Dusty Luttrell v. State ( 2015 )

Opinion filed September 17, 2015
In The
Eleventh Court of Appeals
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No. 11-13-00327-CR
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DUSTY LUTTRELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR22307
MEMORANDUM OPINION
Dusty Luttrell entered an open plea of guilty to (1) the first-degree felony
offense of possession of a controlled substance with the intent to deliver, (2) the state
jail felony offense of evading arrest, and (3) the state jail felony offense of possession
of a controlled substance. The trial court found Appellant guilty of all three offenses
and assessed her punishment at confinement for twenty-five years for the first-
degree felony and confinement for two years for each of the two state jail felonies.
The trial court sentenced Appellant accordingly and ordered that the three sentences
were to run concurrently. The only issue that Appellant raises on appeal concerns
the trial court’s sentence in regard to the first-degree felony offense. We affirm.
The night before police officers arrested Appellant for the felony offense
involved in this appeal, Appellant and her cousin by marriage, Patricia Luttrell, went
to Cisco to purchase 48.4 grams of methamphetamine from Ricky Schedule.
Meanwhile, Brownwood police had received information from a confidential
informant to the effect that Appellant was possessing and selling drugs. Officers
obtained a warrant to search Appellant’s house and vehicles.
On the night of the arrest in this case, Appellant and Patricia were headed to
Bangs to make Appellant’s truck payment. As was the case when Appellant bought
the drugs in Cisco, Appellant’s adult autistic daughter was with her. Police officers
were concerned about the effects that a forced entry into Appellant’s house would
have on her autistic daughter and decided to stop Appellant’s vehicle rather than first
execute the warrant at Appellant’s house. When law enforcement personnel
attempted to stop Appellant, she threw the bag of methamphetamine—the drugs that
she had purchased the night before in Cisco—at Patricia and told her to “get rid of
it.” Appellant continued to drive as the officers pursued the vehicle. Patricia
“panicked” and hid the methamphetamine in her pants; she claimed responsibility
for the methamphetamine when the police later found it.
After some time in jail, Appellant told Patricia that she wanted to take
responsibility for her actions; only then did Patricia tell the police that the
methamphetamine was Appellant’s, not hers. Later, Patricia agreed to a plea bargain
in which she agreed to testify at Appellant’s punishment hearing. In exchange for
her testimony, the trial court sentenced Patricia to confinement for fifteen years.
Investigator Carlyle Gover, with the Brown County Sherriff’s Office, testified
that this was the second largest amount of methamphetamine he had ever seized.
Investigator Gover further testified that, depending on the drug dealer, the amount
of methamphetamine seized could be worth anywhere from $3,500 to $4,800.
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In Appellant’s sole issue on appeal, she argues that her sentence is grossly
disproportionate to the crime committed and that the sentence she received
constituted cruel and unusual punishment in that it is higher than that imposed on
other criminals in the same jurisdiction and in other jurisdictions. Specifically,
Appellant argues that her sentence is grossly disproportionate to Patricia’s fifteen-
year sentence for the same crime.
Appellant’s sentence is not grossly disproportionate to the crime committed.
The Eighth Amendment prohibits sentences that are “grossly disproportionate” to
the offense for which the defendant has been convicted. Bradfield v. State, 42
S.W.3d 350, 353 (Tex. App.––Eastland 2001, pet. ref’d) (citing Harmelin v.
Michigan, 501 U.S. 957 (1991)). When a sentence falls within the range provided
by the legislature, it is generally not “grossly disproportionate” to the offense
committed. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).
The statutory range of punishment for this offense is confinement for life or for any
term not less than five years and not more than ninety-nine years. TEX. PENAL CODE
ANN. § 12.32(a) (West 2011). Appellant does not argue that her sentence is not
within the range that the legislature has provided.
However, if the sentence is grossly disproportionate to the offense or
sentences in other similar offenses, the sentence may violate the Eighth Amendment.
See Bradfield, 42 S.W.3d at 353. To evaluate the proportionality of a sentence, the
first step is for us to make a threshold comparison between the gravity of the offense
and the severity of the sentence. Id. When analyzing the gravity of the offense, we
examine the harm caused or threatened to the victim or society and the culpability
of the offender. See, e.g., Hooper v. State, No. 11-10-00284-CR, 2011 WL 3855190,
at *3 (Tex. App.––Eastland Aug. 31, 2011, pet. ref’d) (citing Solem v. Helm, 463
U.S. 277, 291–92 (1983)). Only if grossly disproportionate to the offense, must we
then compare Appellant’s sentence with the sentences received for similar crimes in
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this jurisdiction or sentences received in other jurisdictions. Bradfield, 42 S.W.3d
at 53–54.
Here, Appellant possessed 48.4 grams of methamphetamine. Investigator
Gover testified that, for Brown County, this was a large amount for a dealer. In fact,
it was the second largest amount of drugs that he had seized in his career. Further,
not only was her autistic daughter present in the car when law enforcement officers
stopped Appellant, she was also present at the time that Appellant purchased the
methamphetamine.
The trial court assessed Appellant’s punishment at twenty-five years’
confinement. Testimony showed that the considerable amount of methamphetamine
involved in this case would be extremely harmful to society. Further, Appellant
pleaded guilty to possession of this large amount of drugs. It is of no small moment
that Appellant’s autistic daughter was present while Appellant was in possession of
the drugs. We do not find that the 25-year sentence is grossly disproportionate to
the offense committed by Appellant. Consequently, we need not compare
Appellant’s sentence with the sentences received for similar crimes in this or other
jurisdictions. We overrule Appellant’s sole issue on appeal.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
September 17, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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