Christopher J. Birdow v. State
12-15-00187-CR
| Tex. App. | Oct 30, 2015Background
- Appellant Christopher Jermaine Birdow pled to two counts: Count 1 (engaging in organized criminal activity) — 10 years TDCJ probated with 10 years community supervision and a $10,000 fine (mostly probated); Count 2 (manufacture/delivery of a controlled substance, Pen. Group 1, >=4g <200g) — deferred adjudication.
- The State filed a motion to revoke community supervision and to proceed with adjudication; a revocation/adjudication hearing occurred on July 10, 2015.
- The trial court adjudicated guilt on Count 2 and sentenced Birdow to 40 years’ confinement (within the statutory range of 5–99 years for that offense).
- Appellant challenges the 40-year sentence as grossly disproportionate and violative of the Eighth Amendment and Texas Constitution art. I, §13 protections against cruel and unusual punishment.
- Appellant argues the sentence is excessive when compared to the facts of this case, Birdow’s original deferred adjudication, and sentencing patterns for similar offenses; he seeks vacatur and a new punishment hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a 40‑year sentence for manufacture/delivery (PG1, >=4g <200g) is grossly disproportionate in violation of the Eighth Amendment and Texas Constitution | Birdow: 40 years is grossly disproportionate given the offense facts, his prior deferred adjudication, and comparative sentences; sentence violates Eighth Amendment/Texas Const. | State (as framed by brief): sentence is within statutory range and therefore permissible; the court adjudicated and imposed sentence after revocation | Relief sought in brief: vacate commitment and remand for new punishment hearing; the brief does not include the appellate court’s decision on the merits |
Key Cases Cited
- Solem v. Helm, 463 U.S. 277 (1983) (established proportionality review framework for Eighth Amendment challenges)
- Harmelin v. Michigan, 501 U.S. 957 (1991) (revised and narrowed Solem’s proportionality analysis)
- McGruder v. Puckett, 954 F.2d 313 (5th Cir.) (articulates a two‑step approach—first ask if sentence is grossly disproportionate, then compare sentences locally and nationally)
- Jackson v. State, 989 S.W.2d 842 (Tex. App. — Texarkana) (recognizes Eighth Amendment proscribes grossly disproportionate sentences even within statutory range)
- Lilly v. State, 365 S.W.3d 321 (Ct. Crim. App.) (recent authority on sentencing and proportionality considerations)