## NUMBER 13 - 19 - 00 529 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

STEVEN DARRY L STUCKEY , Appellant,

v. THE STATE OF TEXAS , Appellee.
On appeal from the 207th District Court of Comal C ounty, Texas.



## MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Justice Longoria Appellant Steven Darryl Stuckey was convicted of possession of a controlled substance, penalty group 1, one gram or more but less than four grams, a third

- degree felony. See T EX

. H EALTH & S AFETY C ODE A NN

. § § 481.102, 481.115 (c) . By three issues, Stuckey argues that: (1) there was insufficient evidence to support the trial court’s finding of “true” for the prior felony conviction as alleged in enhancement paragraph two; (2) the2 thirty

- year sentence imposed by the trial court was disproportionate to the offense committed ; and (3) Texas Penal Code § 12.42(d) is unconstitutional as applied in this case. We affirm. 1
I. B ACKGROUND In August 2017, two police officers with the New Braunfels Police Department witnessed a vehicle driving on the highway with an expired registration and unconfirmed insurance. Stuckey was the driver of the vehicle. The officers pulled over the vehicle and noticed a broken meth pipe on the floor. As they began a pat search , Stuckey informed the officers that he had marijuana in his front right pocket. The officers retrieved the marijuana but also discovered 2.05 grams of methamphetamine with the marijuana. Stuckey was charged with possession of the methamphetamine. See id. Jury trial began in May 2019. The ju ry found Stuckey guilty of possession of a controlled substance, penalty group 1, in an amount between one and four gram s

. See id. The punishment range for this offense is ordinarily between two and ten years’ imprisonment. See T EX

. P ENAL C ODE A NN

. § 12.34 (a) . However, t he State alleged Stuckey was a habitual felon because he was previously convicted of five felon ies in the State of California between 1991 and 1994

. I f the prior felony convictions were found to be true, the punishment range would inc rease to between twenty

- five and ninety

- nine years’ or life imprisonment. 2 See id. § 12.42(d). Stuckey denied having committed any of the prior offenses, but he conceded that he was convicted in each of the cases.

1 This appeal was transferred from the Third Court of Appeals in Austin pursuant to an order issued by the Texas Supreme Court. See T EX

. G OV ’ T C ODE A NN

. § 73.001.

2 The five prior felonies from California included: assault with a deadly weapon, receiving s tolen property, robbery, and two separate convictions for unlawful taking of a vehicle.3 At the end of the punishment phase, Stuckey objected to the application of the habitual felony offender enhancement based on “remote and stale felony convictions” and argued that a minimum of twenty

- five years’ imprisonment was unjust and disproportionate for a “relatively low

- level o ffense.” The trial court noted Stuckey’s objections but stated it was bound to follow the law as provided. The trial court found the allegations to be true and sentenc ed Stuckey to thirty years’ imprisonment. This appeal followed.
II. E NHANCEMENT P ARAGRAPH In his first issue, Stuckey argues that there was insufficient evidence to support a finding of true on the felony conviction alleged by the State in the second enhancement paragraph of the indictment

. A. Standard of Review and Applicable Law When reviewing the legal sufficiency of the evidence, “ the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt. ” Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) . This same standard is used to evaluate the sufficiency of the evidence supporting a finding of “true” on enhancement paragraphs. See Brooks v. State, 323 S.W.3d 893, 894

– 95 (Tex. Crim. App. 2010) (plurality op.) ; see also Rowe v. State , No. 04

- 10

- 00326

- CR, 2011 WL 3715058, at *2 (Tex. App.

— San Antonio Aug. 24, 2011, no pet.) (mem. op., not designated for publication). The factfinder is the exclusive judge of the facts, the credibi lity of the witnesses, and the weight to be given to the testimony. See Bartlett v. State , 270 S.W.3d 147, 150 (Tex. Crim. App. 2008)

. We give great deference to the trier4 of fact and assume the factfinder resolved all conflicts in the evidence in favor of the verdict. See Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Texas Penal Code § 12.42 provides for an increase/enhancement in the punishment range of felony offenses for habitual felony offenders

. See T EX

. P ENAL C ODE A NN

. § 12.42. According to § 12.42(d), if at the trial of a felony offense, other than a state jail felony offense punishable under § 12.35(a), the evidence shows that a defendant has been previously been finally convicted of two felony offenses, and that the second fel ony conviction is for an offense that occurred subsequent to the first previous conviction becoming final, then that defendant’s range of punishment shall be imprisonment for not

more than life or ninety

- nine years and not less than twenty

- five years. See i d. § 12.42 (d). It is the State’s burden to prove beyond a reasonable doubt that the prior conviction exists, that the conviction is linked to the defendant, and the conviction is “final.” See T EX

