Sullivan v. StateSullivan v. State
- Reporters:
- , ,
- Before:
- Seerden
OPINION
SEERDEN, Chief Justice.A jury found appellant Jerry Sullivan guilty of burglary of a habitation and assessed punishment at confinement for ten years, probated for ten years. Sentence was imposed in accordance with the jury’s findings on September 16, 1987. On September 4, 1997, the State filed a motion to revoke appellant’s community supervision. Sullivan pleaded true to four of the alleged violations. Upon his plea, and after a hearing, the trial court revoked Sullivan’s community supervision and sentenced Sullivan to five years imprisоnment.
In a single point of error, Sullivan complains that, having served all but twelve days of his ten year term оf community supervision, the punishment assessed by the trial court was disproportionate to the seriousness of the violations alleged in the State’s motion to revoke. This, Sullivan concludes, is in contradiсtion to the protections inherent in the Eighth Amendment as applied to the States through the Fourteеnth Amendment. We disagree.
We note at the outset that the five year sentence, although assessed as a result of the State’s motion to revoke, corresponds to the 1987 burglary of a habitation сharge. Thus, any review would evaluate the proportionality of the five year sentence tо the original charge, not to the violations of Sullivan’s term of community supervision. Furthermore, to the еxtent Sullivan’s argument equates the time served on his term of community supervision with punishment, we must disagree. Such contention is certainly rejected by the language of the code of criminal procedure. See
Sullivan, in support of his argument, urges this Court to perform the three-part test sеt out in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Under this test, the proportionality of a sentence is evaluated by considering: (1) the gravity of thе 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, 463 U.S. at 292, 103 S.Ct. 3001. However, a strict application of the Solem tеst has been questioned since the Supreme Court rendered its opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Several Texas courts оf appeals, in discussing the applicability of Solem, observed that although five members of the Supreme Court in Harmelin rejected application of the threе-factor test, seven of the justices in Harmelin supported an Eighth Amendment prohibition against grossly disproportionate sentences. See Simmons v. State, 944 S.W.2d 11, 15 (Tex.App.—Tyler 1996, no pet.); Puga v. State, 916 S.W.2d 547, 549 (Tex.App.—San Antonio 1996, no pet.) (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992)); Mathews v. State, 918 S.W.2d 666, 668-69 (Tex.App.—Beaumont 1996, pet. ref‘d); Davis v. State, 905 S.W.2d 655, 664 (Tex.App.—Texarkana 1995, pet. ref‘d); Lackey v. State, 881 S.W.2d 418, 421 (Tex.App.—Dallas 1994, pet. ref‘d). Accordingly, these courts apрlied some form of proportionality analysis.
The Fifth Circuit Court of Appeals, in interpreting Harmelin, first reviews the sentence to determine whether it is grossly disproportionate to the crime. McGruder, 954 F.2d at 316. Only if the court finds the sentence grossly disproportionate will it then consider the remaining factors of the Solem test. Id. This test was applied by the San Antonio, Beaumont, and Dаllas Courts of Appeals. Puga, 916 S.W.2d at 549-50; Mathews, 918 S.W.2d at 669; Lackey, 881 S.W.2d at 421. The Tyler and Texarkana Courts of Appeals evaluated the proportionality of a sentence to the crime under the elements of Solem. Simmons, 944 S.W.2d at 15; Davis, 905 S.W.2d at 665.
Assuming,
arguendo,
the viability of a proportionality review,
1
application оf either test leads us to the conclusion that Sullivan’s sentence was not grossly disproportionatе to the offense he committed. As noted above, Sullivan was found guilty of burglary of a habitation. Burglary of a habitation was, at the time of Sullivan’s conviction, a first degree felony. Act of June 14,1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 927 (amended 1993) (current version at
Accordingly, we hold that under either test, Sullivan’s sentеnce does not violate the cruel and unusual punishment provision of the Eighth Amendment. Sullivan’s sole pоint of error is overruled, and the judgment of the trial court is affirmed.
Notes
. Appellant, in his brief, acknowledges that under Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim.App.1983), an appeal prеfaced on the grounds of disproportionate punishment may be frivolous. In light of our holding, we need not express an opinion on this issue.