Joseph Arbin Gaskins, III v. State of Texas

Opinion filed July 31, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-07-00179-CR

                                                    __________

                             JOSEPH ARBIN GASKINS, III, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 142nd District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR28559

                                             M E M O R A N D U M  O P I N I O N

Joseph Arbin Gaskins, III, appellant, pleaded guilty to the second degree felony offense of burglary of a habitation.  The trial court deferred adjudication of guilt and placed appellant on community supervision for five years and assessed a $500 fine.  After extending the term of appellant=s community supervision on two occasions, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and assessed his punishment at ten years confinement.  Later, the trial court suspended further execution of the sentence, placed appellant on community supervision, and ordered appellant to a court residential treatment facility for a term of confinement not to exceed twenty-four months.  The State filed a motion and an amended motion to revoke appellant=s community supervision.  Appellant pleaded true to all of the State=s allegations.  The trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, and imposed a sentence of confinement for three years.  We affirm.

In his sole issue on appeal, appellant contends that the sentence imposed is disproportionate to the gravity of the offense under both U.S. Const. amend. VIII and Tex. Const. art. I, ' 13. Appellant did not raise the issue of a disproportionate sentence in the trial court.  Appellant=s failure to object in the trial court to the alleged disproportionate sentence waived any error.  Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.CHouston [1st Dist.] 2006, no pet.); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d). However, even absent waiver, we conclude that appellant=s sentence was not grossly disproportionate to the offense.

The legislature is vested with the power to define crimes and prescribe penalties. See State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.CTyler 1996, pet. ref=d); Davis v. State, 905 S.W.2d 655, 664 (Tex. App.CTexarkana 1995, pet. ref=d).  As a general rule, punishment is not cruel and unusual if it falls within the range of punishment established by the legislature.  Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.CFort Worth 2005, no pet.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.CTexarkana 2002, no pet.).  A narrow exception to this rule is recognized where the sentence is grossly disproportionate to the offense.  Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277, 290-91 (1983); Dale, 170 S.W.3d at 799.  A[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.@  Solem, 463 U.S. at 289-90 (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)).

Solem had suggested that, in determining the proportionality of a sentence, appellate courts could consider three factors: (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.  Solem, 463 U.S. at 292.  In light of Harmelin, the test in Solem appears to have been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence.  Then, if that initial comparison created an inference that the sentence was grossly disproportionate to the offense, an appellate court should consider the other two Solem factors: (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.  See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.CTexarkana 2006, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.CDallas 1994, pet. ref=d).

In this case, appellant committed a second degree felony offense of burglary of a habitation.  The punishment for a second degree felony is Aimprisonment in the institutional division for any term of not more than 20 years or less than 2 years.@  Tex. Penal Code Ann. ' 12.33(a) (Vernon 2003). In addition, the punishment may include Aa fine not to exceed $10,000.@ Tex. Penal Code Ann. ' 12.33(b) (Vernon 2003). Appellant=s sentence of three years falls within the range of punishment established by the legislature.  Appellant committed the offense of burglary of a building the day after he committed the offense in this case.  Appellant pleaded guilty to that offense.  In view of the facts that appellant pleaded guilty to the offense in this case, that appellant failed numerous times to comply with the terms and conditions of his community supervision, and that appellant committed the offense of burglary of a building, we cannot say that appellant=s sentence was grossly disproportionate.  We overrule appellant=s issue.

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

July 31, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.