NUMBER 12-15-00077-CR 

IN THE TWELFTH DISTRICT COURT OF APPEALS 

TYLER, TEXAS 

 

ROXANNE YVETTE DAVIS, 

Appellant 

v. 

THE STATE OF TEXAS, 

Appellee 

 

From the 241st District Court of Smith County, Texas

Trial Cause Number 241-1149-14

STATE’S BRIEF 

ORAL ARGUMENT NOT REQUESTED

D. MATT BINGHAM 

Criminal District Attorney

Smith County, Texas

AARON REDIKER 

Assistant District Attorney

State Bar of Texas Number 24046692

Smith County Courthouse, 4th Floor

Tyler, Texas 75702

Phone: (903) 590-1720

Fax: (903) 590-1719

Email: arediker@smith-county.com

ACCEPTED

12-15-00077-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

8/5/2015 11:40:00 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 8/5/2015 11:40:00 PM CATHY S. LUSK Clerk
1

Table of Contents 

Index of Authorities............................................................................................................ 2

Statement of Facts............................................................................................................... 3

Summary of Argument....................................................................................................... 4

I.ISSUES ONE AND TWO: By not objecting to her sixteen-month sentence for state jail 

felony theft as cruel and unusual, appellant failed to preserve any alleged error for 

review.................................................................................................................................... 5

Standard of Review............................................................................................................. 5

Argument.............................................................................................................................. 6

Certificate of Compliance ................................................................................................ 10

Certificate of Service ........................................................................................................ 10
2

INDEX OF AUTHORITIES 

Constitutional Provisions

U.S. CONST. amend. VIII....................................................................................................... 6

U.S. CONST. amend. XIV....................................................................................................... 6

 

Federal Cases

Harmelin v. Michigan, 501 U.S. 957 (1991) ......................................................................... 6

McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992).............................................................. 6

Smallwood v. Scott, 73 F.3d 1343 (5th Cir. 1996) ................................................................ 8

Solem v. Helm, 463 U.S. 277 (1983)...................................................................................... 5

Texas Cases

Buster v. State, 144 S.W.3d 71 (Tex. App.—Tyler 2004, no pet.) ..................................... 7

Curry v. State, 910 S.W.2d 490 (Tex. Crim. App. 1995)..................................................... 7

Davis v. State, 119 S.W.3d 359 (Tex. App.—Waco 2003, pet. ref’d)................................. 7

Davis v. State, 905 S.W.2d 655 (Tex. App.—Texarkana 1995, pet. ref'd)........................ 5

Jackson v. State, 989 S.W.2d 842 (Tex. App.—Texarkana 1999, no pet.) ........................ 6

Jacobs v. State, 80 S.W.3d 631 (Tex. App.—Tyler 2002, no pet.).................................. 7, 8

Lackey v. State, 881 S.W.2d 418 (Tex. App.—Dallas 1994, pet. ref’d).............................. 8

Simmons v. State, 944 S.W.2d 11 (Tex. App.—Tyler 1996, pet. ref’d) .....................5, 6, 8

 

Texas Statutes

Tex. Code Crim. Proc. Ann. art. 1.09................................................................................. 6

Tex. Penal Code Ann. § 12.35............................................................................................. 7

Tex. Penal Code Ann. § 31.03............................................................................................. 7

 

Texas Rules

Tex. R. App. P. 33.1............................................................................................................... 7
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NUMBER 12-15-00077-CR

IN THE TWELFTH DISTRICT COURT OF APPEALS 

TYLER, TEXAS 

 

ROXANNE YVETTE DAVIS, 

Appellant 

v. 

THE STATE OF TEXAS, 

Appellee 

 

From the 241st District Court of Smith County, Texas

Trial Cause Number 241-1149-14

STATE’S BRIEF 

TO THE HONORABLE COURT OF APPEALS:

Comes now the State of Texas, by and through the undersigned Assistant 

Criminal District Attorney, respectfully requesting that this Court overrule

appellant’s alleged issues and affirm the judgment of the trial court in the abovecaptioned cause.

STATEMENT OF FACTS

Appellant, with her counsel, entered a nonnegotiated plea of guilty to the 

offense of state jail felony theft as charged in the indictment (I Rep.’s R. at 4, 13; 
4

Clerk’s R. at 1). After accepting appellant’s plea of guilty and hearing evidence on 

the issue of punishment, including testimony regarding her extensive criminal 

history of more than twenty-three prior convictions1(II Rep.’s R. at 38), the trial 

court sentenced her to confinement for sixteen months in the Texas Department 

of Criminal Justice—State Jail Division without a fine (Id. at 76). Appellant raised 

no objection to her sentence at the time of formal pronouncement and did not file 

a motion for new trial (Id. at 76, 79). 

SUMMARY OF ARGUMENT

Appellant forfeited any challenge to her sentence of sixteen months for state 

jail felony theft as cruel and unusual by failing to raise an objection in the trial 

court. Even had appellant preserved the alleged error, her sentence was not 

grossly disproportionate to the offense she committed, especially in light of her 

extensive criminal history. 

 

1

 During the plea and sentencing hearing, appellant acknowledged that she had eleven prior 

felony convictions and twelve prior misdemeanor convictions, many of which were for theft 

offenses (II Rep.’s R. at 38).
5

I. ISSUES ONE AND TWO: By not objecting to her sixteen-month sentence for state 

jail felony theft as cruel and unusual, appellant failed to preserve any alleged error 

for review.

