1 United States Court of Appeals,

Fifth Circuit.

No. 94-20642.

Simon SMALLWOOD, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division, Respondent-Appellee.

Jan. 23, 1996.

Appeal from the United States District Co urt for the Southern

District of Texas.

Before GARWOOD, DUHÉ and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Simon Smallwood (Smallwood) appeals the

district court's grant of respondent-appellee's motion for summary

judgment and dismissal of his habeas corpu s petition under 28

U.S.C. Section 2254. We affirm.

Facts and Procedural Background

Smallwood was arrested exiting the Fiesta Mart grocery store

at 5800 Lyons Avenue in Houston, Texas with three unpaid for

packages of mea t concealed on his person. This property had a

total value of $27.64, and Smallwood was charged with theft of

property under the value of $750.

The ind ictment contained two paragraphs also charging that

Smallwood had been convicte d of theft on two prior occasions;

these convictions upgraded the offense of conviction— otherwise a

class B misdemeanor—to a third degree felony. Tex.Penal Code Ann.1 This provision was originally contained in subsection

(d)(4)(C) of Section 31.03; it was redesignated as (e)(4)(C) in

1985 and again redesignated as (e)(4)(E) in 1989. See § 31.03,

Historical and Statutory Notes (West 1994). In 1993, this

provision was modified somewhat to increase the value of property

appropriated in the third theft from (less than) $750 to (less

than) $1,500; the subsection was redesignated (in 1993) as

(e)(4)(D).

2 § 31.03(e)(4)(E). 1

The indictment contained two additional paragraphs charging

that Smallwood had been previously convicted of two felonies,

burglary of a building and unlawful possession of a controlled

substance . Accordingly, the Texas habitual offender statute was

invoked, and Smallwood's sentencing range increased to 25 to 99

years, or life. Tex.Penal Code Ann. § 12.42(d).

At trial, the officer from the Loss Prevention Office who

apprehended Smallwood testified that he first observed Smallwood on

the store's surveillance camera picking up meat in the store's meat

department. He subsequently witnessed Smallwood appear in an

expre ss check-out lane, where Smallwood purchased a container of

juice and a loaf of bread. This officer, assisted by a colleague

from the Loss Prevention Office, stopped Smallwood as he exited the

store. Asked about Smallwood's reaction to this initial detention,

the officer testified that Smallwood said, "I know what it's about.

I 'm not going to fight you. I just needed this." A search of

Smallwood pro duced a total of three packages of meat which

S mallwood had secreted in his pants, partially hiding the bulges

with his untucked shirt. On June 4, 1990, the jury found Smallwood

guilty of the charge as a felony by virtue of the two prior theft2 The Court of Appeals for the First District of Texas

affirmed Smallwood's conviction and sentence after considering

three points of error: (1) whether the simultaneous application

of Tex.Penal Code Ann. Sections 31.03(e)(4)(E) and 12.42(d)

results in "double enhancement", placing Smallwood in double

jeopardy in violation of the Fifth, Eighth and Fourteenth

Amendments; (2) whether Smallwood's punishment constituted cruel

and unusual punishment in violation of the Fifth and Eighth

Amendments; and (3) whether Section 31.03(e)(4)(E) is

unconstitutional, violating Smallwood's rights to equal

protection and due process of law. Smallwood v. State, 827

S.W.2d 34 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd). One

justice on the Court of Appeals, relying on Solem v. Helm, 463

U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) dissented from

the holding that Smallwood's sentence did not constitute cruel

and unusual punishment. Smallwood at 38-40. The Court of

Appeals did not address the issue of whether constitutional error

occurred when the trial court refused to give a limiting

instruction in the jury charge regarding the jury's consideration

of evidence of Smallwood's prior theft convictions.

3 We previously granted Smallwood's motion for certificate of

probable cause, the district court having earlier denied such

relief.

3 convictions, and at the subsequent punishment stage, after

receiving evidence that he had nine prior felony convictions,

sentenced Smallwood to 50 years imprisonment.

