Leslie Lee v. State ( 2015 )

ACCEPTED
06-15-00004-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/23/2015 4:11:40 PM
DEBBIE AUTREY
CLERK
NO. 06 – 15 -- 00004 – CR
FILED IN
6th COURT OF APPEALS
IN THE SIXTH DISTRICT COURT OF TEXARKANA, TEXAS
APPEALS
TEXARKANA, TEXAS 7/23/2015 4:11:40 PM
DEBBIE AUTREY
Clerk
LESLIE LEE
Appellant,
v.
THE STATE OF TEXAS
Appellee
On appeal from the 188TH District Court, Gregg County, Texas
Trial Court Case No. 42,954-A
BRIEF OF THE STATE OF TEXAS
– ORAL ARGUMENT NOT REQUESTED –
CARL L. DORROUGH
District Attorney
Zan Colson Brown
Texas Bar No. 03205900
Assistant District Attorney
Gregg County, Texas
101 East Methvin St., Suite 333
Longview, Texas 75601
Telephone: (903) 236–8440
Facsimile: (903) 236–3701
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................1
INDEX OF AUTHORITIES ...................................................................................2
SUMMARY OF THE ARGUMENT .....................................................................4
ARGUMENT ............................................................................................................5
1) The issue of disproportionate sentence/ Eighth Amendment
violation was not preserved. .......................................................................5
2) The sentence was not excessive.......................................................................5
A. The sentence does not constitute cruel or unusual
punishment.............................................................................................5
B. The Sentence is not disproportionate ....................................................6
PRAYER ...................................................................................................................9
CERTIFICATE OF SERVICE ..............................................................................9
CERTIFICATE OF COMPLIANCE……………………………….................10
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INDEX OF AUTHORITIES
Federal Cases
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 , 115 L. Ed. 2d 836 ..............6
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 121
L. Ed. 2d 98, 113 S. Ct. 146 (1992 ..................................................................7, 8
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 3006 , 77 L. Ed. 2d 637 (1983) ..6, 8
State Cases
Dunn v. State, 997 S.W.2d 885, 891-9 (Tex. App.--Waco 1999) pet. ref'd ..............7
Harris v. State, 656 S.W.2d 481, (Tex. Crim. App. 1983); .......................................6
Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997)……………….5
Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref'd) .....................................................................................................................7
Jackson v. State, 989 S.W.2d 842 846 (Tex. App.—Texarkana 1999, no pet.) 5, 6, 7
Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.--Dallas 1994, pet. ref'd.) ............7
Mathews v. State, 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996) pet. ref'd .....7
McNew v. State, 608 S.W.2d 166 (Tex. Crim. App. 1978) .......................................6
Moore v. State, 54 S.W.3d 529 (Tex. App.—Fort Worth 2001, pet. ref'd) ...........6, 8
Price v. State, 35 S.W.3d 136, 144 (Tex. App.--Waco 2000) pet. ref'd (op. on
reh'g) ....................................................................................................................6
Puga v. State, 916 S.W.2d 547 (Tex. App.--San Antonio 1996) ..............................7
Richardson v. State, 328 S.W.3d 61 (Tex. App.—Fort Worth 2010, pet. ref'd) .......5
State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973 ..........6
State Statutes
Tex. Pen. Code Ann. § 31.03 (Vernon) .....................................................................5
State Rules
Tex. R. App. P. 33.1...................................................................................................5
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STATEMENT OF FACTS
WalMart loss-prevention associate Syzette Sparks, On December 4, 2012,
observed Leslie Lee remove UPC labels from less expensive merchandise and
place them on more expensive items. SX 2, Officer Bagley’s initial report, pages 4-
5 of 5. Sparks recognized Lee from a prior shoplifting incident at another store
location and watched her as she added the fraudulent UPC labels on top of the
actual UPC labels, checked herself out, passed all points of sale and exited the
store. SX 2, Det. Shirley’s Supplemental Report, page 6 of 6. Lee left the location
in a white 2008 Dodge Charger, which was registered to Lee’s mother. SX2,
Supplemental Report, page 1 of 6. The items taken, valued at $111.74, were
recovered and released to WalMart. SX 2 Supplemental Report, at 2 of 6.
