NO. 12-17-00064-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JAMIE LEE JARAMIELLO, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

§

APPEAL FROM THE 349TH 

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant, Jamie Lee Jaramiello, appeals from her conviction for possession of a

controlled substance. In two issues, Appellant contends the evidence is insufficient to support 

her conviction and that the sentence imposed is grossly disproportionate to the severity of the 

offense and therefore cruel and unusual. We affirm.

BACKGROUND

During a temporary stop, Appellant identified herself to Sergeant Matthew Kerr of the 

Palestine Police Department. Police dispatch notified Sergeant Kerr that Appellant was a suspect 

in a theft of two cellular telephones. In questioning Appellant, Sergeant Kerr determined that the 

iPhone in her possession was one of the stolen phones. Sergeant Kerr placed Appellant under 

arrest, and proceeded to search her handbag for the second cell phone.

In the bag, Sergeant Kerr first saw a glass marijuana pipe. He then discovered Seroquel 

pills, Xanax, two unidentified pink pills, one used syringe, two unused syringes, and Appellant’s 

wallet. Inside Appellant’s wallet, Sergeant Kerr discovered a plastic bag containing what he

believed to be methamphetamine. Laboratory analysis confirmed the plastic bag contained .3 

grams of methamphetamine.
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During Sergeant Kerr’s search of Appellant’s bag, but before the discovery of the 

methamphetamine, Appellant began yelling to her husband to take responsibility for his 

belongings and that he “can take the charges.” Appellant first told Sergeant Kerr that she did not 

even know where to buy drugs. Later, she gave Sergeant Kerr the name of a known drug dealer 

and offered to buy methamphetamine for the police.

A jury found Appellant guilty of possession of less than one gram of a penalty group one 

controlled substance. The trial court assessed her punishment at twenty one months in the Texas 

Department of Corrections, State Jail Division. This appeal followed. 

EVIDENTIARY SUFFICIENCY

In her first issue, Appellant contends that the evidence is insufficient to support her 

conviction.

Standard of Review

In reviewing the sufficiency of the evidence to support a conviction, appellate courts 

view all of the evidence in the light most favorable to the verdict in order to determine whether 

any rational trier of fact could have found all the essential elements of the crime beyond a 

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 

560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. crim. App. 2010). “All of the evidence” 

includes evidence that was properly and improperly admitted. Clayton v. State, 235 S.W.3d 772, 

778 (Tex. Crim. App. 2007).

The jury is the sole judge of the witnesses’ credibility and the weight to be given their 

testimony. Brooks, 323 S.W.3d at 899. We give deference to the jury’s responsibility to fairly 

resolve evidentiary conflicts, weigh the evidence, and draw reasonable inferences from basic 

facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Circumstantial evidence is as probative as direct evidence in establishing the accused’s guilt. Id.

Applicable Law

The Texas Health and Safety Code provides, in relevant part, “a person commits an 

offense if the person knowingly or intentionally possesses a controlled substance listed in 

Penalty Group 1.” TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2017). 

Methamphetamine is a controlled substance listed in Penalty Group 1. Id. § 481.102(6) (West 

2017).
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To prove unlawful possession of a controlled substance, the State must prove the accused 

(1) exercised care, custody, control, or management over the contraband, and (2) knew the matter 

was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). This 

evidence, whether direct or circumstantial, must establish that the accused’s connection with the 

drug was more than just fortuitous. Id. at 405-06.

If the controlled substance can be seen and measured, the amount is sufficient to establish 

that the accused knew it was a controlled substance. Victor v. State, 995 S.W.2d 216, 220 (Tex. 

App.—Houston [14th Dist.] 1999, pet. ref’d). If the quantity is so small that it cannot be 

quantitatively measured, there must be evidence other than its mere possession to prove that the 

accused knew that the substance in his possession was a controlled substance. Shults v. State, 

575 S.W.2d 29, 30 (Tex. Crim. App. 1979). Texas courts have recognized several factors which 

may singly or in combination, circumstantially establish knowing possession. See, e.g., Evans v. 

State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (a non-exclusive list of 14 factors that 

may link a defendant to the drugs). Among those factors are (1) whether the defendant 

possessed other contraband when arrested, (2) whether drug paraphernalia was present, and (3) 

whether the conduct of the defendant indicated consciousness of guilt. Id. It is the logical force 

of all the evidence, not merely the number of links, that should determine whether the 

defendant’s connection to the contraband is knowing and intentional. Id. 

Discussion

Sergeant Kerr found methamphetamine inside Appellant’s wallet. The wallet was inside 

Appellant’s purse or handbag. Sergeant Kerr also found drug paraphernalia inside the purse,

including three syringes and a marijuana pipe. If more proof were needed, Appellant’s guilty 

conduct during and after the search shows her connection to the drug was not merely fortuitous, 

but knowing and intentional. Before Sergeant Kerr’s discovery of the methamphetamine she 

began telling her husband to take responsibility for his belongings. After the drugs’ discovery, 

she said they were not hers. She claimed she did not even know where to buy drugs. Later she 

suggested she might buy drugs for the police.

Viewing the evidence in the light most favorable to the verdict, we conclude that the 

evidence, direct and circumstantial, coupled with the reasonable inferences drawn from that 

evidence, was sufficient for a rational trier of fact to have found beyond a reasonable doubt that

Appellant possessed the methamphetamine, knowing it was contraband. See Jackson, 443 U.S. 
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at 319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d at 912; Hooper, 214 S.W.3d at 13; TEX.