On direct appeal, the judgment o f the trial court was

affirmed 2

, and discretionary review was subsequently refused by the

Texas Court of Criminal Appeals on May 20, 1992. Smallwood's writ

of habeas corpus was denied by the Texas Court of Criminal Appeals

on September 8, 1993, and Smallwood then filed the instant petition

for writ of habeas corpus in the district court below ( i n forma

pauperis ) on September 27, 1993. The district court granted

respondent's motion for summary judgment on August 16, 1994,

concurrently ordering the dismissal of Smallwood's petition.

Smallwood now brings this appeal. 34 Solem was overruled to the extent that it found in the

Eighth Amendment a guarantee of proportionality. Harmelin v.

Michigan, 501 U.S. 957, 965-66, 111 S.Ct. 2680, 2686, 115 L.Ed.2d

836 (1991).

4 Discussion

Smallwood presents four points of err or. We discuss these

seriatim.

Smallwood's first point is that the district court erred in

its applicati on of the Supreme Court's decision in R ummel v.

Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.E d.2d 382 (1980), to

Smallwood's claim that his sentence of fifty years for misdemeanor

theft—made a felony by virtue of being a third theft conviction,

and enhanced pursuant to Texas' habitual offender sta tute—is

g rossly disproportionate to his crime in violation of the Eig hth

Amendment. Smallwood contends that the district court should

instead have applied the guidelines for reviewing Eighth Amendment

claims set out in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77

L.Ed.2d 637 (1983). 4 We disagree.

In Rummel, the Supreme Court held that a sentence of life

imprisonment with an opportunity for parole after twelve years did

not constitute cruel and unusual punishment in a situatio n where

the defendant, convicted of obtaining $120.75 by false pretenses,

had two prior felony convictions. In so holding, the Court

emphasized a point clearly relevant to Smallwood's contentions of

disproportionality: recidivist statutes punish not only the

offense of conviction but also the "propensities" of the defendant

demonstrated by his prior convictions for other crimes. I d. at5

283-285, 100 S.Ct. at 1144-1145; s ee also McGruder v. Puckett, 954

F.2d 313, 316 & n. 3 (5th Cir.), cert. denied, --- U.S. ----, 113

S.Ct. 146, 121 L.Ed.2d 98 (1992).

In Solem, the Supreme Court held that a sentence of life

imprisonm ent w ithout the possibility of parole—imposed against a

defendant convicted of uttering a worthless check in the amount of

$100—violated the Eighth Amendment's prohibition against cruel and

unusual pu nishment. The defendant's sentence had been enhanced

pursuant to a South Dakota recidivist statute. 463 U.S. at 296-97,

103 S.Ct. at 3013. In reaching its decision, the Supreme Court

enumerated several criteria to be considered in determining whether

a sentence is unconstitutionally disproportionate to the offense:

(1) th e gravity of the offense relative to 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 offense in other jurisdictions. Id. at 292-94, 103 S.Ct. at

3011. The Court distinguished R ummel on its facts and stated that

Rummel was controlling only in a similar factual situation. I d. at

296-297, 300-305 & n. 32, at 3013, 3015-3017 & n. 32.

This Court has noted that Rummel survived Solem, and controls

in cases with factual situations not "clearly distinguishable" from

Rummel. Burt v. Puckett, 933 F.2d 350, 352 (5th Cir.1991). We

also recently obs erved that the Supreme Court's opinion in S olem

must be viewed in light of Harmelin v. Michigan, supra, which

upheld the imposition of a sentence of life imprisonment without

possibility of parole against a defendant convicted of possessing6

more than 650 grams of cocaine. M cGruder v. Puckett, sup ra, 954

F.2d at 315. In light of H armelin, it a ppears that S olem is to

apply only when a threshold comparison of the crime committed to

the sentence imposed leads to an inference of "gross

disproportionality." 501 U.S. at 1005, 111 S.Ct. at 2707. Based

on Harmelin, we concluded that "[o]nly if we infer that the

sentence is gross ly disproportionate to the offense will we then

consider the remaining factors of the Solem test ..." M cGruder,

954 F.2d at 316.

This Court has grappled with this threshold determination of

gross disproportionality on at least two occasions. In McGruder,

we noted that the defendant had a record of prior convictions which

included two separate convictions for armed robbery. Considering

that McGruder's prior convictions included two crimes of violence

per se, and that Rummel' s predicate offenses were

"non-serious"—passing a bad check and passing a forged check—and

further considering that Rummel nevertheless received a mandatory

life sentence with a possibil ity of parole, this Court concluded

that "[t]here c an be no argument, in the light of R ummel, that

McGruder's sentence is disproportionate, much less grossly

disproportionate, to his offense.... Rummel's record of offenses

was much less grave than McGruder's." Id. at 317.

