Opinion
No. 06-06-00221-CR.
Date Submitted: May 9, 2007.
Date Decided: May 10, 2007. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court Gregg County, Texas, Trial Court No. 33941-B.
Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Chief Justice MORRISS.
MEMORANDUM OPINION
On May 26, 2006, Sonya Dews entered a guilty plea to the charge of possession of methamphetamine in an amount less than one gram. The trial court accepted Dews' plea and sentenced her to two years' confinement in a state jail facility; the trial court further probated imposition of the jail sentence and released Dews to community supervision for a period of five years. Dews then accepted the trial court's judgment, and she affirmatively waived her right to appeal the probated sentence. Five months later to the day, the trial court received evidence and heard arguments regarding the State's first amended application to revoke Dews' probated sentence. At this hearing, Dews admitted both orally and in writing that she had violated the conditions of her community supervision in six different ways: (1) she failed to report to her community supervision officer in June, July, and August 2006; (2) (3) she failed to pay her monthly supervision fee and her assessed court costs in June, July, and August 2006; (4) (5) she used amphetamines on or about August 27, 2006, and she used marihuana on or about September 20, 2006; and (6) she failed to perform her assessed community service work during the months of June, July, and August 2006. The trial court imposed the original sentence of two years' imprisonment. Dews now appeals. We affirm. In her first point of error, Dews contends she was denied her right to due process because the trial court failed to consider continuing her community supervision in lieu of revoking her probated sentence and assessing a two-year sentence. In Hull v. State, 29 S.W.3d 602, 604-07 (Tex.App.-Houston [1st Dist.] 2000), vacated remanded, 67 S.W.3d 215 (Tex.Crim.App. 2002), the court of appeals reversed the lower court's judgment revoking community supervision on the basis that the trial court's policy of "zero tolerance" probation violated due process. Dews now seeks to strike a parallel between the situation in Hull and the case now on appeal. The Texas Court of Criminal Appeals later vacated and remanded the First Court of Appeals' decision in Hull. Hull, 67 S.W.3d at 217. The high criminal court's opinion noted Hull had not objected to the trial court's "zero tolerance" probation policy at the time of the original guilty plea or at the revocation hearing. Id. Thus, that tribunal concluded Hull had waived his due-process argument for appellate review. Id. In the case now before us, the record reveals Dews did not present the due-process claim she now seeks to raise on appeal — that the trial court failed to consider the full range of punishment and therefore violated Dews' right to due process — to the trial court. Rule 33.1 of the Texas Rules of Appellate Procedure requires that, "as a prerequisite to presenting a complaint for appellate review," the party must make a timely request, objection, or other complaint in the trial court, and the party must pursue that complaint to an adverse ruling. Tex. R. App. P. 33.1; Hull, 67 S.W.3d at 217. As Dews did not raise this issue before the trial court, we may not now conclude she has preserved it for our review. We, therefore, overrule Dews' first point of error. In her second (and final) point of error, Dews contends the trial court assessed a sentence that is disproportionate to her crime in violation of Solem v. Helm, 463 U.S. 277, 287-90 (1983). The record shows the trial court assessed a sentence of two years' imprisonment in a state jail facility, the maximum sentence authorized by Texas law for Dews' crime. See Tex. Health Safety Code Ann. § 481.102(6) (Vernon Supp. 2006) (methamphetamine is penalty group 1 substance), § 481.115(b) (Vernon 2003) (possession of group 1 substance in amount less than one gram is state-jail felony); Tex. Penal Code Ann. § 12.35(a) (Vernon 2003) (maximum punishment for state-jail felony offense is two years' imprisonment). 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, Dews' sentence falls within the applicable range of 180 days' to two years' imprisonment. That, however, 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, 463 U.S. at 290; Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 845 (Tex.App. — Texarkana 1999, no pet.). 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 v. State, 881 S.W.2d 418, 420-21 (Tex.App.-Dallas 1994, pet. ref'd). 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 — (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Lackey, 881 S.W.2d at 420-21. Dews' sentence is the maximum authorized by the law applicable in this case, yet it is within the range determined by the Legislature to constitute an appropriate punishment for this type of crime. Nothing in this record demonstrates or raises an inference that this sentence was grossly disproportionate to this offense. Dews presented no evidence of punishments assessed for methamphetamine possession in Gregg County or elsewhere within this appellate district, nor does the record show she presented evidence to the trial court of punishments for this offense that have been assessed in other parts of Texas or in other jurisdictions outside of Texas. As such, Dews has not provided this Court with a record with which we may assess the validity of the contention now raised: that her sentence was constitutionally disproportionate to the offense for which she was convicted and for which her community supervision was revoked. Accordingly, we must overrule her final point of error. Finding no reversible error, we affirm the trial court's judgment.