HEALTH & SAFETY CODE ANN. § 481.115(a), (b). Therefore, the evidence is sufficient to sustain 

her conviction. Appellant’s first issue is overruled.

CRUEL, UNUSUAL OR EXCESSIVE PUNISHMENT

In her second issue, Appellant complains that her punishment “was disproportionate to 

the facts of the case” and therefore cruel and unusual.

Applicable Law

“Throughout this century, the Eighth Amendment has been read to preclude a sentence 

that is greatly disproportionate to the offense, because such sentences are ‘cruel and unusual.’” 

McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992). A proportionality analysis under the 

Eighth Amendment is guided by consideration of (1) the gravity of the offense and the harshness 

of the penalty, (2) the sentences imposed for other crimes in the jurisdiction, and (3) the 

sentences imposed for the same crime in other jurisdictions. Solem v. Helm, 463 U.S. 277, 292, 

103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983). Only if we find that the sentence is grossly 

disproportionate to the sentence will we then consider the remaining factors of the Solem test 

and compare the sentence received to sentences for other crimes in the same jurisdiction and to 

sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316. “A sentence is 

grossly disproportionate to the crime only when an objective comparison of the gravity of the 

offense against the severity of the sentence reveals the sentence to be extreme.” Harris v. State, 

204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d.). “Subject only to a very 

limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross 

disproportionality review, a punishment that falls within the legislatively prescribed range, and 

that is based upon the sentencer’s informed normative judgment, is unassailable on appeal.” Ex 

parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006).

Possession of a Controlled Substance in Penalty Group One in an amount less than one 

gram is a state jail felony with a range of punishment of 180 days to two years in the Texas 

Department of Criminal Justice—State Jail Division. TEX. HEALTH & SAFETY CODE ANN. 

§ 481.115(a), (b); TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 2016). 
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Discussion

In this case, the trial court sentenced Appellant to twenty one months in TDCJ—State Jail 

Division. At sentencing, the trial judge was informed that Appellant had several misdemeanor 

theft convictions and one state jail felony conviction. Appellant did not object to her sentence as 

cruel and unusual or disproportionate nor did she complain on this basis in a motion for new 

trial. Claims of cruel and unusual punishment must be presented in a timely manner. See

Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983); Williams v. State, 191 S.W.3d 

242, 262 (Tex. App.—Austin 2006, no pet.); Steadman v. State, 160 S.W.3d 582, 586 (Tex. 

App.—Waco 2005, pet. ref’d); Nicholas v. State, 56 S.W.3d 760, 763 (Tex. App.—Houston 

[14th Dist.] 2001, pet. ref’d). Appellant has failed to preserve her Eighth Amendment complaint 

for appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) 

(waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 

(Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); see 

also TEX R. APP. P. 33.1; Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) 

(“Preservation of error is a systemic requirement that a first-level appellate court should 

ordinarily review on its own motion[;] ... it [is] incumbent upon the [c]ourt itself to take up error 

preservation as a threshold issue[]”). 

Even if Appellant had preserved error, her Eighth Amendment challenge could not 

prevail. Appellant concedes her sentence is within the statutory range. See TEX. PENAL CODE 

ANN. § 12.35(a). Courts have repeatedly held that punishment which falls within the limits 

prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 

481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); 

Davis v. State, 905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref’d). Appellant 

possessed only a very small amount of methamphetamine. However, the penalty ranges 

prescribed for possession of varying amounts of methamphetamine reflect the legislature’s intent 

to make the punishment fit the crime by graduating the length of sentences according to the 

amount possessed. See TEX. PENAL CODE ANN. § 481.115 (West 2017). 

Moreover, in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980), 

the Supreme Court addressed the proportionality claim of an appellant who had received a 

mandatory life sentence under a prior version of the Texas habitual offender statute for a 

conviction of obtaining $120.75 by false pretenses. See Rummel, 445 U.S. at 266, 100 S. Ct. at 
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1135. A life sentence was imposed because the appellant also had two prior felony 

convictions—one for fraudulent use of a credit card to obtain $80.00 worth of goods or services 

and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 265-66, 100 S.

Ct. at 1134–35. After recognizing the legislative prerogative to classify offenses as felonies and, 

further, considering the purpose of the habitual offender statute, the court determined that the 

appellant’s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445 

U.S. at 284-85, 100 S. Ct. at 1144-45.

In the case at hand, Appellant’s twenty-one month sentence is far less severe than the life 

sentence upheld by the Supreme Court in Rummel. Thus, it is reasonable to conclude that if the 

sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence 

assessed against Appellant in the present case. Therefore, since the threshold test has not been 

satisfied, we need not apply the remaining elements of the Solem test. See McGruder, 954 F.2d 

at 316; see also Jackson v. State, 989 S.W.2d 842, 845–46 (Tex. App.–Texarkana 1999, no pet.).

Considering Appellant’s criminal history and comparing Appellant’s offense with the twenty-one 

month sentence imposed, we conclude the sentence was not grossly disproportionate to the 

offense. Because Appellant’s sentence was not cruel or unusual, her second issue is overruled.

DISPOSITION

Having overruled Appellant two issues, the judgment of the trial court is affirmed.

BILL BASS

Justice

Opinion delivered August 9, 2017.

Panel consisted of Hoyle, J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 9, 2017

NO. 12-17-00064-CR

JAMIE LEE JARAMIELLO,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 349th District Court 

of Anderson County, Texas (Tr.Ct.No. 349CR-15-32254)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Bill Bass, Justice.

Panel consisted of Hoyle, J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,

sitting by assignment.