Tuesday, May 29, 2007

Admissibility of Authenticated Copies of Judgments to Prove a Prior Conviction

Facts:
During the punishment phase of a trial for a defendant convicted of four counts of sexual assault of a child, the State introduced a judgment of conviction for a prior sexual assault of a child and a judgment revoking probation for that conviction to prove the defendant had committed a prior sexual assault of a child. The judgment of conviction had a poor quality fingerprint, but the judgment revoking probation had a good-quality fingerprint which was sufficient to compare to fingerprints which the State had taken from the defendant. The State used an expert to prove the fingerprints from the defendant matched the fingerprints from the revocation judgment. But the State’s expert could not testify that the fingerprint on the judgment of conviction matched the fingerprints taken from the defendant, and the defense objected to the admission of the judgment of conviction because the expert could not testify under oath that the fingerprint on the judgment of conviction matched the defendant’s fingerprints.
The State requested its witness to read the names, cause numbers, and dates of birth listed on both the judgment of conviction and the judgment revoking probation. The prosecutor listed this data on the court white board to link the judgment of conviction to the judgment revoking probation. And over the defense’s objection, the court admitted the judgment of conviction.
Issue:
Did the court err by admitting the judgment of conviction?
Short Answer:
No. The fingerprints pertaining to the prior offense do not need to be physically attached to the judgment of conviction proving the defendant had committed a prior offense. But the State must provide evidence connecting the document proving the prior conviction and the document containing the fingerprints used to prove the person described by the documents is the defendant. And the State used the names, dates of birth, and the cause numbers listed on the documents to link the fingerprints in the judgment of revocation to the judgment of conviction.
Discussion:
There is no exclusive way to prove a defendant has been convicted of prior offenses. Aldridge v. State, 732 S.W.2d 396, 396 (Tex. App.—Dallas 1987, pet. ref’d). And the State may use authenticated copies of judgments or penitentiary packets to prove the prior offenses. Griffin v. State, 181 S.W.3d 818, 820 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d), Aldridge, 732 S.W.2d at 396. But the State must also provide evidence the person described by the authenticated documents is the defendant for the documents to be admissible. Griffin, 181 S.W.3d at 820; Davila v. State, 930 S.W.2d 641 (Tex. App.—El Paso 1996, pet. ref’d). The most common evidence provided to prove the person described in the documents is the defendant is fingerprints, but it is not the only way. Griffin, 181 S.W.3d at 820. And when fingerprints are used, the document containing the fingerprints from the prior conviction does not need to be physically attached to the authenticated judgment of conviction for a prior offense for the document to be admissible as long as the State has other means of proving the two documents pertain to the same case. Davila, 930 S.W.2d at 653.
In Davila v. State, the State used a penitentiary packet and a fingerprint card from the packet during the punishment phase of Davila’s trial to prove Davila had been convicted of a prior offense. Id. at 652. Davila objected to the admissibility of the penitentiary packet because the fingerprint card pertaining to the packet had not been physically attached to the packet. Id. at 652-53. The court of appeals noted the same name was on the packet as on the fingerprint card, and the Texas Department of Corrections number on the fingerprint card matched both the number on the packet and a photograph of the defendant within the packet. Id. at 653. Stating any deficiencies in the condition of the evidence pertained to the weight of the evidence and not its admissibility, the court held the packet and fingerprint card were admissible into evidence. Id.
And there is no substantial difference between the fingerprints in the judgment revoking probation and the fingerprint card in Davila.[1] The fingerprints used to prove the defendant had been convicted of a prior sexual assault of a child were not physically attached to the judgment of conviction. Rather, they were in the judgment revoking probation. But the State produced evidence which linked the fingerprints in the judgment revoking probation to the judgment of conviction: The names on the judgment of conviction and the judgment of revocation were the same; the dates of birth listed on both judgments were the same, and the cause numbers on both judgments were the same. Because both documents contained identical identifying information, the State proved the documents pertained to the same case.
Thus, the State linked the fingerprints on the judgment revoking probation to the judgment of conviction. Because the State linked the two judgments together and linked the defendant’s fingerprints to the fingerprints contained in the judgment revoking probation, the court did not err in admitting the judgment of conviction to prove the defendant had been convicted of a prior sexual assault of a child.
Endnote:
[1] The poor-quality of the fingerprint on the judgment of conviction does not bear on the admissibility of the document because the State was able to link the judgment of conviction to the judgment revoking probation. Instead, the poor quality of the fingerprint bears on the weight of the evidence. Davila v. State, 930 S.W.2d 641 Tex. App.—El Paso 1996, pet. ref’d). And even then it is unlikely a court will find the evidence was insufficient to find the defendant had been convicted of a prior sexual assault of a child. See generally Griffin v. State, 181 S.W.3d 818, 820 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding a penitentiary packet which did not contain any fingerprints was sufficient to prove Griffin had been convicted of a prior felony because it contained other identifying information: gender, skin color, height, date of birth, name, alias, eye color, and hair color).

