Jermaine LaCharles Johnson v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00266-CR No. 10-13-00277-CR

JERMAINE LACHARLES JOHNSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court Nos. 2012-2287-C1 and 2013-147-C1

MEMORANDUM OPINION

In Cause No. 10-13-266-CR, Jermaine LaCharles Johnson pleaded guilty to the

offense of possession of a controlled substance, cocaine. The trial court found the

enhancement paragraph to be true and assessed punishment at eight years

confinement. In Cause No. 10-13-277-CR, Jermaine LaCharles Johnson pleaded guilty

to the offense of evading arrest. The trial court found the enhancement paragraph to be

true and assessed punishment at five years confinement. The trial court ordered the sentence to run consecutively to the sentence in Cause No. 10-13-266-CR. We affirm.

In the sole issue on appeal in each cause number, Johnson argues that his

sentence in each cause number is grossly disproportionate to his culpability. In Cause

No. 10-13-266-CR, Johnson did not present a specific objection to the trial court or raise

the issue in a motion for new trial. Johnson was required to make a timely objection to

the trial court to preserve his complaint that the sentence is unconstitutionally

excessive. See TEX.R.APP. P. 33.1(a); Battle v. State, 348 S.W.3d 29, 30 (Tex.App.-Houston

[14th Dist.] 2011, no pet.).

Moreover, Johnson has not shown that his sentence was disproportionate to the

crime. Courts have repeatedly held that punishment which falls within the limits

prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656

S.W.2d 481, 486 (Tex. Crim. App. 1983). Johnson was convicted of a State Jail Felony

punishable as a third degree felony because of two prior convictions for State Jail

Felony offenses. TEX. PENAL CODE ANN. § 12.425 (a) (West Supp. 2013). Johnson’s

sentence of eight years confinement is within the statutory range.

In Cause No. 10-13-277-CR, Johnson was also convicted of a State Jail Felony

punishable as a third degree felony because of two prior convictions for State Jail

Felony offenses. TEX. PENAL CODE ANN. § 12.425 (a) (West Supp. 2013). His sentence of

five years confinement was within the statutory range.

Johnson contends that his sentence is disproportionate to his culpability because

he suffers from mental health disorders and an intelligence level that is below the

normal range. The proportionality of a sentence is evaluated by considering (1) the

Jermaine LaCharles Johnson v. The State of Texas Page 2 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. Solem v. Helm, 463 U.S. 277, 292 (1983). A

threshold determination that the sentence is grossly disproportionate to the crime is

required before addressing the remaining elements. McGruder v. Puckett, 954 F.2d 313,

316 (5th Cir.), cert. denied, 506 U.S. 849 (1992); Jackson v. State, 989 S.W.2d 842, 845-46

(Tex.App.-Texarkana 1999, no pet.).

Johnson had numerous previous convictions, including a prior conviction for

evading arrest and convictions for drug offenses. During the punishment phase,

Johnson admitted to running from the police in the past and to prior drug use. Johnson

further admitted that he had been to a state jail three times for possessing cocaine and

that he did not complete drug counseling. Johnson has not met the threshold

determination that his sentence is grossly disproportionate to the crime. We overrule

the sole issue on each appeal.

We affirm the trial court’s judgments.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 27, 2014 Do not publish [CR25]

Jermaine LaCharles Johnson v. The State of Texas Page 3 Jermaine LaCharles Johnson v. The State of Texas Page 4