Gary Lee Allen v. State ( 2003 )

  















In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00046-CR ______________________________



GARY LEE ALLEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 402nd Judicial District Court Wood County, Texas Trial Court No. 13,814-93

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Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

On January 24, 1994, Gary Lee Allen pled guilty to four separate charges of forgery in a single hearing. The indictment in each case alleged Allen had two prior, sequential felony convictions, thereby raising the punishment range in each case to no fewer than twenty-five years, nor more than ninety-nine years, or imprisonment for life. See Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003), § 32.21. ⁽¹⁾

On January 31, 2002, the trial court adjudicated Allen's guilt and sentenced him to twenty-five years' imprisonment in all four cases, with each sentence to be served concurrently. This appeal concerns only his conviction for forgery in trial court cause number 13,814-93. Each case was appealed separately, but the briefs in all four cases are substantively identical: Allen's counsel has reviewed the record and determined that there are no nonfrivolous issues that may be raised; he asks that we allow him to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967).

Since the briefs and arguments raised therein are identical in each appeal, for the reasons stated in Gary Lee Allen v. The State of Texas, No. 06-02-00045-CR, we likewise affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: April 24, 2003

Date Decided: April 25, 2003

Do Not Publish

1. Amended by Act of May 29, 1993, 73rd Leg., R.S. ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3643-44.

em 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; Mullins v. State, No. 06-06-00044-CR, 2006 Tex. App. LEXIS 10072, at *3 (Tex. App.--Texarkana Nov. 21, 2006, no pet. h.); Dunn, 997 S.W.2d at 892; Lackey, 881 S.W.2d at 420-21.

Although Thomas' sentence is two years' imprisonment and the range for a state jail felony is 180 days' to two years' imprisonment, this range has been determined by the Legislature to constitute 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. ⁽²⁾ Thomas has failed to show that his sentence was constitutionally disproportionate to the offense for which he was convicted. His sole contention is overruled.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 18, 2006

Date Decided: December 19, 2006

Do Not Publish

1. Thomas did not object to the sentence on the ground it was disproportionate to the crime, or on any other ground, at the time it was imposed. His motion for new trial, however, contains a contention that the sentence was disproportionate to the offense. A motion for new trial is an appropriate way to preserve this type of claim for review. See Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.).

2. Even if there had been an inference raised that this sentence was grossly disproportionate, this record contains no evidence comparing this sentence with others in the same jurisdiction for this offense, or those imposed on defendants in other jurisdictions who committed a similar offense. See Delacruz, 167 S.W.3d at 906.