DWI Enhancement

Issue:

Can a defendant’s prior DWI convictions which occurred greater than ten years ago be used to enhance a DWI committed in 2007 to a third-degree felony?

Short Answer:

Yes. In 2005, the Texas Legislature repealed Tex. Pen. Code Ann. § 49.09(e) which had prohibited the use of DWI convictions occurring more than ten years prior to a current DWI offense to enhance the current DWI offense to a third-degree felony. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 3, 2005 Tex. Gen. Laws 3363, 3365.

Discussion:


If a person commits two DWI offenses and subsequently commits a third, the third DWI can be enhanced to a third-degree felony. Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). But before September 1, 2005, at least one of the prior DWI convictions must have occurred within ten years of the current offense. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But as long as the person was convicted and finished probation, jail time, or parole for all of his prior DWI convictions more than ten years prior to his current conviction, the State could not use them against him. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But the Texas Legislature repealed that prohibition in 2005. See Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). Because the prohibition has been repealed, prior DWI convictions, even those occurring more than ten years ago, can be used to enhance a DWI to a third-degree felony.
But there is an exception: If the DWI offense for which the defendant is currently accused occurred prior to September 1, 2005, then the State can enhance the offense with two prior DWI convictions only if one of the two convictions occurred within ten years of the current offense. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 4, 2005 Tex. Gen. Laws 3363, 3365; see generally Bowers v. State, 77 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Furthermore, if the two prior DWI convictions occurred more than ten years apart from each other, then the later cannot be used to enhance a DWI offense committed before September 1, 2007 to a third-degree felony. State v. Verhoeven, 151 S.W.3d 637, 642-43 (Tex. App.—Fort Worth 2004, pet. ref’d).
Yet this exception does not apply to a DWI committed in 2007 because it occurred after the September 1, 2005 repeal of Tex. Pen. Code Ann. § 49.09(e).
Conclusion:
Because the DWI offense occurred after September 1, 2005, any prior DWI convictions can be used to enhance it to a third-degree felony.

Possession

Facts:

A young man standing in a yard at night spots a police officer and flees. The police officer goes to where the young man had been standing and finds drugs. The young man is later apprehended and charged with possession of a controlled substance even though no drugs are found on him.
Issue:
Was the young man in possession of the drugs?
Short Answer:
No. The evidence is insufficient to prove beyond a reasonable doubt that the young man possessed—had care, custody, control, or management over—the drugs. While it is true the young man ran when he saw the police and the police found drugs where he was standing, the police did not see the young man holding anything before he started running; the quantity of drugs found where the young man was standing was small, making it more likely that someone else may have inadvertently dropped or discarded them, and the police did not see the young man drop or throw anything when he ran.
Discussion:
A person must have “actual care, custody, control, or management” over a controlled substance for her to possess it, and it need not be found on her body. Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon 2003); Williams v. State, 906 S.W.2d 58, 65-66 (Tex. App.—Tyler 1995, pet. ref’d). And the person does not need to have exclusive possession of the place where the drugs are found. Howell v. State, 906 S.W.2d 248, 252-53 (Tex. App.—Fort Worth 1995, pet. ref’d). But the person’s mere presence at the location where a controlled substance is found is “insufficient, by itself,” to convict a person for possessing the controlled substance. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Rather, the State must establish an affirmative link between the person and the controlled substance. Id. at 162. To establish this “affirmative link,” courts have used numerous factors—including a person’s presence at the location where drugs are found—none of which are necessary to prove the affirmative link between the person and the controlled substance. Parker v. State, 192 S.W.3d 801, 805 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). And it is not the number of factors in a particular case but the “logical force” created by the factors which proves or disproves the person’s contact with the controlled substance was not simply “fortuitous.” Id.
The following is a list of non-exclusive factors which the courts have used to determine whether there is an affirmative link between a person and a controlled substance:
(1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the strong odor of [drugs] was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the car; (13) traces of the contraband were found on the accused; and (14) affirmative statements connect the accused to the contraband.


