Thomas Andrew Sherrill v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00160-CR

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THOMAS ANDREW SHERRILL, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 282nd Judicial District Court

Dallas County, Texas

Trial Court No. F03-46653-MS

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

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

          Thomas Andrew Sherrill appeals from his conviction of aggravated sexual assault on a child. Five indictments were tried together. Sherrill pled nolo contendere, or no contest, to the charges. Following a bench trial, the trial court sentenced Sherrill to fifty years' imprisonment for the aggravated sexual assault. The cases have been appealed separately and have been briefed together.

          Because the briefs and arguments raised therein are identical in all five appeals, for the reasons stated in Sherrill v. State, No. 06-05-00159-CR, we likewise resolve the issues in this appeal in favor of the State.

          We affirm the judgment of the trial court.

 

                                                                           Jack Carter

                                                                           Justice

Date Submitted:      December 7, 2005

Date Decided:         December 30, 2005

Do Not Publish

shment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here, Perry's sentence falls within the applicable range of 180 days to two years' confinement and a fine not to exceed $10,000.00. See Tex. Penal Code Ann. §Â 12.35 (Vernon Supp. 2007).

That does not end the inquiry. A prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. U.S. Const. amend. VIII; see Solem v. Helm, 463 U.S. 277, 290 (1983); Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.--Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.--Dallas 1994, pet. ref'd); see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (describing this principle as involving a "very limited, 'exceedingly rare,' and somewhat amorphous" review).

   Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the viability of the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin, but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Lackey, 881 S.W.2d at 420-21. In light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence; and then, 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 her 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 Perry'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").

We affirm the trial court's judgment.

       Jack Carter

Justice

Date Submitted: April 28, 2008

Date Decided: April 29, 2008

Do Not Publish

1. The trial court did not conduct a hearing on Perry's motion for new trial, which was overruled by operation of law.