Opinion
No. 05-04-00174-CR
Opinion filed August 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 20066. Affirmed.
OPINION
Appellant Craig Scott Humphries appeals the December 10, 2003 judgment of a Kaufman County trial court revoking his community supervision and sentencing him to the Texas Department of Criminal Justice, State Jail Division, for a period of two years for the offense of forgery committed on February 7, 2000. Appellant's sole issue on appeal is whether the trial court abused its discretion in revoking his community supervision, assessing the maximum punishment of two years' confinement in a state jail facility, and crediting him with 468 days of time served. Concluding appellant has shown no abuse of discretion by the trial court in revoking his community supervision, we affirm. On April 10, 2000, appellant was charged with forgery alleged to have been committed on February 7, 2000, in Kaufman County, Texas. On that same date, appellant waived indictment and entered a negotiated plea of guilty. Following the State's recommendation, the trial court assessed appellant's punishment at a $2,000 fine and two years' confinement in a state jail facility. The court suspended imposition of sentence and placed appellant on community supervision for five years. Appellant was given a copy of the terms and conditions of his community supervision. Among those terms and conditions were the following: (1) that appellant commit no offense against the laws of this or any other State or the United States; (2) that appellant make restitution or reparation in the sum of $2,173.62 and pay check collection fees in monthly installments of $50 beginning May 10, 2000; (3) that appellant pay a community supervision fee in the amount of $40 per month beginning on April 10, 2000, and continuing throughout the term of his community supervision; and (4) that appellant perform community service projects for the Kaufman County Community Service Program for 120 hours as directed by a community supervision officer. On October 18, 2002, in Kaufman County, the State filed a motion to revoke appellant's community supervision in the February 7, 2000 forgery. The State alleged multiple violations of the terms and conditions of appellant's community supervision, including that appellant committed a new forgeryoffense, failed to pay the required court-ordered restitution and check collection fees, failed to pay the required community supervision fees, and failed to perform the required court-ordered community supervision hours. On June 12, 2003, in Brazoria County, Texas, appellant entered a negotiated plea of guilty to another forgery offense alleged to have been committed on February 16, 2001, in exchange for the State's recommendation that his punishment be assessed at 540 days' confinement in a state jail facility. Appellant was credited with 533 days of time served. On December 10, 2003, a hearing was held in Kaufman County on the State's Motion to Revoke. At that hearing, appellant waived reading of the State's motion to revoke. After acknowledging he understood the charges against him, as well as his rights as explained to him by the trial judge, including the right to a presentence report, appellant waived his rights and pleaded true to the allegations contained in the motion to revoke. Without objection, a stipulation of evidence signed by appellant, his attorney and the State's attorney was admitted into evidence at the revocation hearing. The trial court took judicial notice of the April 10, 2000 plea proceeding and appellant's admission of guilt to the February 7, 2000 forgery offense. At the conclusion of the hearing, the trial court revoked appellant's community supervision, sentenced him to two years' confinement, and credited him with 468 days of time served. On February 24, 2004, appellant was appointed an attorney to represent him in this appeal of the trial court's December 10, 2003 judgment revoking his community supervision in the Kaufman County forgery. Appellant's sole point on appeal is that the trial court abused its discretion in revoking his community supervision and crediting him with 468 days of time served. Although appellant's brief is unclear, we interpret his argument as raising the issue of cruel and unusual punishment under both the state and federal constitutions. Citing only three cases, Harmelin v. Michigan, 501 U.S. 957 (1991), Solem v. Helm, 463 U.S. 277 (1983), and Jackson v. State, 989 S.W.2d 842 (Tex. App.-Texarkana 1999, no pet.), appellant argues that under his circumstances, the severity of his sentence was grossly disproportionate to the gravity of the crime. He contends this is so because the stipulation of evidence is insufficient to prove he committed a new offense and the sentence he received for the same crime, forgery, in another jurisdiction was only 540 days, while the sentence in this case was two years. Initially, we note appellant did not preserve this complaint for review. To preserve a complaint for appellate review, an appellant must present to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling desired. Tex.R.App.P. 33.1(a)(1)(A); Smith v. State, 10 S.W.3d 48, 49 (Tex. App.-Texarkana 1999, no pet.). Appellant made no complaint in the trial court at any time raising the issue of disproportionality; thus, he has not preserved that issue for our review. Even had appellant preserved the issue for review, we conclude his punishment is not disproportionate, thus cruel and unusual within the meaning of either the Eighth Amendment to the United States Constitution or article I, section 13 of the Texas Constitution. See U.S. Const. amend. VIII; Tex. Const. art. I, § 13. In Solem, the Supreme Court set out a test to evaluate proportionality of a sentence. Solem, 463 U.S. at 292. Although strict application of the Solem test has been questioned by state and federal courts following the Supreme Court's opinion in Harmelin, we have previously held that the requirement of proportionality survives, even if Solem does not. Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.-Dallas 1994, pet. ref'd). The Solem test requires that the proportionality of a sentence be 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 291-92 (emphasis added). Even if we evaluated appellant's sentence in light of the proportionality requirements of Solem, we would conclude appellant has not shown that his two-year sentence in the 2000 forgery is disproportionate, thus cruel and unusual punishment. The only evidence in the record of differing sentences for the crime of forgery is evidence of the punishments assessed against appellant in 2000 in Kaufman County-two years probated for five years, and in 2003 in Brazoria County-540 days' confinement. Liberally construing appellant's less-than-clear argument, we assume his argument is that because the Brazoria County punishment is less than the Kaufman County punishment, he has satisfied the Solem test of disproportionality. We disagree. That appellant in another county in 2003 was assessed a 540-day sentence for the offense of forgery does not render disproportionate, thus cruel and unusual, the 2000 two-year probated sentence, later imposed in 2003 only after revocation of his community service on his plea of true to the alleged violations of the terms and conditions of his community service. Nor has appellant shown that the harshness of the penalty is not justified by the gravity of the offense. The two-year punishment assessed is within the range of punishment provided by the Texas Legislature. See Tex. Pen. Code Ann. § 12.35(a) (Vernon 2003). Texas courts have traditionally held that as long as the punishment is within the range established by the Legislature in a valid statute, the punishment assessed does not violate either the federal or Texas prohibitions against cruel and/or unusual punishment. See Davis v. State, 125 S.W.3d 734, 735 (Tex. App.-Texarkana 2003, no pet.). Nor has appellant presented any evidence of sentences imposed on other criminals in either Kaufman or Brazoria County, Texas or outside Texas. Thus, there is no evidence from which to make a comparative evaluation. See Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.-Tyler 1996, pet. ref'd). Even if we were to apply the Solem test, appellant has not satisfied that test. For all the reasons set out above, we affirm.
In his brief, appellant states that after he was put on community supervision in this case he was "transferred to Dallas County where he was sentenced to the Texas Department of Criminal Justice-Institutional Division. Appellant was transferred to the Texas Department of Criminal Justice-Institutional Division where he was confined until paroled on or about February 14, 2001." Appellee filed no brief, thus those statements are uncontradicted in the record.
Appellant's specific complaint concerning the evidence concerns the fact that the forged check set out in State's Exhibit Number 1 is not the same forged check set out in the State's Motion to Revoke and in the Judgment Revoking Community Supervision. Appellant is correct. However, we conclude that variance is immaterial in light of appellant's plea of true to the allegations contained in the State's motion to revoke.