Howell v. State, 906 S.W.2d 248, 252-53 (Tex. App.—Fort Worth 1995, pet. ref’d). Other courts have added “[15] the place where the contraband was found was enclosed, [16] the quantity of the drugs found, [17] the accused possessed a key to the locked location of the drugs, and [18] the accused was in close proximity to a large quantity of contraband.” Broche v. State, 927 S.W.2d 745, 751 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).[1]
In Simmons v. State, 100 S.W.3d 484 (Tex. App.—Texarkana 2003, pet. ref’d), the court used several of these factors to find Simmons was in possession of drugs. A police officer spotted a speeding car in which Simmons was a passenger and pulled it over. Id. at 488. When the car stopped, Simmons fled the car into nearby woods carrying a white bag. Id. The officer called for a canine unit to search for Simmons, and during the search, the canine found a white Wendy’s bag buried under a pile of leaves which matched the description of the bag the officer saw Simmons carrying. Id. at 489. Inside the bag was 1000 grams of cocaine. Id. Simmons was apprehended and convicted for possession of cocaine with the intent to distribute. Id. Simmons argued the State had failed to prove an affirmative link between Simmons and the cocaine, but the court enumerated the factors which proved the affirmative link: (1) Simmons fled into the woods when the officer stopped the car he was riding in; (2) the officer who stopped them saw Simmons carrying a white bag while he fled; (3) the police found a white bag matching the description of the bag the officer saw, and (4) someone had made great efforts to conceal the bag beneath a pile of leaves. Id. at 491. Therefore, the court overruled Simmons’ argument. Id.
Additionally, in In re J.M.C.D., 190 S.W.3d 779 (Tex. App.—El Paso 2006, no pet.), a border patrolman near El Paso spotted six individuals attempting to cross the Mexico-United States border at 3:30 a.m. Id. at 780. Five of the individuals were hunched over, indicating to the patrolman that they were carrying large quantities of drugs. Id. The patrolman pursued the individuals who ran from him. Id. The patrolman apprehended the individuals in an irrigation ditch but did not find any drugs on them. Id. But the patrolman followed the footprints leading to the ditch to five backpacks containing a total of 266 pounds of marijuana. Id. The court held J.M.C.D. was in possession of the marijuana because (1) the marijuana was found near where J.M.C.D. had been standing, as evidenced by the trail of footprints; (2) J.M.C.D. had run from the patrolman; (3) the patrolman saw six individuals carrying something and apprehended six individuals, including J.M.C.D., who were not carrying anything but whose footprints led to 266 pounds of marijuana, and (4) it was unlikely another person “would have discarded such a large quantity of marijuana.” Id at 781. That is, the logical force created by these factors affirmatively linked J.M.C.D. to the marijuana and proved his contact with it was not merely fortuitous.
And like Simmons and J.C.M.D., the police did not find drugs on the young man. Instead, they found drugs in a yard where the young man had been standing. But the young man did not have exclusive possession of the yard, and someone else may have discarded or dropped the drugs. Because the young man did not have exclusive possession of the yard, the State must prove an affirmative link between the young man and the drugs.
To establish an affirmative link between the young man and the boy, the court will consider the factors surrounding the discovery of the drugs and the arrest of the young man. Like Simmons and J.C.M.D., (1) the young man was near where the drugs were found, and (2) he ran when he saw the police, indicating a consciousness of guilt. But unlike Simmons and J.C.M.D., (3) the police did not see the young man holding anything before he started running, and (4) the quantity of drugs found where the young man was standing was small, making it more likely that someone else may have inadvertently dropped or discarded them. And (5) the police did not see the young man drop or throw anything when he ran.
The decisive distinction between the young man and Simmons and J.C.M.D. is that the police did not see the young man holding anything prior to the chase, nor did they see him make any motion to discard anything before he started running. See Hawkins v. State, 99 S.W.3d 890, 895-96 (Tex.App.—Corpus Christi 2003) rev’d on other grounds, 135 S.W.3d 72, (Tex. Crim. App. 2004); Richardson v. State, 2003 WL 1848624 *1, *4 (Tex.App.—Dallas, April 10, 2003) (not designated for publication); Supra note 1. Consider also Tatum v. State, 836 S.W.2d 323, 324, 327 (Tex. App.—Austin 1992, pet. ref’d). Had the arresting officers seen him holding or discard something, the courts would have found the young man to have had care, custody, control or management over the drugs found in the yard. But because the officers did not see the young man holding or discard anything, there is little logical force linking the young man to the drugs. And the State fails to create an affirmative link between the young man and the drugs because the connection between them is merely fortuitous.
Therefore, the young man was not in possession of the drugs.
Conclusion:
The factors indicating the young man was in possession of the drugs—the drugs were conveniently accessible to the young man when he was standing in the yard, and the young man ran when he saw the police, indicating a consciousness of guilt—do not affirmatively link him to the drugs because the police did not see the young man holding anything before he started running; the quantity of drugs found where the young man was standing was small, making it more likely that someone else may have inadvertently dropped or discarded them, and the police did not see the young man drop or throw anything when he ran.
Endnote:

