.App. 2004). This occurs when a trial court actually assesses punishment at revocation consistent with the punishment it has previously announced it would assess upon revocation. Sanchez v. State, 989 S.W.2d 409, 411 (Tex.App.-San Antonio 1999, no pet.). In the absence of a clear showing to the contrary, we presume that the trial court was neutral and detached. Fielding v. State, 719 S.W.2d 361, 366 (Tex.App.-Dallas 1986, pet. ref'd) (citing Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App. 1982)). Perry contends her due process rights were violated because the trial court's statements, "How many chances do you get to get it right? She promised to do this, she's promised to do that. Just like promising probation officer she was going to turn herself in, didn't do it. Empty promise." and "All I am doing is wasting time, and I'm not going to waste anymore time on it and I'm going to do what I got to do," showed the trial court's failure to consider the full range of punishment, including continuing Perry's community supervision. Even though Perry did not object at the trial court level, we need not decide whether an objection below was required to preserve error because the record does not show that the trial court imposed a "predetermined" punishment. See Brumit v. State, 206 S.W.3d 639 (Tex.Crim.App. 2006). Here, the trial court had already once continued Perry's community supervision in 2006. Perry was again before the court on another application to revoke her supervision. The trial court heard evidence and assessed an eighteen-month sentence, not the maximum twenty-four months. We conclude that the court did not predetermine Perry's sentence in this case. Therefore, Perry's due process rights were not violated, and we overrule this point of error. Perry next contends that the sentence was disproportionate to the offense. Perry's motion for new trial contains a contention that the sentence was disproportionate to the offense. A motion for new trial is an appropriate way to preserve this type of claim for review. See Williamson v. State, 175 S.W.3d 522, 523-24 (Tex.App.-Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex.App.-Texarkana 2005, no pet.). Texas courts have traditionally held that, as long as the punishment assessed 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). Here, Perry's sentence falls within the applicable range of 180 days to two years' confinement and a fine not to exceed $10,000.00. See Tex. Penal Code Ann. § 12.35 (Vernon Supp. 2007). That does not end the inquiry. A prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. U.S. Const. amend. VIII; see Solem v. Helm, 463 U.S. 277, 290 (1983); Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 846 (Tex.App.-Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex.App.-Dallas 1994, pet. ref'd); see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex.Crim.App. 2006) (describing this principle as involving a "very limited, `exceedingly rare,' and somewhat amorphous" review). Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the viability of the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin, but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Lackey, 881 S.W.2d at 420-21. In light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence; and then, only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors — sentences for similar crimes in the same jurisdiction and sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469, 470 (Tex.App.-Texarkana 2006, no pet.); Lackey, 881 S.W.2d at 420-21. We do not believe the sentence was grossly disproportionate to the gravity of the offense, but even if it was, there is no evidence in the record from which we could compare her sentence to the sentences imposed on other persons in Texas or on persons in other jurisdictions who committed a similar offense. See Latham v. State, 20 S.W.3d 63, 69 (Tex.App.-Texarkana 2000, pet. ref'd); Davis v. State, 905 S.W.2d 655, 664-65 (Tex.App.-Texarkana 1995, pet. ref'd). Without such evidence, the record before us does not support Perry's claim of demonstrable error. Cf. Jackson, 989 S.W.2d at 846 ("there is no evidence in the record reflecting sentences imposed for similar offenses on criminals in Texas or other jurisdictions by which to make a comparison"). We affirm the trial court's judgment.
The trial court did not conduct a hearing on Perry's motion for new trial, which was overruled by operation of law.