. P EN AL C ODE A NN

. § 12.42; Henry v. State, 509 S.W.3d 915, 9 18 (Tex. Crim. App. 2016). A conviction is not final “where imposition of sentence has been suspended and probation granted.” Ex parte Pue , 552 S.W.3d 226, 230 (Tex. Crim. App. 2018)

. However, a probated sentence may be considered final when probation is revoked. See id. To prove final, prior felony convictions, the State is not limited to any one type of evidence. See Flowers v. State, 220 S.W.3d 919, 921

– 22 (Tex. Crim. App. 2007). The State may rely on certified judgments, admissions from the defendant, or other testimony. See id.
B. Analysis Enhancement paragraph two of the indictment alleges that Stuckey was convicted on March 24, 1994 , of the felony offense of receiving stolen pro perty in the Superior Court of California. The offense was allegedly committed on August 14, 1989. The State entered5 into evidence a California judgment showing that Stuckey was sentenced to three year s’ probation on this cause number. However, the record does not reflect that his probation was ever revoked. Therefore, Stuckey argues that there was insufficient evidence to prove beyond a reasonable doubt that this was a final conviction. Stuckey admits that the outcome of the trial is unaffected by the tria l court’s finding as to enhancement paragraph two because there is “sufficient evidence to demonstrate final convictions as to the other enhancement paragraphs, and the conviction in Enhancement Paragraph I is [sic] occurred subsequently to the convictions in Enhancement Paragraphs III, IV, and V. ” Because the trial court’s finding ultimately has no effect on Stuckey’s classification as a habitual felon or the outcome of the case, this issue is moot. See T EX

. R. A PP

. P. 47.1. We overrule Stuckey’s first issue.
I II

. C ONSTITUTIONAL C HALLENGES In his second issue, Stuckey asserts that the sentence imposed by the trial court was disproportionate to the seriousness of the offense committed. See U.S. C ONST

. amend. VIII. In his third issue, Stuckey argues that § 12.42(d) is unconstitutional as applied to him given the remoteness and nature of the prior convictions.
A. Standard of Review and Applicable Law A sentence which falls within the limits prescribed by a valid statute is usually not excessive, crue l, or unusual. See Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.

— Corpus Christi

– Edinburg 2005, pet. ref’d). However, the Eighth Amendment of the United States Constitution also requires that a criminal sentence be proportionate to the crime which was co mmitted to avoid being cruel and unusual. See U.S. C ONST . amend. VIII; Noland v. State , 264 S.W.3d 144, 151 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref ’ d)

.6 To determine whether a sentence for a term of years is grossly disproportionate for a particular d efendant ’ s crime, a court must judge the severity of the sentence in light of the harm caused or threatened to the victim, the culpability of the offender, and the offender ’ s prior adjudicated and unadjudicated offense s. State v. Simpson , 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) . In the “rare case” where the sentence is found to be disproportionate using these criteria, we then compare the defendant’s sentence to the sentences imposed on other defendants in the same jurisdiction and defendants in ot her jurisdictions. See id. ; State v. Stewart , 282 S.W.3d 729, 736 (Tex. App.

— Austin 2009, no pet.). “However, in order to preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a de fendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.” See Noland , 264 S.W.3d at 151; T EX

. R. A PP

. P . 33.1(a).
B. Discussion 1. Disproportionate Sentence The State does not challenge Stuckey’s assertion that he timely raised his objection to the trial court below that the sentence was disproportionate to the offense committed. Therefore, we move onto the proportionality factors, although we note at the
outs et that his sentence of thirty years’ imprisonment is within the statutory range, and, thus, likely not excessive or cruel. See Trevino, 174 S.W.3d at 928

.
a. Harm Caused or Threatened to the Victim In a single paragraph, Stuckey argues in his second issue t hat this is a “mere possession” case, and accordingly, his sentence of thirty years was grossly7 disproportionate to the offense committed. However, the State argues that the evidence and context of the case demonstrate that this is more than a “mere posses sion” case. Stuckey testified that he had a long history with methamphetamines. He has been previously convicted for methamphetamine possession, and he tested positive multiple times for methamphetamines while on probation. The New Braunfels police officer s testified that Stuckey admitted to them that he ran a methamphetamine lab in 2009 in Comal County. When his residence was searched, the officers found a methamphetamine lab, marijuana, fifty