[1] This has been the standard for more than fifteen years. Prior to the establishment of these principles, the Austin Court of Appeals decided Tatum v. State. At least one court of appeals has refused to consider Tatum as precedent because of its use of the outdated legal standard. See Arevalo v. State, 2006 WL 332627 *3, (Tex. App.—San Antonio Feb. 15, 2006, pet. ref’d) (not designated for publication). But the facts in Tatum best approximate the facts presented, and the case may prove useful.
In Tatum, the police approached an abandoned building in an attempt to find two men. 836 S.W.2d 323, 323 (Tex. App.—Austin 1992, pet. ref’d). Tatum was in the building, and when he saw the police, he climbed out a window and ran. Id. The police chased Tatum, and after he hopped a fence, Tatum fell. Id. Tatum attempted to get up and run but was apprehended. Id. at 324. Near Tatum, the police found a syringe filled with cocaine. Id. The police did not see anything in Tatum’s hands during the chase and only saw Tatum make two minor gestures right before he was apprehended. Id. And the area where Tatum was apprehended was known to be a high-drug use area. Id. Considering these facts, the court held the evidence was insufficient to create an affirmative link between Tatum and the syringe. Id. at 327.

Wednesday, May 23, 2007

Use of Prior DWI Convictions to Enhance a the Penalty for a DWI Offense

Issue:

Can a defendant’s prior DWI convictions which occurred greater than ten years ago be used to enhance a DWI committed in 2007 to a third-degree felony?

Short Answer:

Yes. In 2005, the Texas Legislature repealed Tex. Pen. Code Ann. § 49.09(e) which had prohibited the use of DWI convictions occurring more than ten years prior to a current DWI offense to enhance the current DWI offense to a third-degree felony. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 3, 2005 Tex. Gen. Laws 3363, 3365.

Discussion:

If a person commits two DWI offenses and subsequently commits a third, the third DWI can be enhanced to a third-degree felony. Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). But before September 1, 2005, at least one of the prior DWI convictions must have occurred within ten years of the current offense. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But as long as the person was convicted and finished probation, jail time, or parole for all of his prior DWI convictions more than ten years prior to his current conviction, the State could not use them against him. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But the Texas Legislature repealed that prohibition in 2005. See Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). Because the prohibition has been repealed, prior DWI convictions, even those occurring more than ten years ago, can be used to enhance a DWI to a third-degree felony.
But there is an exception: If the DWI offense for which the defendant is currently accused occurred prior to September 1, 2005, then the State can enhance the offense with two prior DWI convictions only if one of the two convictions occurred within ten years of the current offense. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 4, 2005 Tex. Gen. Laws 3363, 3365; see generally Bowers v. State, 77 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Furthermore, if the two prior DWI convictions occurred more than ten years apart from each other, then the later cannot be used to enhance a DWI offense committed before September 1, 2007 to a third-degree felony. State v. Verhoeven, 151 S.W.3d 637, 642-43 (Tex. App.—Fort Worth 2004, pet. ref’d).
Yet this exception does not apply to a DWI committed in 2007 because it occurred after the September 1, 2005 repeal of Tex. Pen. Code Ann. § 49.09(e).