WalMart provided to police two receipts (one of the actual cost of the items, and
one for the items with bogus UPC labels totaling $6.41), Sparks’ written statement,
and pictures of the items and the UPC labels. SX2.
Lee had two prior, misdemeanor theft convictions, in 2006 and 2010. A
grand jury indicted Lee on September 12, 2013, for “theft; habitual.” She pleaded
guilty on October 8, 2014, when the Court learned she had been on parole for
felony DWI since 2009. The Court denied her request for probation and sentenced
her to six months in state jail. A motion for new trial was overruled by operation of
law. This appeal ensued.
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SUMMARY OF THE ARGUMENT
1) Appellant did not raise the issue of disproportionality of his sentence at his
trial or in his motion for new trial. She has thus waived her right to raise it on
appeal.
2) Appellant’s sentence was within the statutorily prescribed boundaries and
was not cruel and unusual punishment; nor was it grossly disproportionate to the
offense of habitual theft.
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ARGUMENT
1) The issue of disproportionate sentence/ Eighth Amendment violation was
not preserved.
To preserve error for appellate review, a defendant must make a timely, specific
objection and obtain a ruling from the trial court. TEX. R. APP. P. 33.1. This
requirement applies even to assertions that a sentence is cruel and unusual.
Richardson v. State, 328 S.W.3d 61, 72 (Tex. App.—Fort Worth 2010, pet. ref'd)
(citing Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997); Jackson
v. State, 989 S.W.2d 842, 844 n.3 (Tex. App.—Texarkana 1999, no pet.).
The record contains no mention that the trial court was made aware of Lee’s
complaint. Although Lee filed a generalized motion for new trial, it failed to assert
the issue of cruel and unusual punishment.
2) The sentence was not excessive.
A. The sentence does not constitute cruel or unusual punishment.
Appellant was sentenced to six months’ confinement in a state jail facility
for theft-habitual. CR 25. The statutory punishment range for a conviction of
habitual theft is from six months to two years in state jail. Tex. Pen. Code Ann. §
31.03 (Vernon)(e) (4) (D). This sentence was the minimum within the statutorily
permitted range.
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The length of a criminal sentence is purely a matter of legislative
prerogative. Harmelin v. Michigan, 501 U.S. 957, 962, 111 S. Ct. 2680, 2684, 115
L. Ed. 2d 836 (1991); State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex.
Crim. App. 1973). Texas has long held that any punishment assessed within the
range that is authorized by statute is not cruel and unusual punishment, and does
not render the sentence excessive. See, e.g., Harris v. State, 656 S.W.2d 481, 486
(Tex. Crim. App. 1983); Price v. State, 35 S.W.3d 136, 144 (Tex. App.--Waco
2000) pet. ref'd (op. on reh'g); Moore v. State, 54 S.W.3d 529 (Tex. App. – Fort
Worth 2001) pet. ref'd); McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App.
1978); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no
pet.)
B. The Sentence is not disproportionate
In 1983, the United States Supreme Court affirmatively held that the Eighth
Amendment prohibited “disproportionate” prison sentences. Solem v. Helm, 463
U.S. 277, 284, 103 S. Ct. 3001, 3006, 77 L. Ed. 2d 637 (1983) (recognizing that
“the final clause [of the Eighth Amendment] prohibits not only barbaric
punishments, but also sentences that are disproportionate to the crime committed”).
The Supreme Court identified three criteria to be used to evaluate the
proportionality of a particular sentence. Id. at 292, 103 S. Ct. at 3011. They are
“the gravity of the offense and the harshness of the penalty; . . . the sentences
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imposed on other criminals in the same jurisdiction; and . . . the sentences imposed
for commission of the same crime in other jurisdictions.” Id.
