Kevin Oneal Sheppard v. State

• Court: Court of Appeals of Texas
• Decided: September 7, 2007
• Docket: 06-06-00247-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00247-CR

KEVIN ONEAL SHEPPARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 34,652-A

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Kevin Oneal Sheppard has appealed from his adjudication of guilt, on his plea of "true" to allegations contained in the application to adjudicate, for the offense of possession of a controlled substance, penalty group one. See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003). Sheppard was sentenced by the trial court to eighteen months' confinement in a state-jail facility.

On appeal to this Court, Sheppard contends, in a single point of error, that the punishment assessed is disproportionate to his crime. Sheppard's motion for new trial contains a contention that the sentence was disproportionate to the offense. A motion for new trial is an appropriate way to preserve this type of claim for review. See Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.).

Texas courts have traditionally held that, so 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., Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here, Sheppard's sentence falls within the applicable range of 180 days to two years. See Tex. Penal Code Ann. § 12.35 (Vernon 2003).

That does not end the inquiry. 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. U.S. Const. amend. VIII; see Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Solem v. Helm, 463 U.S. 277, 290 (1983); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.--Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.--Dallas 1994, pet. ref'd); see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (describing this principle as involving a "very limited, 'exceedingly rare,' and somewhat amorphous" review).

Solem had suggested, as a three-part test, that an appellate court consider: (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. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the viability of the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin, but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Lackey, 881 S.W.2d at 420-21. In light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence, and then, only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors--(1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.--Texarkana 2006, no pet.); Lackey, 881 S.W.2d at 420-21.

Assuming, without deciding, that Sheppard's sentence is grossly disproportionate to the crime he committed, there is no evidence in the record from which we could compare his sentence to the sentences imposed on other persons in Texas or on persons in other jurisdictions who committed a similar offense. See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.--Texarkana 2000, pet. ref'd); Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.--Texarkana 1995, pet. ref'd). Without such evidence, the record before us does not support Sheppard's claim of demonstrable error. Cf. Jackson, 989 S.W.2d at 846 ("there is no evidence in the record reflecting sentences imposed for similar offenses on criminals in Texas or other jurisdictions by which to make a comparison").

There being no other issues before us, we affirm the trial court's judgment.

Bailey Moseley

Justice

Date Submitted: September 6, 2007

Date Decided: September 7, 2007

Do Not Publish

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-08-00195-CR

                             WANDA HIGBEE SCHINDLEY, Appellant

                                                  On Appeal from the County Court

                                                           Franklin County, Texas

                                                            Trial Court No. 11134

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                     MEMORANDUM  OPINION

            Wanda Higbee Schindley appeals from her conviction for misdemeanor driving while intoxicated.  On September 4, 2008, Schindley was convicted, and the jury assessed punishment at 120 days’ confinement probated for two years and a $1,000.00 fine.  This case has had a wandering path through the legal system after Schindley’s retained appellate attorney failed to seek preparation of a record to pursue her initial appeal, followed by a dismissal by this Court and its ultimate remand back to this Court by the Texas Court of Criminal Appeals, with directions to abate for a hearing on (among other things) her indigency.  The trial court held a hearing and found Schindley not indigent.  She appealed to this Court, and after briefing, on September 29, 2009, we reversed the trial court and directed that she be appointed counsel and provided a free copy of the reporter’s record.  After multiple extensions and an order to the court reporter from this Court, a free record was provided, and now, finally, over a year and a half after the trial, her appeal is ripe for review. 

            Counsel has filed a brief in which he contends in a single point of error that the trial court committed reversible error by failing to administer the proper jury oath required by Article 35.22 of the Texas Code of Criminal Procedure after the panel was selected.  Tex. Code Crim. Proc. Ann. art. 35.22 (Vernon 2006).  Counsel points out that there is authority holding that the complete failure to administer a jury oath renders the verdict a nullity—and that it is reversible error that may be raised for the first time on appeal.  See White v. State, 629 S.W.2d 701, 704 (Tex. Crim. App. 1981) (citing Howard v. State, 80 Tex. Cr. 588, 192 S.W. 770 (1917)); Brown v. State, 220 S.W.3d 552, 554 (Tex. App.—Texarkana 2007, no pet.).

            The reporter’s record as originally presented did not contain any indication that the jurors had been sworn.  After the brief was filed, the State contacted the court reporter, who acknowledged that she had accidentally omitted part of the proceedings.  She then prepared a supplemental record which contains the discourse in which the empaneled jurors were sworn in by the court prior to the commencement of trial.  No error has been shown.

            We affirm the judgment.

                                                                        Jack Carter

Date Submitted:          June 9, 2010

Date Decided:             June 10, 2010