In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-09-00161-CR ______________________________

DEVIN ERIC MIMS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 38009-B

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

Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Devin Eric Mims claims error in sentencing by the trial court on a charge of theft, a class C misdemeanor, enhanced by two prior theft convictions. Sentence was imposed in accordance with Section 31.03(e)(4)(D) of the Texas Penal Code for a state-jail felony term of two years’ confinement. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (Vernon Supp. 2009).

Mims complains that (1) the State impermissibly enhanced punishment with a prior theft conviction, when the same prior conviction was used to enhance punishment on a different theft charge, in violation of the Double Jeopardy Clause of the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure, and (2) the trial court erred in failing to consider the full range of punishment in a context that violates his due process rights and implicates the Eighth Amendment protection against cruel and unusual punishment.

We addressed these issues in detail in our opinion of this date on Mims’ appeal in cause number 06-09-00160-CR. For the reasons stated therein, we likewise conclude that error has not been shown in this case.

We affirm the trial court’s judgment.

Josh R. Morriss, III Chief Justice Date Submitted: February 16, 2010 Date Decided: March 9, 2010

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