We applied a similar analysis in Duhr v. Collins, No. 93-8169,

20 F.3d 469 (5th Cir. Mar. 29, 1994) (unpublished). In Duhr, the

indictment charged the defendant with misdemeanor DWI and alleged

three prior DWI convictions, the charged misdemeanor DWI offense5 Without elaboration, this Court thereby clarified in Duhr

that Rummel shall apply to situations in which a defendant's

offense of conviction is "doubly enhanced", once from a

misdemeanor to a felony, and again pursuant to a recidivist

statute. It should also be noted that the Texas Court of

Criminal Appeals has held that theft offenses may be doubly

enhanced by the combined application of Sections 31.03(e)(4)(E)

and 12.42(d) of the Texas Penal Code, so long as the prior felony

convictions used to enhance punishment are for offenses other

than theft. Foster v. State, 603 S.W.2d 879, 880

(Tex.Crim.App.1980); Rawlings v. State, 602 S.W.2d 268, 270

(Tex.Crim.App.1980). In Gant v. State, 606 S.W.2d 867, 871 n. 9

(Tex.Crim.App.1980), the Texas Court of Criminal Appeals further

observed that the application of Section 12.42(d) in this context

did not constitute an enhancement for punishment purposes.

Rather, the two or more prior theft convictions are elements of

felony theft, not enhancements.

7 accordingly becoming a felony. No. 93-8169 at 2. Furthermore,

Duhr's prior convictions for possession of marihuan a, theft by

taking and three separate check thefts combined to expose him to a

maximum enhanced sentence of 99 years, with possibility of parole;

the jury sentenced Duhr to 99 years. I d. 5 In deciding to follow

the Supreme Court's reasoning in Rummel, we concluded that:

"As in Rummel, none of Duhr's convictions were for crimes of

violence. However, as the district court observed, felony DWI

is arguably a more serious crime than the theft conviction at

issue in Rummel due to the obvious threat drunk drivers pose

to other motorists and pedestrians." Id. at 9.

McGruder and Duhr may provide a litmus test of sorts for

determining whether a sentence is grossly disproportionate to an

offense. The present case, however, involves a situation in which

the gravity of Smallwood's prior convictions and offense of

conviction do not plainly "exceed" the gravity of the corresponding

offenses in Rummel. Rummel's conviction for obtaining $120.75 by

false pretenses was enhanced based on his prior felony convictions

for (1) fraudulently using a credit card to obtain $80 worth of8

goods and services and (2) passing a forged check in the amount of

$28.36. 445 U.S. at 263, 100 S.Ct. at 1133. Smallwood's felony

conviction for theft of goods valued at $27.64, after two prior

theft convictions, was enhanced based on his prior felony

convictions for burglary of a building and unlawful possession of

a controlled subs tance. The district court rightly considered

Rummel's conviction for obtaining $120 by false pretenses and

Smallwood's theft of $27.64 worth of goods to be at least "of

similar gravity and thus not distinguishable for the purposes of

Eighth Amendment analysis." Furthermore, Smallwood's prior

non-theft convictions could likewise be characterized as comparable

in magnitude to Rummel's. Therefore, the present case does not

lend itself to the threshold finding that this Court made in

McGruder and Duhr.

This distinction aside, however, the rationale supporting our

conclusions in McGruder and Duhr applies equally to th e present

situation. If Rummel's sentence was not grossly disproportionate

to his offense, the same must be true of Smallwood's sentence. The

similarities between the convictions at issue in Rummel and at

present are evident, and no compelling argument has been made that

Smallwood's convictions are less grav e than the "yardstick"

convictions at issue in Rummel. Additionally, we note the district

court's observation that Smallwood's sentence, like Rummel's,

allows for the possibility of parole in approximately the same

time. In upholding Duhr's ninety-nine year sentence, this Court

emphasized the same ameliorative fact. No. 93-8169 at 9. Within9

the analytical framework constructed in McGruder and Duhr,

there fore, the present factual situation is not "clearly

distinguishable" from Rummel, and an analysis of Smallwood's case

under the criteria enumerated in Solem is not warranted.