As case-law developed, the Fifth Circuit concluded that “disproportionality
survives; Solem does not.” McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992)
cert. denied, 506 U.S. 849, 121 L. Ed. 2d 98, 113 S. Ct. 146 (1992). The Fifth
Circuit applied a modified Solem test adopted by Justice Kennedy of the United
State’s Supreme Court. Id. That is, the court initially made a threshold comparison
of the gravity of the offense against the severity of the sentence. Id. Only upon a
determination that the sentence is grossly disproportionate to the offense would the
court consider the remaining Solem factors. Id.
Many appellate courts have followed and applied the Fifth Circuit’s
McGruder analysis in addressing Eighth Amendment proportionality complaints.
Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref'd); Dunn v. State, 997 S.W.2d 885, 891-92 (Tex. App.--Waco 1999) pet. ref'd;
Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.--Texarkana 1999) no pet.;
Mathews v. State, 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996) pet. ref'd;
Puga v. State, 916 S.W.2d 547, 549-50 (Tex. App.--San Antonio 1996) no pet.;
Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.--Dallas 1994, pet. ref'd.)
Thus, the first step is to make a threshold comparison of the gravity of the
offense against the severity of the sentence. Solem, 463 U.S. at 291-92, 103 S. Ct.
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at 3010; McGruder, 954 F.2d at 316. A reviewing court is to judge the gravity of
the offense in light of the harm caused or threatened to the victim or society, and
the culpability of the offender. Solem, 463 U.S. at 291-92, 103 S. Ct. at 3010.
Here, Appellant was found guilty of theft of items worth $111.74 from
WalMart. SX 2. The harm to the victim and to the public and to society is based
not so much on the victim’s loss (all items were recovered and returned to the
victim) as on the repeated behaviors of the thief and the cost to the victim and its
other customers who pay increased prices to cover the costs of preventing thefts
and replacing stolen items. The Appellant’s culpability was decided by her guilty
plea; she admitted she is to blame for her behavior. Appellant’s punishment is
within the range of punishment assessable for the offense—at the lowest end of the
range. Moore, 54 S.W.3d, 543. Comparing the gravity of appellant’s offense
(including her prior, jurisdictional offenses) to the severity of her sentence, it is not
grossly disproportionate. Appellant’s point of error should be overruled.
In the event that the Court should find this sentence grossly disproportionate,
Appellant’s contention must fail on the second and third prongs of the Solem test.
Appellant has presented no evidence that her sentence is disproportionate when
compared to sentences for the same crime in this jurisdiction and no evidence that
the sentence is disproportionate when compared to the sentences from other
jurisdictions. Solem at 292. Appellant’s point of error should be overruled.
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PRAYER
The State prays that the sentence be affirmed because the appellant has
failed to preserve error and failed to prove that her sentence was excessive,
violated the 8th Amendment, or was grossly disproportionate to her offenses.
Respectfully Submitted,
CARL L. DORROUGH
Criminal District Attorney
Gregg County, Texas
By : /s/Zan Colson Brown
Zan Colson Brown
Texas Bar No. 03205900
Assistant District Attorney
101 East Methvin St., Suite 333
Longview, TX 75601
Telephone: (903) 236–8440
Facsimile: (903) 236–3701
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing has been
forwarded to appellate counsel by electronic transmission through E-file Texas to
Clement Dunn
140 E. Tyler, Suite 240
Longview, Texas 75601
clementdunn@aol.com
This 23rd day of July, 2015.
/s/ Zan Colson Brown___
Zan Colson Brown
Assistant District Attorney
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CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Texas Rules of
Appellate Procedure, Rule 9 (2013) regarding length of documents, in that
exclusive of caption, identify of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix, it
consists of 1316 words.
/S/Zan Colson Brown
Zan Colson Brown
Assistant District Attorney
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