- six assorted pills, and methamphetamine. Jail calls introduced at trial suggested that Stuckey was involved in the sale of methamphetamine to a woman named “Jen

- Jen.” At the end of sentencing, the trial court noted, “you are and have been contributing to our meth community. And that is a danger to the public.” On the other hand, p ossession of methamphetamine, by itself, i s a nonviolent crime , and for the most part, the only victim of this offense i s Stuckey himself. Therefore, w e conclude that this factor is mostly neutral

. b. Culpability of the Offender Stuckey acknowledges that he does not belong to any class of offenders for whom a diminished culpability has been recognized. See Miller v. Alabama , 567 U.S. 460 , 471 (2012) (finding that juveniles are less deserving of severe punishments because they have “dimini shed culpability and greater prospects for reform”). Nevertheless, Stuckey argues that this factor should weigh in favor of disproportionality because his offense was “at the lower end of drug offenses.” However, we note that Stuckey has a long history wit h both possessing and producing methamphetamines and committing other violent and

non - violent crimes . Despite being offered rehabilitation, Stuckey has tested positive8 repeatedly. Given that Stuckey does not belong to any class of diminished

- culpability of

fenders, we find that this factor weighs in favor of finding the sentence to not be disproportionate.

c. Prior Adjudicated and Unadjudicated Offenses Concerning adjudicated offenses, Stuckey has been convicted of robbery, receiving stolen property, assault w ith a deadly weapon, possession of methamphetamine, possession of marijuana, failure to identify, and twice for unlawful taking of a vehicle. Stuckey testified regarding the assault with a deadly weapon offense, in which he had taken a cane from an elderly gentleman. Stuckey proceeded to beat the man with his own cane because the man had tried to stop Stuckey from having sex in public with a woman in a shopping cart. The record further reflects that Stuckey committed felonies in California, went to prison, was released from prison, committed an additional felony offense, then moved to Texas where he committed more misdemeanors and felonies. Concerning unadjudicated offenses, Stuckey has been charged with commercial burglary, fraudulent use of an access card, and kidnapping for robbery, all California crimes. Stuckey informed the police officers that he ran a meth lab. He also threatened to stab a patient during his stay in a court ordered treatment facility, while on felony probation for methamphetamine

. Stuc key admits that this factor weighs against finding the sentence to be disproportionate.9 d. Summary Given that th e thirty

- year sentence is on the low end of the statutory range and none of the factors weigh in Stuckey’s favor, we conclude that the sentence i mposed by the trial court was not grossly disproportionate. See Simpson , 488 S.W.3d at 323

. Thus, we do not need to compare Stuckey’s sentence to the sentence received by other defendants. See id. We overrule Stuckey’s second issue. 2. Constitutionality of § 12.42(d) In his third issue, Stuckey argues that § 12.42(d) is unconstitutional as applied to him given the remoteness of his felony convictions and the relatively minor nature of his offense. However, courts have upheld the constitutionality of enhancement statutes. See Spencer v. Texas , 385 U.S. 554, 560 (1967); Rodriguez v. State , 614 S.W.2d 448, 450 (Tex. Crim. App. 1981). Texas courts have also previously upheld the constitutionality of § 12.42(d) , and prior enhancement statutes, regardless of the remoteness of the felony convictions used for enhancement. See Ingram v. State, 426 S.W.2d 877 , 878 (Tex. Crim. App. 1968) (upholding the use of a thirteen

- year - old felony for enhancement purposes) ; Morrison v. State, 336 S.W.2d 173 , 174 ( Tex. Crim. Ap. 1960) ( concluding that the “question of remoteness” is irrelevant when “ the prior conviction is alleged for the purpose of obtaining an enhanced punishment ” ) ; see also Eisenmenger v. State , No. 05

- 08

- 00423

- CR, 2009 WL 988658, at *2 (Tex. App.

— Dallas Apr. 14, 2009, no pet.) (mem. op., not designated for publication) (upholding the use of a twenty

- eight

- year old felony for enhancement purposes )

. Stuckey has offered no reason to deviate from this precedent. We conclude that § 12.42(d) is not unconstitutional as applied to Stuckey. We overrule his third issue.10 I V. C ONCLUSION We affirm the t rial court’s judgment.

NORA L. LONGORIA Justice Do not publish. T EX

. R. A PP

. P. 47.2(b). Delivered and filed on the 18th day of March, 202 1

.