The second point of error presented by Smallwood in this

appeal is that he was denied due process and the right to trial by

an impartial jury because the jury charge put Smallwood's two prior

theft conv ictions before the jury and the trial court overruled

Smallwood's objection that a l i miting instruction should have

accompanied this charge.

In Thomas v. Estelle, 587 F.2d 695 (5th Cir.1979), this Court

emphasized that "federal courts are not rule-making bodies to

promulgate state rules of criminal procedure. On habeas we are

concerned with violations of state procedur al rules only if the

trial is by them rendered fundamentally unfair." Id. at 698. By

including Smallwood's prior theft convictions in the body of the

main jury charge, the state trial court did not violate any Texas

procedural rule. On the contrary, the Texas Court of Criminal

Appeals has held that, in instructing the jury in a criminal trial

for an offense charged pursuant to Tex.Penal Code Ann. Section

31.03(e)(4)(E), "the prior theft offenses, as jurisdictional

elements of the offense alleged, must be incl uded in the body of

the main charge before the jury is authorized to make a general

finding of guilt ..." G an t v. State, 606 S.W.2d 867, 8716 Tex.Penal Code Ann. Section 31.03(e)(4)(E) codifies the

offense of theft of a felony grade and vests the state district

courts with jurisdiction. The elements of this upgraded theft

offense are the ordinary elements comprising the theft offense of

conviction as well as two prior convictions of any grade of

theft. Gant, 606 S.W.2d at 871 (citing Diamond v. State, 530

S.W.2d 586 (Tex.Crim.App.1975)).

7 No evidence of any prior offenses other than the two prior

theft offenses alleged to make the instant theft a felony was

before the jury before the punishment stage; nor were the

habitual offender prior offense allegations read to the jury

before the punishment stage.

8 In Spencer, the Supreme Court noted that its ruling on the

constitutional issue before it was limited to the

procedures—involving the submission of prior convictions to the

jury—embodied in Vernon's Ann.Tex.Code Crim.Proc. Art. 642

(1941). The Court recognized that Texas had just passed Vernon's

Ann.Tex.Code Crim.Proc. Art. 36.01 (effective Jan. 1, 1966), and

clarified that this new statute was not before the Court. Id.

10 (Tex.Crim.App.1980). 6 Therefore, the trial court properly included

the two prior theft convictions in the jury charge. 7

The remaining issue is whether constitutional error occurred

when the trial court overruled Smallwood's objections and refused

to instruct the jury that it should not consider Smallwood's prior

convictions as evidence of his guilt of the theft for which he was

being tried. In S pencer v. Texas, the United States Supreme Court

rejected a claim that Texas' use of prior convictions in this

context was "so egregiously unfair upon the issue of guilt or

innocence as to offend the provisions of the Fourteenth Amendment

..." 385 U.S. 554, 559, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967).

The Court in Spencer addressed a situation in which a limiting

instruction had been given by the trial court, directing the jury

not to consider the prior convictions in passing upon the issue of

guilt or innocenc e. 385 U.S. at 556-58, 87 S.Ct. at 650. 8 The385 U.S. at 569 n. 2, 87 S.Ct. at 650 n. 2. When Spencer was

tried Texas did not bifurcate trials into guilt-innocence and

punishment stages, and habitual offender allegations in the

indictment were read to the jury.

11 Court afforded some insight, however, into its position regarding

the utility, and perhaps even necessity, of limiting instructions

in this context when it remarked:

"To s ay the United States Constitution is infringed simply

because this type of evidence may be prejudicial and limiting

instructions inadequate to vitiate prejudicial effects, would

make inroads into this entire complex code of state criminal

evidentiary law, and would threaten other large areas of trial

jurisprudence." Id. at 562, 87 S.Ct. at 653.

