Opinion
No. 06-03-00015-CR
Date Submitted: October 20, 2003.
Date Decided: October 21, 2003. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 29,757-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Cassandra Gail Pitts has appealed from her conviction, on her guilty plea, of theft (habitual), a state jail felony. The trial court reviewed a presentence investigation report, heard evidence, and assessed her punishment at two years' confinement in a state jail facility. Pitts raises a single issue on appeal arguing that her sentence was disproportionate to her offense. We affirm the judgment of the trial court. Pitts was convicted of a state jail felony, which provides a punishment range of between 180 days and two years. See Tex. Pen. Code Ann. § 12.35(a) (Vernon 2003). Thus, her punishment was within the range authorized by statute. Texas courts have traditionally held that, as long as the punishment 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). However, in Jackson v. State, 989 S.W.2d 842, 845 (Tex.App. Texarkana 1999, no pet.), this Court recognized that 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. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App. Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68-69 (Tex.App. Texarkana 2000, pet. ref'd). Our proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution is guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. U.S. Const. amend. VIII; Tex. Const. art. I, § 13; see Solem v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex.App. Tyler 1996, no pet.) (evaluating appellant's Texas constitutional claim of cruel and unusual punishment under test outlined in Solem). Only if we find the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex.App. Texarkana 1995, pet. ref'd). Pitts did not present this issue to the trial court; therefore, she did not preserve it for our review. See Tex.R.App.P. 33.1(a); Jackson, 989 S.W.2d at 844. Even if the contention had been preserved for review, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. Alberto v. State, 100 S.W.3d 528, 529-30 (Tex.App. Texarkana 2003, no pet.); see Fluellen, 71 S.W.3d at 873; Latham, 20 S.W.3d at 69; Davis, 905 S.W.2d at 664-65. We affirm the judgment.