In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00235-CR

                                                ______________________________

                          REBECCA WORTHY CLEVELAND, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the 349th Judicial District Court

                                                           Houston County, Texas

                                                         Trial Court No. 09CR-042

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

            Rebecca Worthy Cleveland has appealed from her conviction on her open plea of guilty to the offense of aggravated robbery.  See Tex. Penal Code Ann. § 29.03 (Vernon 2003).  The court sentenced Cleveland to fifty years’ imprisonment.  See Tex. Penal Code Ann. § 12.32 (Vernon Supp. 2009).

            On appeal,^[1] Cleveland contends, in a single point of error, that the punishment assessed is disproportionate to her crime.  Cleveland’s motion for new trial contains a contention that the sentence was disproportionate to the offense.  A motion for new trial is an appropriate way to preserve this type of claim for review.^[2]  See Williamson v. State, 175 S.W.3d 522, 523–24 (Tex. App.––Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.––Texarkana 2005, no pet.).

            Texas courts have traditionally held that as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual.  See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).  Here, Cleveland’s sentence falls within the applicable range of not more than ninety-nine years or less than five years and a fine of up to $10,000.00.  See Tex. Penal Code Ann. § 12.32.

            That does not end the inquiry.  A prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature.  U.S. Const. amend. VIII; see Solem v. Helm, 463 U.S. 277, 290 (1983); Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.––Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420–21 (Tex. App.––Dallas 1994, pet. ref’d); see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (describing this principle as involving a “very limited, ‘exceedingly rare,’ and somewhat amorphous” review).

            Solem had suggested, as a three-part test, that an appellate court consider:  (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.  See Solem, 463 U.S. at 292.  Harmelin at least raised questions about the viability of the Solem three-part test.  In fact, it was subsequently held that proportionality survived Harmelin, but that the Solem three-part test did not.  See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Lackey, 881 S.W.2d at 420–21.  In light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence; and then, only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors—sentences for similar crimes in the same jurisdiction and sentences for the same crime in other jurisdictions.  McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.––Texarkana 2006, no pet.); Lackey, 881 S.W.2d at 420–21.

            We do not believe the sentence was grossly disproportionate to the gravity of the offense, but even if it was, there is no evidence in the record from which we could compare Cleveland’s sentence to the sentences imposed on other persons in Texas or on persons in other jurisdictions who committed a similar offense.  See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.––Texarkana 2000, pet. ref’d); Davis v. State, 905 S.W.3d 655, 664–65 (Tex. App.––Texarkana 1995, pet. ref’d).  Without such evidence, the record before us does not support Cleveland’s claim of demonstrable error.  Cf. Jackson, 989 S.W.2d at 846 (“[T]here is no evidence in the record reflecting sentences imposed for similar offenses on criminals in Texas or other jurisdictions by which to make a comparison.”).

            There being no other issues before us, we affirm the trial court’s judgment.

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          May 4, 2010

Date Decided:             May 7, 2010

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