In Thomas v. Estelle, supra, this Court confronted a situation

in which a limiting instruction had not been given in this context,

and concluded that the absence of such a limiting instruction

precluded the application of Spencer. 587 F.2d at 698. In T homas,

the district court had granted habeas relief to the petitioner

because enhancement paragraphs containing evidence of petitioner's

two prior felony convictions were read to the jury at the outset of

the guilt-innocence portion of the petitioner's bifurcated trial,

and the court did not give a limiting instruction: "the lower

court apparently concluded that the lack of a limiting instruction

allowed the jury to use this enhancement evidence to prejudice

petitioner as one with criminal propensities." I d. This Court,

however, did not reach the issue whether constitutional error

resulted from the admission of prior convictio n enhancement

evidence without a limiting instruction because the petitioner in

Thomas waived his right to raise this issue by failing to object or

to request a limiting instruction at trial. Id. We nevertheless12

observed that, "While we may thin k it wiser that enhancement

paragraphs never be read in the separate guilt proceeding, as Texas

law now requires, we cannot say that due process is denied if the

paragraphs are read and followed by a limiting instruction." Id.

In the present case, Smallwood's counsel did timely object to

opposing counsel's reference—in opening statement—to Smallwood's

prior theft convictions and, subsequently, to the court's inclusion

of Smallwood's two prior theft offenses in the jury charge. Before

submission of the charge to the jury, counsel for Smallwood urged

that the following instruction be read to the jury:

"You are instructed that certain evidence was admitted before

you in regard to the defendant's having b een charged and

convicted of an offense or offenses other than the one for

which he is now on trial. Such evidence cannot be considered

by you against the defendant as any evidence of guilt in this

case. Said evidence was admitted before you for the purpose

of aiding you, if it does aide you, in passing upon the weight

you will give his testimony and you will not consider the same

for any other purpose."

The trial court overruled Smallwood's objections and r efused to

give this requested limiting instruction.

We decline, however, to reach the issue of whether the state

trial court's actions in overruling the objections and refusing to

give this requested limiting instruction constituted constitutional

error bec ause, even if the trial court did commit constitutional

error, this Court clarified in Thomas that such error must have

rendered the trial fundamentally unfair in order to afford a basis

for relief under section 2254. 587 F.2d at 698. Applying this

precept to a claim that a state court's admission of hearsay

evidence violated the defendant's rights under the Confrontat ion13

Clause, this Court noted that "federal habeas corpus reli ef will

not be granted unless the error "had substantial and injurious

effect or influence in determining the jury's verdict.' "

Pemberton v. Colli ns, 991 F.2d 1218, 1226 (5th Cir.) (quoting

Brecht v. Abrahamson, 507 U.S. 619, ----, 113 S.Ct. 1710, 1714, 123

L.Ed.2d 353 (1993)), cert. denied,

--- U.S. ----, 114 S.Ct. 637,

126 L.Ed.2d 596 (1993). In the present case, Smallwood was

apprehended leaving a Fiesta Mart grocery store with packages of

meat, w hich he had not paid for, concealed on his person. The

officer from the Loss Prevention Office who apprehended Smallwood

just outside the door of the store testified that Smallwood said,

"I know what it's about. I'm not going to fight you. I just

needed this." As we noted in Thomas, "The danger inherent in the

admission of prior convictions is that juries may convict a

defendant because he is a "bad man' rather than because evidence of

the crime of which he is charged has proved him guilty." 587 F.2d

at 698 (citing Michelson v. United States, 335 U.S. 469, 475-76, 69

S.Ct. 213, 218-219, 93 L.Ed. 168 (1948)). In the present case, the

s tate trial court's actions in overruling Smallwood's objections

and refusing to give the requested limiting instruction had no

substantial and injurious effect or i nfluence on the jury's

verdict; the evidence of Smallwood's guilt is overwhelming.

We now turn to Smallwood's third point of error, which

asserts that the simultaneous application of Tex.Pena l Code Ann.

