Philip Tran Harris v. State

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ PHILIP TRAN HARRIS, No. 08-10-00103-CR § Appellant, Appeal from § v. 297th District Court § THE STATE OF TEXAS, of Tarrant County, Texas § Appellee. (TC # 0560025D) §

OPINION

Phillip Tran Harris appeals from a judgment adjudicating him guilty of aggravated possession

with intent to deliver more than 28 but less than 200 grams of lysergic acid diethylamide (LSD) and

assessing punishment at a fine of $5,450 and imprisonment for fifteen years. We affirm.

FACTUAL SUMMARY

The indictment alleged that Appellant committed the charged offense on May 25, 1994. On

September 24, 1999, Appellant entered a plea of guilty and the trial court placed him on deferred

adjudication community supervision for a term of ten years. In 2008, the State filed a motion to

adjudicate guilt alleging Appellant violated several conditions of community supervision. The

motion alleged that Appellant committed a new offense by intentionally and knowingly possessing

more than four but less than 200 grams of methamphetamine in 2008, failed to report, tested positive

for methamphetamine or amphetamine on several dates while on community supervision, and he

failed to attend and complete substance abuse assessment ordered by the trial court. At the

conclusion of the hearing on the State’s motion, the trial court found the evidence sufficient to prove

Appellant had violated the conditions of community supervision. The court granted the State’s motion, adjudicated Appellant’s guilt, and assessed his punishment at a fine of $5,450 and

imprisonment for fifteen years. This appeal follows.

CONSTITUTIONALITY OF SENTENCE

In his sole issue on appeal, Appellant contends that his sentence is excessive and

constitutionally disproportionate in violation of the constitutional provisions of the United States and

Texas Constitutions prohibiting cruel and unusual punishment.1 Appellant’s brief does not contain

any argument or authority explaining how the protection provided by the Texas Constitution differs

from the protection provided by the United States Constitution. State and federal constitutional

claims should be argued in separate grounds, with separate substantive analysis or argument

provided for each ground. Muniz v. State, 851 S.W.2d 238, 251-52 (Tex.Crim.App. 1993); Heitman

v. State, 815 S.W.2d 681, 690-91 n.23 (Tex.Crim.App. 1991). Because Appellant has inadequately

briefed the issue related to the Texas Constitution, nothing is presented for our review. See Muniz,

851 S.W.2d at 251-52; TEX .R.APP .P. 38.1(I).

The Eight Amendment prohibits cruel and unusual punishment. U.S. CONST . AMEND VIII;

Graham v. Florida, --- U.S. ----, ----, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). In addition to

prohibiting inherently barbaric punishment, the Eighth Amendment requires that punishment for

crime be graduated and proportioned to the offense. Graham, 130 S.Ct. at 2021. 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. Mullins v. State,

208 S.W.3d 469, 470 (Tex.App.--Texarkana 2006, no pet.), citing Jordan v. State, 495 S.W.2d 949,

952 (Tex.Crim.App. 1973). At the time Appellant was indicted in 1994, possession of LSD with

1 Appellant’s brief does not identify the constitutional provisions on which he relies but we assume he refers to the Eighth Amendment of the United States Constitution and Article I, Section 13 of the Texas Constitution. intent to deliver was an aggravated offense if the aggregate weight of the controlled substance,

including any dilutants or adulterants, was 28 grams or more. Acts 1989, 71st Leg., R.S., ch. 678,

§ 1, 1989 Tex.Gen.Laws 2230, 2935. The punishment range varied based on the amount possessed.

Acts 1989, 71st Leg., R.S., ch. 678, § 1, 1989 TEX .GEN .LAWS 2230, 2935-36. In the instant case,

the indictment alleged that the aggregate weight of the LSD was 28 grams or more but less than 200

grams. That offense was punishable by a prison term of five years to 99 years or life, and a fine not

to exceed $50,000. Acts 1989, 71st Leg., R.S., ch. 678, § 1, 1989 TEX .GEN .LAWS 2230, 2935.2

Appellant’s fifteen year sentence certainly falls within the applicable punishment range. That is not

dispositive of the issue presented on appeal because a sentence which falls within the statutory range

may still run afoul of the Eighth Amendment’s prohibition against grossly disproportionate

punishment. See Mullins, 208 S.W.3d at 470.

