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Oliver v. State

Court of Appeals of Texas, Tenth District, Waco
Aug 15, 2007
No. 10-06-00152-CR (Tex. App. Aug. 15, 2007)

Summary

holding that the right against cruel and unusual punishment is a category three right requiring an objection in the trial court and that Oliver waived his claim of gross disproportionality

Summary of this case from Felder v. State

Opinion

No. 10-06-00152-CR

Opinion delivered and filed August 15, 2007. DO NOT PUBLISH.

Appeal from the 241st District Court Smith County, Texas, Trial Court No. 241-0076-06.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.


MEMORANDUM OPINION


Jessamanee Oliver entered an open plea of guilty to possession of a controlled substance with intent to deliver, waived her right to a jury trial, and elected to have the trial court sentence her. Oliver concedes that she knew the range of possible punishments was from 5 to 99 years or life in prison and a fine up to $10,000. The trial court sentenced Oliver to thirty years in prison. We affirm. In a single point of error, Oliver contends that her sentence constitutes cruel and unusual punishment in violation of the United States and Texas Constitutions because it is grossly disproportionate. The State responds that (1) Oliver failed to preserve this issue for appellate review; and (2) Oliver's sentence falls within the range of punishment set by statute and does not constitute cruel and unusual punishment. At no time did Oliver object that the sentence was disproportionate. We believe that the right against cruel and unusual punishment is a category three right under Marin, requiring an objection in the trial court. See Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993). Oliver's complaint has been waived. Nevertheless, we will address the merits in the event preservation is not required. See id. In determining whether a sentence is grossly disproportionate, we consider not only the present offense but also an accused's criminal history. Buster v. State, 144 S.W.3d 71, 81 (Tex.App.-Tyler 2004, no pet.) (citing Davis v. State, 119 S.W.3d 359, 363 (Tex.App.-Waco 2003, pet. ref'd)). The legislature has the power to define crimes and prescribe penalties. Id. If the sentence falls within the limits prescribed by a valid statute, the punishment is not excessive, cruel, or unusual. Id. Texas courts and the Fifth Circuit Court of Appeals require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the elements of the Solem test. See Willis v. State, 192 S.W.3d 585, 596 (Tex.App.-Tyler 2006, pet. ref'd) (citing Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983) (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)). Oliver argues that the sentence is disproportionate because she has not been convicted of any other felony, she was eligible for probation, she suffers from a "terrible childhood," and she has the support of several community members. The State points to the fact that Oliver has dealt drugs on multiple occasions, is a "daily drug user," has used and dealt drugs in the presence of her young child, her co-defendant received a fifty-year sentence, and her punishment falls at the lower end of the range set forth by the Legislature. The State also points to a prior misdemeanor conviction for theft. We agree with the State that Oliver has not met the requirement of a threshold determination that the sentence is grossly disproportionate to the crime. See Willis, 192 S.W.3d at 596. We overrule Oliver's sole point of error and affirm the trial court's judgment.

In Hernandez v. State, 10 S.W.3d 812 (Tex.App.-Beaumont 2000, pet. ref'd), the court determined that the point on appeal did not raise systemic issues. Earlier, that court noted that issues involving cruel and unusual punishment are subject to procedural default. Hawkins v. State, 964 S.W.2d 767, 769-70 (Tex.App.-Beaumont 1998, pet. ref'd) (citing Wright v. State, 930 S.W.2d 131, 133 (Tex.App.-Dallas 1996, no writ)).


Summaries of

Oliver v. State

Court of Appeals of Texas, Tenth District, Waco
Aug 15, 2007
No. 10-06-00152-CR (Tex. App. Aug. 15, 2007)

holding that the right against cruel and unusual punishment is a category three right requiring an objection in the trial court and that Oliver waived his claim of gross disproportionality

Summary of this case from Felder v. State
Case details for

Oliver v. State

Case Details

Full title:JESSAMANEE D. OLIVER, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Aug 15, 2007

Citations

No. 10-06-00152-CR (Tex. App. Aug. 15, 2007)

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