Thomas Shane Diggs v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00006-CR

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THOMAS SHANE DIGGS, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31207-B

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Appellant, Thomas Shane Diggs, has filed a motion to dismiss the pending appeal in this matter. The motion contains an attached affidavit signed by Diggs, indicating his wish to dismiss this appeal. We grant Diggs' motion and hereby dismiss this appeal.

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          February 28, 2005

Date Decided:             March 1, 2005

Do Not Publish

n, 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 Shannon's 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 Shannon'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").

There being no other issues before us, we affirm the trial court's judgment.

Bailey C. Moseley

Justice

Date Submitted: May 9, 2008

Date Decided: May 12, 2008

Do Not Publish

1. Shannon originally pled guilty in open court to the offense of possession of a controlled substance (methamphetamine) in an amount of less than one gram and was sentenced by the trial court to two years' confinement, probated for four years. See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003); Tex. Penal Code Ann. § 12.35. Shannon admitted using marihuana, a controlled substance, on or about August 28, 2007, which was less than one month after the trial court granted community supervision.

2.

The trial court did not conduct a hearing on Shannon's motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8.