Conclusion:

Because the DWI offense occurred after September 1, 2005, any prior DWI convictions can be used to enhance it to a third-degree felony.

Friday, May 18, 2007

Disproportionate Sentencing

I. United States Supreme Court Precedent

The Eighth Amendment of the Constitution of the United States contains a “narrow proportionality principle” within the guarantee against cruel and unusual punishment.[1] Although reviewing courts should give deference to legislatures, in extremely rare situations, a sentence in a non-death penalty case may be within statutorily approved limits yet still offend the Constitution.[2] In Solem v. Helm, the Court announced a three-tier test to analyze whether an offender’s sentence is proportionate to his crime: A reviewing court must consider “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”[3]

But in recent decisions, the Court has implicitly limited the Solem test. Only eight years after the Court handed down Solem, two justices voted to overrule the Solem test;[4] three others voted to limit it by requiring an offender to meet a threshold showing that his sentence is “grossly disproportionate” to the crime he committed before a court will do an intrajurisdictional or interjurisdictional analysis.[5] Four justices voted to retain the Solem test.[6] Once all the votes were tallied, seven justices approved of the first Solem factor while five justices voted to either overrule or limit the remaining two.[7] In 2003, by a seven-to-two margin, the Court again approved of the first Solem factor to analyze whether a sentence is proportionate to an offense.[8] Therefore, when considering whether a sentence within statutorily approved limits offends the Eighth-amendment guarantee against cruel and unusual punishment, a court must first determine whether a sentence is grossly disproportionate to the crime.

A. A Life Sentence Under a State Recidivist Statute Resulting from Multiple, Non-violent Felony Offenses May Be Disproportionate, But It Is Not Grossly Disproportionate as Long as the Offender Is Parole Eligible within Twenty-five Years.

The Supreme Court has not defined what a grossly disproportionate sentence is, but a comparison of past proportionality cases reveals at least one bright-line standard. Before the Court decided Solem v. Helm, in Rummel v. Estelle, Rummel was charged of obtaining $120.75 under false pretenses in 1973, a felony under Texas law.[9] The prosecution chose to charge Rummel pursuant to Texas’ recidivist statute[10] because he had been convicted of forging a check for $26.36, and for the fraudulent use of a credit card in obtaining $80, both felonies under Texas law.[11] Rummel was convicted, and the jury found the allegations that he had been convicted of two prior felonies true.[12] Under an older version of Texas’ recidivist statute, because he was convicted of a felony and had been convicted of two prior felony offenses, Rummel received a mandatory life sentence with the possibility of parole after twelve years confinement.[13] The Court held the Rummel’s life sentence with the possibility of parole after twelve years imprisonment was not disproportionate to his offense, primarily because he had been convicted for two prior felony convictions in addition to the current conviction.[14]

Three years after its decision in Rummel, the court decided Solem v. Helm. In 1979, the Helm was convicted for writing a no-account check for $100, a felony under South Dakota law.[15] He had been convicted of six, non-violent felonies: three convictions for third-degree burglary, one conviction for obtaining money under false pretenses, one conviction for grand larceny, and one conviction for a third DWI offense.[16] Under South Dakota’s recidivist statute, a person convicted of three prior felony offenses, after being convicted of a fourth, would be sentenced to life imprisonment without the possibility of parole.[17] And Helm was sentenced to life imprisonment without the possibility of parole.[18] After announcing and applying the three tier Solem test, the Court found his sentence of life without parole was disproportionate to the offenses he had committed.[19]

Rummel’s and Helm’s situations were practically identical: Both had been convicted of multiple, relatively minor, non-violent felonies, but Helm’s life sentence was held to be disproportionate while Rummel’s life sentence was not, even though Helm had been convicted of four more felonies than Rummel. It would appear the cases cannot be reconciled.[20] But there is one distinguishing characteristic between the two cases: Rummel was eligible for parole while Helm was not.[21]