In the context of the issue presented on appeal, Appellant challenges the trial court’s decision

to revoke community supervision and adjudicate him guilty by arguing that he was a good candidate

to continue on community supervision. Whether Appellant was a good candidate for community

supervision is not pertinent to our determination of this issue. Instead, when examining whether a

sentence for a term of years is grossly disproportionate for a particular defendant’s crime, we employ

2 If the aggregate weight were 200 grams or more but less than 400 grams, the punishment range increased to an imprisonment term of 10 years to 99 years or life, and fine not to exceed $100,000. Acts 1989, 71st Leg., R.S., ch. 678, § 1, 1989 T EX .G EN .L AW S 2230, 2935-36. If the aggregate weight were 400 grams or more, the offense was punishable by a prison term of 15 years to 99 years or life and a fine not to exceed $250,000. Acts 1989, 71st Leg., R.S., ch. 678, § 1, 1989 T EX .G EN .L AW S 2230, 2936. LSD is now found in Penalty Group 1-A and it is an offense to manufacture, deliver, or possess with intent to deliver a controlled substance included in Penalty Group 1-A. T EX .H EALTH &S AFETY C O D E A N N . §§ 481.1021, 481.1121 (Vernon 2010). Under current law, a person who possesses between 80 and 4000 “abuse units” of LSD with intent to deliver commits a first degree felony. T EX .H EALTH &S AFETY C O D E A N N . § 481.1121(b)(3). If a person possesses more than 4,000 abuse units with intent to deliver, the offense is punishable by imprisonment for life or for a term of not more than 99 years or less than 15 years and a fine not to exceed $250,000. T EX .H EALTH &S AFETY C OD E A N N . § 481.1121(b)(4). “Abuse unit” is defined as a single unit on or in any adulterant, dilutant, or similar carrier medium, including marked or perforated blotter paper, a tablet, gelatin wafer, sugar cube, or stamp, or other medium if the unit is commonly used in abuse of that substance. T EX .H EALTH &S AFETY C O DE A N N . § 481.002(50). the approach utilized by the Supreme Court in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680,

115 L.Ed.2d 836 (1991). See Graham, 130 S.Ct. at 2022 (stating that Harmelin’s approach is suited

for considering a gross proportionality challenge). Under that analysis, a court begins by making an

objective comparison of the gravity of the offense with the severity of the sentence. Graham, 130

S.Ct. at 2022; Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707 (opinion of Kennedy, J.); Mullins, 208

S.W.3d at 470. If that threshold comparison leads to an inference of gross disproportionality, the

court should then compare the defendant’s sentence: (1) with the sentences imposed in other crimes

in the same jurisdiction; and (2) with the sentences imposed for the same crime in other jurisdictions.

Graham, 130 S.Ct. at 2022; Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707 (opinion of Kennedy, J.);

Mullins, 208 S.W.3d at 470.

At the time Appellant committed the offense, the Texas Legislature had determined that the

aggravated offense should be punished as a first degree felony but with an increased fine. The

sentence assessed by the trial court falls in the lower end of that punishment range. Looking at the

gravity of the offense, it is undisputed that distribution and use of illegal drugs continues to be a

serious issue in our society. In conducting the threshold analysis in Harmelin, a case involving

possession of more than 650 grams or 1.5 pounds of cocaine, the Supreme Court stated that

possession, use, and distribution of illegal drugs represent “one of the greatest problems affecting

the health and welfare of our population.” Harmelin, 501 U.S. at 1002, 111 S.Ct. at 2705 (opinion

of Kennedy, J.), quoting Treasury Employees v. Von Raab, 489 U.S. 656, 668, 109 S.Ct. 1384, 1392,

