Opinion filed September 17 , 2015



### In The 

# Eleventh Court of Appeals

____________ 

### No

. 11

- 1 3

- 00 327

- CR

__________ 

### DUSTY LUTTRELL , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 35th District Court Brown County , Texas Trial Court Cause No

. CR22307

M E M O R A N D U M O P I N I O N Dusty Luttrell entered an open plea of guilty to (1) the first

- degree felony
offense of possession of a controlled substance with the intent to deliver
, (2) the state jail felony offense of evading arrest, and (3) the state jail felony offense of possession
of a controlled substance

. The trial court found Appellant guilty of all three offenses
and assessed her punishment at confinement for twenty

- five ye ars for the first

degree f elony and confinement for two years for each of the two state jail felonies

. The trial court sentenced Appellant accordingly and ordered that the three sentences were to run concurrently

. The only issue that Appellant raises on appeal concerns the trial court’s sentence in regard to the first

- degree felony offense

. We affirm.2

The night before police officers arrested Appellant for the felony offense involved in this appeal, Appellant and her cousin by marriage, Patricia Luttrell
, went to Cisco to purchase 48.4 grams of methamphetamine from Ricky Schedule. Meanwhile, Brownwood police had received information from a confidential informant to the effect that Appellant was possessing and selling drugs. O fficers
obtained a w arrant to search A ppellant’s house and vehicles. On the night of the arrest in this case , Appellant and Patricia we re headed to Bangs to make Appellant’s truck payment

. As was the case when Appellant bought the drugs in Cisco, Appellant’s adult autistic d aughter was with her. Police officers were concerned about the effects that a forced entry into Appellant’s house woul d have on her autistic daughter and decided to stop Appellant’s vehicle rather than first execute the warrant at Appellant’s house

. When law enforcement personnel attempted to stop Appellant , she threw the bag of methamphetamine

— th e drugs that
she had purchased the nig ht before in Cisc o

— at Patricia and told her to “get rid of
it.” Appellant continued to drive as the officers pursued the vehicle

. Patricia “panicked ” and hid the methamphetamine in her pants ; she claimed responsibility for the methamphetamine when the police later found it

. After some time in jail, Appellant told Patricia that she wanted t o take responsibility for her actions ; only then did Patricia t ell the police that the methamphetamine w as Appellant’s, not hers. Later, Patricia agreed to a plea bargain in which she agreed to testify at A ppellant’s punishment hearing. In exchange for
h er testimony, the trial court sentenced Patricia to confinement for fifteen years. Investigator Carlyle Gover, with the Brown County Sherriff’s Office , testified that this was the second largest amount of metha mphetamine he had ever seized. Investigator G over further testified that
, depending on the drug dealer, the amount of methamphetamine seize d could be worth anywhere from $3,500 to $4,800.3

In Appellant’s sole issue on appeal
, she argues that her sentence is grossly disproportionate to the crime committed and that the sentence she received constituted cruel and unusual punishment in that it is higher than that imposed on
other criminals in the same jurisdiction and in other jur isdictions. Specifically, Appellant argues that her sentence is grossly disproportionate to Patricia ’s fifteen

year sentence for the same crime. Appellant’s sentence is not grossly disproportionate to the crime committed. The Eighth Amendment prohibits sentences that are “ grossly disproportionate ” to
the offense for which the defendant has been convicted. Bradfield v. State
, 42 S.W.3d 350, 353 (Tex. App.

–– Eastland 2001, p et. ref ’ d) (citing Harmelin v. Michigan
, 501 U.S. 957 (1991)). When a sentence f alls within the range provided by the legislature
, it is generally not “grossly disproportionate” to the offense
committed. See
, e.g. , Jordan v. State , 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).
Th e statutory range of punishment for this offense is conf inement for life or for any

term not less than five years and not more than ninety

- nine years

. T EX

. P ENAL C ODE A NN

. § 12.32(a) (West 2011 ) . Appellant does not argue that her sentence is not within the range that the legislature has provided. However, if the sentence is grossly disproportionate to the offense or
sentences in other similar offenses , the sentence may violate the Eight h Amendment. See Bradfield , 42 S.W.3d at 353. To evaluate the proportionality of a sentence , the first step is for us to make a threshold comparison between the gravity of the offense and the severity of the sentence

. Id

. When analyzing the gravity of the offense, we examine the harm caused or threatened to the victim or society and the culpability
of the offender. See
, e.g. , Hooper v. State , No

. 11

- 10

- 00284

- CR, 2011 WL 3855190, at *3 (Tex. App.

–– Eastland Aug. 31, 2011, pet. ref’d) (citing Solem v. Helm , 463 U.S. 277, 291

– 92 (1983) )

. Only i f grossly disproportionate to the offense
, must we then compare Appellant ’ s sente nce with the sentences received for similar crimes in4

this jurisdiction or sentences received in other jurisdictions. Bradfield , 42 S.W.3d
at 53

– 54. Here, Appellant possessed 48.4 grams of methamphetamine. Investigator
Gover testified that, for Brown County, this was a large amount for a dealer. In fact,
it was t he second largest amount of drugs that he had seized in his career. Further, not only was her autistic daughter present in the car when law enforcement officers

sto pped Appellant
, she was also present at the time that Appellant purchased the methamphetamine. The trial court assessed Appellant’s punishmen t at twenty

- five years ’
confinement. Testimony showed that t he considerable amount of methamphetamine
involved in this case would be extremely harmful to society. Further, Appellant pleaded guilty to possession of this large amount of drugs. It is of no small moment that Appellant’s autistic daughter was present while Appellant was in possession of the drugs. We do not find that the 25

- year sentence is grossly disproportionate to the offense committed by Appellant . Consequently, we need not compare Appellant’s sentence with the sentences received for similar crimes in this or other jurisdictions. We overrule A ppel lant’s sole issue on appeal. We affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

September 17 , 2015 Do not publish. See T EX

. R. A PP

. P . 47.2(b).
Panel consists of: Wright, C.J., W ill son , J ., and Bailey, J

.