STANDARD OF REVIEW

“The legislature is vested with the power to define crimes and prescribe 

penalties.” Contreras v. State, 369 S.W.3d 689, 690 (Tex. App.—Tyler 2012, no pet.)

(mem. op.) (citing Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. 

ref'd)). “Courts have repeatedly held that punishment which falls within the limits 

prescribed by a valid statute is not excessive, cruel, or unusual.” Simmons v. State, 

944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d). Under the Solem test, “the 

proportionality of a sentence is evaluated by considering (1) the gravity of the 

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.” Contreras, 369 S.W.3d at 690 (citing Solem 

v. Helm, 463 U.S. 277, 292 (1983)). “The application of the Solem test has been 

modified by Texas courts and the Fifth Circuit Court of Appeals in light of the 

Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 
6

L. Ed. 2d 836 (1991) to require a threshold determination that the sentence is 

grossly disproportionate to the crime before addressing the remaining elements.” 

Id. (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Jackson v. State, 989 

S.W.2d 842, 845-46 (Tex. App.—Texarkana 1999, no pet.)).

ARGUMENT

In hertwo alleged issues, appellant argues that hersixteen-month sentence for 

state jail felony theft constitutes cruel and unusual punishment in violation of the 

Eighth and Fourteenth Amendments to the United States Constitution and article 

1.09 of the Texas Code of Criminal Procedure 2 (Appellant’s Br. 5). U.S. CONST. 

amends. VIII, XIV; Tex. Code Crim. Proc. Ann. art. 1.09 (West 2014). However, 

appellant did not object to her sentence at trial as cruel and unusual or raise the 

issue in a motion for new trial (II Rep.’s R. at 76, 79). As appellant did not timely 

object to her sentence as constituting cruel or unusual punishment, she failed to 

preserve any alleged error for review, and her first and second issues should be 

 

2 As appellant cites no authority requiring this Court to analyze her claims differently under 

federal or Texas law, they will be addressed together. Simmons, 944 S.W.2d at 14.
7

overruled. Tex. R. App. P. 33.1(a); Contreras, 369 S.W.3d at 690 (citing Curry v. State, 

910 S.W.2d 490, 497 (Tex. Crim. App. 1995)). 

Even if appellant had not forfeited her claim, her sixteen-month sentence is not 

grossly disproportionate to the offense to which she pleaded guilty, stealing a 

purse valued at less than $ 1,500 where appellant had been previously convicted 

two or more times of theft, a state jail felony (Clerk’s R. at 1). See Tex. Penal Code 

Ann. § 31.03(e)(4)(D) (West 2014). Appellant’s sentence of confinement for sixteen 

months in the Texas Department of Criminal Justice—State Jail Division without a 

fine was well within the range set for forth by the legislature for a state jail felony, 

and therefore, “the punishment is not prohibited as cruel, unusual or excessive per 

se.” Jacobs v. State, 80 S.W.3d 631, 633 (Tex. App.—Tyler 2002, no pet.); Tex. Penal 

Code Ann. § 12.35(a), (b) (West 2014). “In determining whether a sentence is 

grossly disproportionate, we consider not only the present offense but also an 

accused's criminal history.” Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, 

no pet.) (citing Davis v. State, 119 S.W.3d 359, 363 (Tex. App.—Waco 2003, pet. ref’d)). 

Appellant’s punishment assessed falls well within the permissible range, and when 
8

viewed in light of her extensive criminal history of twenty-three prior convictions, 

is not grossly disproportionate to the offense she committed. See Smallwood v. Scott, 

73 F.3d 1343, 1348 (5th Cir. 1996) (fifty-year sentence under recidivist statute for 

stealing $27.64 in meat not grossly disproportionate based on defendant’s criminal 

history); Lackey v. State, 881 S.W.2d 418, 420 (Tex. App.—Dallas 1994, pet. ref’d)

(sentence of thirty-five years under recidivist statute for shoplifting clothing 

valued at $145 not cruel and unusual punishment); Simmons, 944 S.W.2d at 15 

(sentence of fifty years’ confinement and $5,000 for delivery of cocaine not grossly 

disproportionate considering the defendant’s criminal history). Even assuming 

that the threshold test for gross disproportionality was met, the remaining 

elements of the Solem cannot be satisfied: “[t]here is no evidence in the appellate 

record reflecting the sentences imposed on criminals in Texas or other 

jurisdictions who committed a similar offense; therefore, we may not engage in a 

comparative evaluation.” Jacobs, 80 S.W.3d at 633 (citing Simmons, 944 S.W.2d at 15).
9

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court 

overrule appellant’s alleged issues and affirm the judgment of the 241st District 

Court of Smith County, Texas, in the above-captioned cause.

Respectfully submitted,

D. MATT BINGHAM

Criminal District Attorney

Smith County, Texas

/s/ Aaron Rediker

Aaron Rediker

Assistant District Attorney

SBOT #: 24046692

100 North Broadway, 4th Floor

Tyler, Texas 75702

Office: (903) 590-1720

Fax: (903) 590-1719 (fax)

arediker@smith-county.com

 

 

 

 

 

 

 
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CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned 

attorney certifies that the word count for this document is 1,082 words as 

calculated by Microsoft Word 2013.

/s/ Aaron Rediker

Aaron Rediker

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this 5th day of August 2015, the State’s 

Brief in the above-numbered cause has been electronically filed, and a legible copy 

of the State's Brief has been sent by email to J. Brandt Thorson, attorney for 

appellant, at jbt@jbtfirm.com.

/s/ Aaron Rediker

Aaron Rediker