Opinion filed July 17, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00118-CR

__________

LELA ANN MOONEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 24804A

M E M O R A N D U M O P I N I O N

Appellant, Lela Ann Mooney, entered an open plea of “guilty” to the offense 

of forgery, a state jail felony. See TEX. PENAL CODE ANN. § 32.21(b), (d) (West 

2011). The trial court assessed her punishment at confinement in the State Jail

Division of the Texas Department of Criminal Justice for a term of two years. In a 

single issue, Appellant argues that her punishment was “grossly disproportionate to 
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the offense and therefore, unjust, cruel and unusual based upon [Appellant’s] 

crime, her age and her need for rehabilitation” in violation of the Eighth 

Amendment of the United States Constitution. See U.S. CONST. amend. VIII. We 

affirm.

Background Facts

The indictment alleged that Appellant intentionally and knowingly, with the 

intent to harm and defraud another, passed as true a check written on Wells Fargo 

Bank, check number 1024, on the account of Miller Trucking. Based on her open

plea of guilty, the trial court found Appellant guilty of the offense of forgery and 

sentenced her to two years’ imprisonment.

Analysis

Appellant argues that her sentence is grossly disproportionate to the offense 

and, therefore, constitutes cruel and unusual punishment. In support of her 

argument, Appellant points to the nature of the offense, her age, and her need for 

rehabilitation. Appellant also contends that her commission of the forgery was 

fueled by her past addiction to methamphetamine.

In reviewing a trial court’s sentencing determination, “a great deal of 

discretion is allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814 

(Tex. Crim. App. 1984). We will not disturb a trial court’s decision as to 

punishment absent a showing of abuse of discretion and harm. Id. As a general 

rule, punishment is not cruel and unusual if it falls within the range of punishment 

established by the legislature. Id.; Dale v. State, 170 S.W.3d 797, 799 (Tex.

App.—Fort Worth 2005, no pet.). In this cause, Appellant was convicted of a 

state jail felony. The statutory range of punishment for a state jail felony is 

confinement in a state jail for any term of not more than two years or less than 180 

days and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.35(a), (b) 
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(West Supp. 2013). Accordingly, Appellant’s two-year sentence is within the 

statutory range of punishment.

A narrow exception to the general rule is recognized when the sentence is 

grossly disproportionate to the offense. Harmelin v. Michigan, 501 U.S. 957, 

1004–05 (1991) (Kennedy, J., concurring); Solem v. Helm, 463 U.S. 277, 290–92 

(1983); Dale, 170 S.W.3d at 799. In such cases, the sentence violates the Eighth 

Amendment’s prohibition against cruel and unusual punishment. Solem, 463 U.S. 

at 290; Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st 

Dist.] 1997, pet. ref’d). Thus, a prohibition against grossly disproportionate 

punishment survives under the Federal Constitution apart from any consideration 

of whether the punishment assessed is within the statute’s range. Delacruz v. 

State, 167 S.W.3d 904, 906 (Tex. App.—Texarkana 2005, no pet.). However, 

“[o]utside the context of capital punishment, successful challenges to the 

proportionality of particular sentences [will be] exceedingly rare.” Solem, 463 

U.S. at 289–90 (alterations in original) (quoting Rummel v. Estelle, 445 U.S. 263, 

272 (1980)).

In considering a claim that a sentence is disproportionate, we first make a 

threshold comparison of the gravity of an appellant’s offense against the severity 

of his or her sentence. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); 

Dale, 170 S.W.3d at 799–800. We consider the gravity of the offense in light of 

the harm caused or threatened to the victim or society and the culpability of the 

offender. Solem, 463 U.S. at 292; Dale, 170 S.W.3d at 800. We also consider the 

sentence imposed in light of the offender’s prior adjudicated and unadjudicated 

offenses. Culton v. State, 95 S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.] 

2002, pet. ref’d); see McGruder, 954 F.2d at 316. Only if we infer that the 

sentence is grossly disproportionate to the offense will we then compare the 

sentence received to sentences imposed for similar crimes in Texas and sentences 
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imposed for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; 

Dale, 170 S.W.3d at 800.

During the punishment phase of the trial, Appellant admitted to the acts 

alleged in the indictment and stated that she cashed several checks that she had 

stolen. She explained that the checks were written for amounts ranging from $800 

to $2,500. Additionally, Appellant pleaded “guilty” to the offense of possession of 

a controlled substance and admitted that she possessed four grams of 

methamphetamine. Appellant stated that she was thirty-one years old at the time 

of trial in this case and that she had been using methamphetamine for almost 

twenty years.

Appellant admitted that she was previously placed on community 

supervision for another conviction of forgery through the use of a financial 

instrument and that her community supervision was later revoked because she 

failed to pay the required restitution and court costs. Appellant explained that the 

forged checks in that case were from a closed account in her brother’s name.

Considering the nature of Appellant’s offense in this cause and considering 

the evidence that Appellant committed the charged offense on numerous occasions, 

that she also committed a contemporaneous drug offense, and that she had a prior 

conviction for forgery, we conclude that her two-year sentence is not grossly 

disproportionate to the offense. Because we have concluded that the sentence is 

not grossly disproportionate to the offense, we do not compare Appellant’s 

sentence to sentences imposed for similar crimes in Texas and sentences imposed 

for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Dale, 170 

S.W.3d at 800. Appellant’s sole issue is overruled.
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This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY

JUSTICE

July 17, 2014

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.