103 L.Ed.2d 685 (1989). In addition to the pernicious effects on the individual who consumes illegal

drugs, such drugs relate to crime in at least three ways: (1) a drug user may commit crime because

of drug-induced changes in physiological functions, cognitive ability, and mood; (2) a drug user may

commit crime in order to obtain money to buy drugs; and (3) a violent crime may occur as part of the drug business or culture. Harmelin, 501 U.S. at 1002-03, 111 S.Ct. at 2706. Noting that 650

grams of pure cocaine has a potential yield of between 32,500 and 65,000 doses and in light of the

problems created by distribution and use of illegal drugs, the Supreme Court rejected as absurd the

defendant’s argument that his crime was nonviolent and victimless. Harmelin, 501 U.S. at 1002-03,

111 S.Ct. at 2705-06 (opinion of Kennedy, J.).

The record does not reflect how many grams of LSD Appellant actually possessed or how

many doses or “abuse units” were contained in the amount he possessed. In analyzing the gravity

of the crime, it is important to keep in mind that dosages of LSD are measured in micrograms rather

than milligrams.3 The United States Supreme Court described in Chapman v. United States the

nature and manner of sale of LSD:

According to the Sentencing Commission, the LSD in an average dose weighs 0.05 milligrams; there are therefore 20,000 pure doses in a gram. The pure dose is such an infinitesimal amount that it must be sold to retail customers in a “carrier.” Pure LSD is dissolved in a solvent such as alcohol, and either the solution is sprayed on paper or gelatin, or paper is dipped in the solution. The solvent evaporates, leaving minute amounts of LSD trapped in the paper or gel. Then the paper or gel is cut into “one-dose” squares and sold by the dose. Users either swallow the squares, lick them until the drug is released, or drop them into a beverage, thereby releasing the drug. Although gelatin and paper are light, they weigh much more than the LSD. The ten sheets of blotter paper carrying the 1,000 doses sold by petitioners weighed 5.7 grams; the LSD by itself weighed only about 50 milligrams . . . .

Chapman v. United States, 500 U.S. 453, 457, 111 S.Ct. 1919, 1923, 114 L.Ed.2d 524 (1991).

Using the figures from Chapman for purposes of comparison, 28 grams of pure LSD has a

potential yield of 560,000 doses or “abuse units” in the current terminology of the Texas Penal Code

while 200 grams of pure LSD has a potential yield of 4 million doses or abuse units. Once applied

to a carrier, the number of doses in 28 total grams will vary depending on the weight of the blotter

paper, gelatin, sugar cubes, or other carrier medium. If we continue the analysis using the Chapman

3 There are 1,000 micrograms in a milligram and 1,000,000 micrograms in a gram. figures as a representative example, each sheet of blotter paper containing 100 doses of LSD would

have weighed approximately .57 grams (5.7 grams divided by 10 sheets). Fifty sheets would have

weighed approximately 28.5 grams (50 sheets multiplied by .57 grams per sheet) and would have

yielded 5,000 doses (50 sheets multiplied by 100 doses on each sheet). At the upper end of the

spectrum for this particular offense, 350 sheets of the same blotter paper would have weighed

approximately 199.5 grams (350 sheets multiplied by .57 grams per sheet) and would have yielded

35,000 doses (350 sheets multiplied by 100 doses on each sheet).

Given the continued problem of substance abuse and drug trafficking, and the multiple

threats posed to our society by possession of such a large amount of LSD with intent to deliver, the

Texas Legislature could reasonably find that this offense should be punished as a first degree felony.

See Harmelin, 501 U.S. at 1003, 111 S.Ct. at 2706. We conclude that an inference of gross

disproportionality has not been shown in this case. Consequently, it is unnecessary to proceed

further with the analysis. See Graham, 130 S.Ct. at 2022; Harmelin, 501 U.S. at 1005, 111 S.Ct. at

2707 (opinion of Kennedy, J.); Mullins, 208 S.W.3d at 470. We overrule Appellant’s sole issue on

appeal and affirm the judgment of the trial court.

June 8, 2011 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)