And the Court emphasized the distinction between a life sentence with the possibility of parole imposed pursuant to a state recidivist statute and a life sentence without the possibility of parole imposed pursuant to a state recidivist statute in Ewing v. California.[22] The defendant, Ewing, was convicted for stealing three golf clubs worth a total of about $1,200, a felony under California law.[23] Ewing had a long criminal record of misdemeanor convictions and three felony convictions for burglary (one armed) and one felony conviction for theft.[24] Because of his criminal record, California sentenced Ewing pursuant to its recidivist statute for twenty-five years to life imprisonment; that is, Ewing could serve up to life in prison but would be eligible for parole after twenty five years, not considering good-time served credit.[25] Justice O’Connor, writing for a plurality, stated that when an appellate court considers whether a sentence is grossly disproportionate to the offense, the offense must be analyzed within the context of an offender’s prior offenses.[26] Additionally, she emphasized the distinction between Helm and Rummel: Helm’s sentence was disproportionate because he was not eligible for parole while Rummel’s sentence was not disproportionate because he was eligible for parole.[27] Likening Ewing to Rummel because both were eligible for parole, O’Connor held Ewing’s sentence of twenty-five years to life was not grossly disproportionate and did not violate the Constitution.[28]

Therefore, as long as an offender is eligible for parole at least within twenty-five years of his conviction, he can be sentenced to life imprisonment under a state recidivist statute authorizing a life sentence for an offender convicted of three or more felony offenses—even for relatively minor, non-violent felonies, and his sentence will not violate the Eighth-amendment guarantee against cruel and unusual punishment.[29]

B. Further Guidance from the Supreme Court

1. Life Sentences Imposed on First-Time Offenders

Outside the context of life sentences imposed pursuant to state recidivist statutes, the Court has considered when a life sentence imposed on a first-time, non-capital offender may violate the Eighth-amendment guarantee against cruel and unusual punishment.[30] In Harmelin v. Michigan, Harmelin was convicted for the possession of 672 grams of cocaine and received a mandatory life sentence without the possibility of parole, even though he had never been convicted of any prior felony offenses.[31] The court held Harmelin’s sentence of life without parole did not violate the Eighth-amendment guarantee against cruel and unusual punishment.[32] In his concurrence, Justice Kennedy compared Harmelin to Helm.[33] Both were sentenced to life without parole, but Helm’s crime did not involve violence or the threat of violence and was viewed by society as less-serious offense.[34] On the contrary, Harmelin’s crime of possessing 672 grams of cocaine—an amount capable of producing 32,000 to 65,000 hits—threatened to induce other drug-induced crime, crimes to obtain money to buy drugs, and crimes common to the drug-business culture.[35] Unlike Helm’s crimes, Harmelin’s crimes were part of one of the greatest plagues affecting the health and welfare of our society and “threatened grave harm to society.”[36]

From Kennedy’s discussion of Helm’s and Harmelin’s crimes, we find several considerations when determining whether a sentence is grossly disproportionate to the offense for which it was imposed: (1) whether the crime involved violence or the threat of violence, (2) the crime’s impact on society’s welfare, considering the crime in the abstract, (3) the threat of harm to society posed by the defendant’s crime, and (4) society’s attitude toward the seriousness of the crime.[37] Importantly, Justice Kennedy indicated that when measuring society’s attitude toward the seriousness of the crime, the legislature’s determinations are the best barometer to measure society’s collective attitude, thus emphasizing the deference which appellate courts should give to state legislatures.[38]

But the Eighth Amendment does not prohibit a first-time offender from receiving a mandatory life sentence without the possibility of parole after being convicted of a crime.
2. Sentences Other than Life Sentences

