Opinion
No. 11-14-00037-CR
02-04-2016
PAMELA ANN GRIMES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court Taylor County, Texas
Trial Court Cause No. 18258B
MEMORANDUM OPINION
Pamela Ann Grimes appeals from a judgment adjudicating her guilt for the offense of possession of methamphetamine with the intent to deliver in a drug-free zone. In one issue on appeal, Appellant asserts that her punishment constituted cruel and unusual punishment. We affirm.
Background Facts
Appellant entered a plea of guilty in November 2011 to the first-degree felony offense of possession of methamphetamine with the intent to deliver in a drug-free zone. TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010), § 481.134(c) (West Supp. 2015). Appellant also signed a judicial confession, which the trial court admitted into evidence at the time Appellant entered her original plea of guilty. At that time, the trial court accepted Appellant's plea, deferred an adjudication of guilt, and placed her on deferred adjudication community supervision for ten years.
The State filed a motion to revoke community supervision and adjudicate guilt in August 2013. The State alleged eighteen violations of the terms and conditions of Appellant's community supervision, including at least three instances of Appellant using methamphetamine while on community supervision. The trial court found that the State had proven all of the allegations, and it adjudicated Appellant guilty of possession of methamphetamine with the intent to deliver in a drug-free zone. The trial court sentenced Appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of ten years and assessed a fine of $ 1,433.
Analysis
In one issue on appeal, Appellant contends that her punishment was grossly disproportionate to the offense, was unjust, and constituted cruel and unusual punishment. See U.S. CONST. amend. VIII. Appellant asserts that the application of the test in Solem v. Helm shows that the sentence is disproportionate to the offense. Solem v. Helm, 463 U.S. 277, 290-91 (1983).
We note at the outset that Appellant made no objection to her sentence in the trial court, either at the time of sentencing or in any post-trial motion, on any grounds; nor did she ever lodge an objection, under constitutional or other grounds, to the alleged disparity, cruelty, unusualness, or excessiveness of the sentence. To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a). Therefore, Appellant has failed to preserve error and has waived her complaint on appeal. See id.; Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (Eighth Amendment issues are forfeited if not raised in the trial court.); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) (holding that a claim of grossly disproportionate sentence in violation of Eighth Amendment was forfeited by failure to object).
Even absent forfeiture, we conclude that Appellant's sentence did not constitute cruel and unusual punishment. The Eighth Amendment prohibits sentences that are "grossly disproportionate" to the offense for which the defendant has been convicted. Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—Eastland 2001, pet. ref'd) (citing Harmelin v. Michigan, 501 U.S. 957 (1991)). When a sentence falls within the range provided by the legislature, it is generally not "grossly disproportionate" to the offense committed. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). The statutory range of punishment for a first-degree felony is confinement for life or for any term not less than five years and not more than ninety-nine years. TEX. PENAL CODE ANN. § 12.32(a) (West 2011). Under the applicable punishment range in the Health and Safety Code for the particular offense for which Appellant was convicted, the minimum term of confinement was increased to ten years. See HEALTH & SAFETY § 481.134(c)(1). Appellant does not argue that her sentence is not within the range that the legislature has provided.
However, if the sentence is grossly disproportionate to the offense or sentences in other similar offenses, the sentence may violate the Eighth Amendment even though it falls within the statutory punishment range. See Bradfield, 42 S.W.3d at 353. To evaluate the proportionality of a sentence, the first step is for us to make a threshold comparison between the gravity of the offense and the severity of the sentence. Id. When analyzing the gravity of the offense, we examine the harm caused or threatened to the victim or society and the culpability of the offender. See, e.g., Hooper v. State, No. 11-10-00284-CR, 2011 WL 3855190, at *3 (Tex. App.—Eastland Aug. 31, 2011, pet. ref'd) (citing Solem, 463 U.S. at 291-92). Only if grossly disproportionate to the offense, must we then compare Appellant's sentence with the sentences received for similar crimes in this jurisdiction or sentences received in other jurisdictions. Bradfield, 42 S.W.3d at 53-54.
Here, Appellant pleaded guilty to possession of between four and 200 grams of methamphetamine. Not only did Appellant possess a felony amount of drugs, but she did so within 1,000 feet of a high school with the intent to deliver. Appellant contends that her sentence of imprisonment is "unjust" and "grossly disproportionate" because community supervision would have been a better option. However, defendants are not entitled to community supervision as a matter of right. See DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). In reviewing a trial court's sentencing determination, "a great deal of discretion is allowed the sentencing judge." Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We will not disturb a trial court's decision as to punishment absent a showing of abuse of discretion and harm. Id. We are hard-pressed to conclude that the trial court abused its discretion in imposing a sentence of confinement for Appellant, particularly when Appellant was unsuccessful in completing her original term of deferred adjudication community supervision.
Appellant's ten-year sentence of imprisonment was the minimum term of confinement for the offense for which she was convicted. We do not find that the sentence is grossly disproportionate to the offense committed by Appellant. Consequently, we need not compare Appellant's sentence with the sentences received for similar crimes in this or other jurisdictions. See Solem, 463 U.S. at 292. We overrule Appellant's sole issue on appeal.
In addition to not preserving the proportionality issue in the trial court, Appellant also did not submit any evidence pertaining to sentences for similar crimes in this or other jurisdictions. --------
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE February 4, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.