.~

Judgment affirmed and Opinion filed May 25, 1995 

In The 

<!tourt of .App~als

For The 

ltrirst ilistrirt of m~xas

NO. 01-94-00590-CR 

TIMOTHY DALE SINGLETON, Appellant 

v. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 183rd District Court
 

Harris County, Texas
 

Trial Court Cause No. 646193
 

OPINION 

Appellant, Timothy Dale Singleton, appeals from his conviction for 

possession of a controlled substance. Appellant entered a plea of not guilty, but was 

found guilty by a jury. Appellant pled true to two enhancement paragraphs and the trial 

court assessed punishment at 35-years confinement in prison. 

In two points of error, appellant argues the punishment assessed by the trial 

court was cruel and unusual, in violation of the U.S. and Texas constitutions and the Code 

of Criminal Procedure. We affirm. 
r 

" 

Summary of facts 

Appellant specifically does not challenge the sufficiency of the evidence to 

support his conviction for possession of a controlled substance, namely cocaine, in an 

amount weighing less than 28 grams. Two Harris County sheriff's deputies testified they 

saw appellant holding what appeared to be a "crack pipe." After appellant fell down in 

an attempt to evade arrest, a "crack pipe" was found on the ground near appellant. 

Appellant was arrested for evading detention and for possession of narcotics 

paraphernalia. A small plastic container was found on appellant when he was searched 

pursuant to his arrest. Subsequent analysis of the "crack pipe" and container indicated 

the two items contained a total of 59.33 milligrams of cocaine. Following his conviction 

and sentencing, appellant filed written notice of appeal. 

Cruel and unusual punishment 

In his two points of error, appellant contends he received a cruel and 

unusual punishment when the trial cou~t sentenced him to 35-years confinement for 

possession of less than 28 grams of cocaine. Appellant claims the imposition of such a 

punishment is in violation of the eighth amendment;' the Texas Constitution.? and TEX. 

CODE CRIM. P. ANN. art. 1.09 (Vernon 1977). Appellant relies in part on the fact that 

possession of less than one gram of cocaine is currently classified as a state jail felony.t 

although at the time he was convicted it was classified as a second degree felony." 

The Penal Code provides for enhancement of the punishment range for a 

u.S. CONST. amend. VIII. 

2 TEX. CaNST. art. I, § 13. 

3 TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), .115(b) (Vernon 1994). 

4 Act of May 16, 1989, 71st Leg., R.S., ch. 678, sec. 1, § 481.115, 1989 Tex. Gen. 

Laws 2230, 2936, amended by Act of May 29, 1994, 73rd Leg., R.S., ch. 900, sec. 

2.02, § 481.115, 1993 Tex. Gen. Laws 3586, 3706. 

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defendant convicted of a felony offense who has two prior final felony convictions to a 

term of not less than 25 and not more than 99 years. TEX. PENAL CODE ANN. § 12.42(d) 

(Vernon 1994). Appellant concedes the punishment assessed was within the statutory 

range of punishment for a felony enhanced by two prior felony convictions. 

The enhancement of punishment assessed against a defendant under a 

recidivist statute such as section 12.42(d) of the Penal Code does not render the 

punishment cruel and unusual. Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S.Ct. 1133, 

1144-45 (1980); Lackey v. State, 881 S.W.2d 418, 421-22 (Tex. App.--Dallas 1994, pet. 

ref'd). 

Appellant contends that an analysis of his sentence under the factors set 

forth in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001 (1983), supports the conclusion that 

his sentence was disproportionate to the offense committed and was therefore cruel and 

unusual. Solem supports the proposition that a sentence may be constitutionally defective 

when it is not proportionate to the offense committed. Although appellant has correctly 

stated the holding of Solem, it is distinguishable on its facts from appellant's case. In 

Solem, the defendant was sentenced to life imprisonment without possibility of parole, 

after enhancement for prior convictions, for writing a "no account" check. 463 U.S. at 

279-81, 103 S.Ct. at 3004-05. Appellant was sentenced by the trial court to 35-years 

confinement with the possibility of parole, after enhancement for two prior convictions, 

for possession of approximately 60 milligrams of cocaine. 

Although appellant provides the revised sentencing guidelines of the Penal 

Code for comparison purposes, we do not believe the guidelines were revised to be 

dispositive of the issue. In addition, appellant presents no authority to support the 

contention that the trial court has the discretion to apply or look for guidance to 

sentencing guidelines under a revision of the Penal Code that did not become effective 

until September 1, 1994, three months after his conviction. 

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Based on this record, we conclude appellant's punishment was not cruel and 

unusual, and we overrule appellant's points of error. 

Finding no reversible error, we affirm the judgment of the trial court. 

lsi Davie L. Wilson 

Davie L. Wilson 

Justice 

Justices Cohen and Andell also sitting. 

Do not publish. TEX. R. ,ApP. P. 90. 

Judgment rendered and opinion delivered MAY 2 5 1995
 

True Copy Attest:
 

~~Margie Thompson
 

Clerk of Court
 

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