Sections 31.03(e)(4)(E) and 12.42(d) constitutes double enhancement

in violation of the Double Jeopardy Clause of the Fifth Amendment.14

In determining whether the imposition of multiple punishments in a

single procee ding violates the Double Jeopardy Clause, it is

necessary to ascertain whether the legislative branch intended the

punishment imposed. M issouri v. Hunter, 459 U.S. 359, 365-369, 103

S.Ct. 673, 678-679, 74 L.Ed.2d 535 (1983). "The legislature may

impose whatever punishments it sees fit for any combination of

crimes subject on ly to the limitations of the eighth amendment."

Davis v. Herring, 800 F.2d 513, 516 (5th Cir.1986).

Smallwood's initial offense o f conviction, a class B

misdemeanor under Texas law, was made a felony grade offense

pursuant to Tex.Penal Code Ann. S ection 31.03(e)(4)(E). This in

turn triggered the ope ration of Tex.Penal Code Ann. Section

12.42(d), the Texas habitual offender enhancement provision.

Smallwood a rgues that Section 31.03(e)(4)(E) is a "special and

specific" enhance ment statute that was intended to apply to the

exclusion of any othe r habitual offender provision. He contends

that it is not at all clear that the state legislature intended for

these two enhancement statutes to be applied in combination.

To the contrary, the Texas Court of Criminal Appeals has held

that the Texas legislature did intend for Sections 31.03(e)(4)(E)

and 12.42(d) to be applied in conjunction. S ee Rawlings v. State,

602 S.W.2d 268, 269-271 (Tex.Crim.App.1980); F oster v. State, 603

S.W.2d 879, 880-881 (Tex.Crim.App.1980). Accordingly, this Court

is bound to accept the Texas courts' construction of these state9 Even where cumulative punishments for the same offense are

authorized by the legislature, the Double Jeopardy Clause is not

offended. See United States v. McCarty, 36 F.3d 1349, 1361 (5th

Cir.1994) (citing Missouri, 459 U.S. at 365-67, 103 S.Ct. at

678).

15 statutes. M issouri, 459 U.S. at 367-69, 10 3 S.Ct. at 679. 9

Moreover, the constitutionality of enhan cement statutes such as

Section 12.42(d) has been sustained against contentions that they

violate "constitutional strictures dealing with double jeopardy, ex

post facto laws, cruel and unusual punishment, due process, equal

protection, and privileges and immunities." S pencer, 385 U.S. 554,

560, 87 S.Ct. 648, 651. The "double enhancement" of Smallwood's

offense did not, therefore, violate the Double Jeopardy Clause.

The fourth and final point of error presented by Smallwood is

that Tex.Penal Code Ann. Section 31.03(e)(4)(E) is unconstitutional

in that: (1) it denies defendants due process and equal

protection; (2) it is applied discriminatorily and

disproportionately to blacks and older defendants; and (3) it is

ambiguous a nd overbroad. The first two of these claims can be

considered together, as Smallwood's contention is that Section

31.03(e)(4)(E) denies equal prote ction in that it is applied

discriminatorily and disproportionately to blacks, older defendants

an d other minorities, such as Mexican-Americans. In support of

this claim, Smallwood states that he knows two other prisoners

sentenced under the above statute, and that both of these prisoners

are black. He concedes that his incarceration and insufficient

funds have precluded "a survey and proper research to prove his

point."16

In Ross v. Estelle, 694 F.2d 1008 (5th Cir.1983), this Court

concluded that "a court cannot consider a habeas petitioner's bald

assertions on a critical is sue in his p ro se petition

... mere

conclusory allegations do not raise a constitutiona l issue in a

habeas proceeding." I d. at 1011-1012. Smallwood's equal

protection allegations do not constitute the kind of evidence

necessary to raise a fact issue sufficient to warrant an

evidentiary hearing. In W icker v. McCotter, 798 F.2d 155 (5th

Cir.1986), this Court recognized that, to raise a fac t issue

warranting an evidentiary hearing on an equal protection claim, "a

statistical proffer must be "so strong that the results would

permit no other inference but that they are the product of racially

discriminatory intent or purpose.' " I d. at 157 (citations

omitted). Smallwood not only does not meet this test, he has not

alleged any facts which would even give rise to any suspicion of a

reasonable possibility that that could be met.

