No. 14-09-00277-CR
Opinion filed April 8, 2010. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 180th District Court Harris County, Texas, Trial Court Cause No. 1111768.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
TRACY CHRISTOPHER, Justice.
Appellant Hysone M. Patterson challenges the trial court's adjudication of his guilt on the ground that the sentence imposed violates his state and federal constitutional rights. We affirm.
I. Background
Pursuant to a plea agreement, appellant pleaded guilty to the second-degree felony offense burglary of a habitation. On June 28, 2007, the trial court entered an order of deferred adjudication and placed appellant on community supervision for three years in accordance with the plea agreement. The terms of his community supervision included, among other things, that appellant: • Commit no offense against the laws of this or any other State or of the United States.
• Avoid injurious or vicious habits. [Appellant is] forbidden to use, possess or consume any controlled substance, dangerous drug, marijuana, alcohol or prescription drug. . . .
• Avoid persons or places of disreputable or harmful character. . . .
The terms of appellant's community supervision were twice amended — first in July 2007 to add that he attend a "Cognitive/Life Skills Course" and "Employment Readiness Program," and again in January 2008 to commit him to a substance abuse treatment facility and to order him to participate in a substance abuse treatment program. Appellant was arrested for possession of heroin with intent to deliver on May 5, 2008. Shortly after his arrest, the State moved to adjudicate his guilt. At the hearing, appellant's probation officer testified regarding the terms of appellant's community supervision. He further testified that appellant had been committed to a drug rehabilitation facility from January to April 2008. Additionally, Houston Police Department ("HPD") officers testified to the following events. On May 5, 2008, an undercover officer saw appellant and a passenger, later identified as Thomas Henry, stopped in traffic in the Houston area. He watched what he believed to be a drug transaction occur between the occupants of the vehicle and a person on foot; he called for a marked patrol unit to initiate a traffic stop. The marked unit followed appellant's car to an apartment complex, where appellant and Henry got out and started walking away from the car. Officers detained appellant and Henry. An officer performed a pat-down search of appellant and discovered a baggie hidden inside a large belt buckle. The baggie contained twenty-seven pieces of foil, each of which had a substance inside. Officers also discovered another bag containing a similar substance tucked underneath the driver's seat and a pistol on the passenger's side of the vehicle. The substance found in the foils and in the car field-tested positive for heroin. An HPD chemist verified that the substance was heroin. The chemist also stated that the weight of the heroin discovered on appellant's person was 1.07 grams and the weight of the heroin found in the car was 7.8 grams. After hearing the evidence, the trial court found that appellant had violated the terms and conditions of his community supervision, adjudicated him guilty, and sentenced him to twenty years' incarceration. Appellant filed a motion for new trial in which he asserted that the trial court's sentence violated his constitutional rights to be free from cruel and unusual punishment, which was overruled by operation of law. This appeal timely ensued thereafter. II. Analysis
In three issues, appellant asserts that the trial court's sentence violates his state and federal rights to be free from cruel or unusual punishment. See U.S. CONST. amend. VII; TEX. CONST. art. I, § 13; TEX. CODE CRIM. PROC. ANN. art. 1.09 (Vernon 2005). Where deferred adjudication community supervision is revoked, the trial court may impose any punishment authorized by statute. Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999) (per curiam). Appellant was convicted of burglary of a habitation, a second-degree felony, with a punishment range of two to twenty years' incarceration. See TEX. PENAL CODE ANN. § 12.33(a) (Vernon Supp. 2009) (second degree felony punishment range is two to twenty years); id. § 30.02(a)(1)(c)(2) (Vernon 2003) (burglary of habitation is second degree felony). As noted above, appellant was sentenced to twenty years' incarceration, which falls within the statutory range of punishment. Punishment assessed within the statutory limits is generally not considered cruel and unusual. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Baldridge v. State, 77 S.W.3d 890, 893-94 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). A narrow exception to this rule was announced by the United States Supreme Court in Solem v. Helm, which held that criminal sentences must be proportionate to the crime and that even a sentence within the statutorily prescribed range may violate the Eighth Amendment. 463 U.S. 277, 290 (1983). Punishment may be grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence shows the sentence to be extreme. Baldridge, 77 S.W.3d at 893 (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (plurality op.) (Kennedy, J., concurring)). If we determine that the sentence is grossly disproportionate to the offense, we must then consider the remaining factors of the Solem test and compare the sentence received to (1) sentences for similar crimes in this jurisdiction, and (2) sentences for the same crime in other jurisdictions. Id. First we must examine the gravity of the offense. The complaint alleges that appellant burglarized the apartment of the complainant and stole several items. He apparently broke a window to enter the apartment. He was indicted for burglary of a habitation with intent to commit theft. Appellant pleaded guilty to the offense and confessed "that he did then and there unlawfully, without the consent of the owner, namely, without any consent of any kind, intentionally and knowingly entered a habitation owned by [the complainant], a person having A GREATER RIGHT TO POSSESSION OF THE HABITATION THAN THE DEFENDANT, and commit and attempt to commit the felony of theft." Texas courts have concluded that a lengthy prison sentence for the offense of burglary does not raise an inference of gross disproportionality. See, e.g., Castaneda v. State, 135 S.W.3d 719, 724-25 (Tex. App.-Dallas 2003, no pet.) (concluding that thirty-year sentence for third degree felony offense of burglary of vehicle, enhanced by two prior felony convictions, was not grossly disproportionate under federal constitution); Sullivan v. State, 975 S.W.2d 755, 757-58 (Tex. App.-Corpus Christi 1998, no pet.) (noting that five-year sentence imposed on first-time offender for burglary of habitation was well-below maximum term of imprisonment permitted and was not grossly disproportionate to offense). Further, the legislature, recognizing the serious nature of this crime, distinguishes between burglary of a building (a state jail felony) and burglary of a habitation (a felony of the second degree.) TEX. PENAL CODE ANN. § 30.02(c) (Vernon 2003). A habitation is a structure designed for overnight accommodation of a person — here, the apartment of the complainant. Id. § 30.01(1). People want to feel secure in their homes, and burglary of a habitation destroys that sense of security. We cannot conclude that twenty years is grossly disproportionate to the offense. Moreover, even if we were to determine that the sentence imposed was grossly disproportionate to the offense, appellant has provided no argument or authority concerning sentences imposed on other individuals either in Texas or in other jurisdictions who committed a similar offense so that we may consider the other two Solem factors. See TEX. R. APP. P. 38.1(h); see also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.-Texarkana 1999, no pet.) (noting that even if the court wanted to consider the other Solem factors, there was no evidence in the record reflecting sentences imposed for similar offenses in Texas or other jurisdictions to which to compare the appellant's sentence). In fact, appellant has not cited a single case in which an appellate court has concluded that a twenty-year sentence for burglary of a habitation violated an appellant's Eighth Amendment rights. Under these circumstances, we conclude that the sentence imposed in this case does not run afoul of the state or federal prohibitions against cruel or unusual punishment, and we overrule appellant's three issues. III. Conclusion
We affirm the trial court's judgment.