Smallwood additionally contends that Section 31.03(e)(4)(E)

denies equal protection because theft is the only offense of moral

turpitude which includes a provision for enhancing a third offense

misdemeanor to a felony. In support of this contention, he notes

that the theft of services statute, Tex.Penal Code Ann. Section

31.04, contains no comparable provision.

When neither a fundamental right nor a suspect classification

is implicated, a legislative classification is subjec t to review

under the rational basis test to determine if the classification

rationally promotes a legitimate governmental objective. Brennan17

v. Stewart, 834 F.2d 1248, 1257 (5th Cir.1988). The classification

of "theft offenders" does not implicate a suspect class or impinge

upon a fundamental right. Thus, the classification of theft

offenders pursuant to Section 31.03(e)(4)(E) is subject to rational

basis rev iew. There has been no argument made, nor is there any

reason to conclude, that the Texas legislature's decision to punish

repeat theft offenders in this manner is not rationally related to

a legitimate governmental objec tive. "The legislature has the

authority to define different offenses and to p rovide different

penalties for them." Perkins v. Cabana, 794 F.2d 168, 169 (5th

Cir.), cert. denied, 479 U.S. 936 , 107 S.Ct. 414, 93 L.Ed.2d 366

(1986).

Smallwood's final equal protection claim challenges the

alleged pract ice by which the decision—left to the discretion of

the prosecutor—to apply these two enhancement provisions together

is made only after a defendant refuses a plea bargain. It is clear

that due process is not violated when a state prosecutor exercises

his discretion and charges a defendant as a habitual offender for

refusing a plea bargain. B ordenkircher v. Hayes, 434 U.S. 357, 98

S.Ct. 663, 54 L.Ed.2d 604 (1978).

In the third component of this challenge to the

constitutionality of Section 31.03(e)(4)(E), Smallwood claims that

this statutory provision is ambiguous and overbroad. In support of

this claim, Smallwood notes that: Section 31.03(e)(4)(E) reaches10 This was the range of theft offenses encompassed within

the language of Section 31.03(e)(4)(E) at the time Smallwood was

charged.

18 thefts from $.01 to $750.00 10 ; Texas courts have demonstrated some

confusion over whether this statute is an enhanceme nt statute;

and, a person of common intelligence is required to guess whether

the legislature intended that Section 31.03(e)(4)(E) may be joined

with the habitual offender statute.

"A penal statute is void for vagueness unless it "define[s]

the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner

that does not encourage arbitrary and discriminatory enforcement.'

" B uckley v. Collins, 904 F.2d 263, 266 (5th Cir.), cert. denied,

498 U.S. 990, 111 S.Ct. 532, 112 L.Ed.2d 543 (1990) ( quoting

Kolender v. Lawson, 461 U.S. 352, 356-58, 103 S.Ct. 1855, 1858, 75

L.Ed.2 d 903 (1983). While it may be arguable that Texas courts

have demonstrated some confusion regarding the characterization of

Section 31.03(e)(4)(E) as an enhancement statute, this ambiguity

can have no effect on Smallwood's understanding of what conduct is

prohibited by Section 31.03(e)(4)(E)—theft. S ee Gant v. State, 606

S.W.2d 867, 871-872 n. 9 (Tex.Crim.App.1980). Smallwood fails to

explain how the purportedly uncer tain joint applicability of

Sections 31.03(e)(4)(E) and 12.42(d) impacted his understanding of

what cond uct was prohibited. The fact that overlapping statutes

create uncertainty as to which crime may be charged—and therefore

which penalties m ight be imposed—does not render the overlapping

statu t es unconstitutionally ambiguous as long as the statutes19

clearly define the prohibited conduct and authorized puni shment.

United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198,

2204, 60 L.Ed.2d 755 (1979).

Finally, Smallwood's argument that Section 31.03(e)(4)(E) is

overbroad mus t fail. A statute is overbroad if it reaches a

substantial amount of constitutionally protected conduct. F erguson

v. Estelle, 718 F.2d 730, 732-733 (5th Cir.1983). Smallwood has

failed to explain how stealing goods of any value might be

constitutionally protected conduct.

Conclusion

Having fu l ly considered and rejected each of Smallwood's

points of error, the judgment of the district court is accordingly

AFFIRMED.