In addition to considering whether a life sentence is grossly disproportionate to an offense, the Court has considered whether a specific term of years for a given offense is grossly disproportionate to an offense.[39] In Hutto v. Davis, Davis was convicted for two counts of possessing small amounts of marijuana with the intent to distribute, received a twenty year sentence for each count to run concurrently, and was fined $10,000.[40] And with good-time credit, Davis could have been parole eligible after two-and-one-half years imprisonment.[41] Davis could have been sentenced to forty years in prison for each count and could have been fined $25,000.[42] In a per curiam opinion, the Supreme Court held Davis’ sentence was not grossly disproportionate to the crime of possessing small amounts of marijuana with the intent to distribute.[43] The Court reasoned a federal court reviewing state statutes must rely on objective criteria, and whether a specified term of years for a given crime is excessive is a subjective determination.[44] And the Court further cautioned, “federal courts should be ‘reluctan[t] to review legislatively mandated terms of imprisonment.’”[45]

Thus, it appears that if an offender receives a sentence for a term of years rather than a life sentence, a federal court will not overturn it for being grossly disproportionate under the Eighth Amendment. But the Court has not articulated an objective test for determining whether a sentence is grossly disproportionate to an offense.

C. An Objective Test for Determining Whether a Sentence Is Grossly Disproportionate to the Crime
1. The Test

The Court has repeatedly emphasized the importance of analyzing the proportionality of an offender’s sentence with objective criteria.[46] And Justice Kennedy’s test in Harmelin is most likely to be used as an objective means to analyze the proportionality of an offender’s sentence.[47] Therefore, the most important inquiry in Kennedy’s proportionality test is whether an offender’s sentence is grossly disproportionate to the offense because if he cannot prove his sentence is grossly disproportionate, then his claim fails and no intrajurisdictional or interjurisdictional comparison of sentences for similar crimes will occur.[48]

But no litmus-type test has emerged to determine what a grossly disproportionate sentence is. The only guidance the Court has given is that to determine whether a sentence is grossly disproportionate, a reviewing court must weigh “the gravity of the offense [against] the harshness of the penalty.”[49] However, there appear to be two substantially similar means of weighing the gravity of the offense and the harshness of the penalty. As indicated above, Justice Kennedy implied several criteria with which to weigh an offense against a sentence:[50] (1) whether the crime involved violence or the threat of violence, (2) the crime’s impact on society’s welfare, considering the crime in the abstract, (3) the threat of harm to society posed by the defendant’s crime, and (4) society’s attitude toward the seriousness of the crime.[51] And in Ewing, Justice O’Connor, joined by Justice Kennedy, added that (5) the crime must be considered within the context of an offender’s prior offenses.[52]

And Justice Breyer, in his dissent in Ewing v. California, proposed three factors with which to weigh an offense against a sentence: (1) the time the offender is likely to spend in prison taking into account parole and other mechanisms for early release, (2) the offender’s “sentence-triggering” conduct, including the circumstances surrounding the offense, and (3) the offender’s criminal history.[53]

The two methods are substantially the same. The first factor of Breyer’s test was not expressly addressed by Kennedy in Harmelin, but the distinction between life without parole and life with the possibility of parole indicates this factor is vital to the consideration of whether a sentence is grossly disproportionate.[54] Breyer’s second factor addresses the crime itself and the circumstances surrounding it and encapsulates the first four considerations Kennedy used to analyze Harmelin’s sentence. Certainly, the circumstances of a crime include whether the crime included violence or the threat of violence and the potential impact the offender’s conduct will have on society. But circumstances also expand beyond the proximate consequences of an offender’s conduct to the general consequences a particular type of crime has on society—including the crime’s impact on society’s welfare, considering the crime in the abstract and society’s attitude toward the seriousness of the crime—because these generalized considerations are what made the offender’s conduct criminal in the first place. And finally, the fifth factor of the Kennedy test is just another way of articulating the third factor of the Breyer test.

Importantly, when considering the time the offender is likely to spend in prison and his criminal history, if he has been sentenced under a state recidivist statute for felony offenders and has received a sentence of life with the possibility of parole, he will not be able to prevail no matter how minor his prior felony offenses were as long as parole is available within twenty-five years.[55]

Therefore, to objectively weigh whether a sentence is grossly disproportionate, follow this analysis which is a combination of Breyer’s and Kennedy’s considerations:

(1) Consider the time the offender is likely to spend in prison taking into account parole and other mechanisms for early release.

(2) Consider the crime for which the offender is currently being sentenced, and the circumstances surrounding the crime including

a. whether the crime involved violence or the threat of violence,

b. the crime’s impact on society’s welfare, considering the crime in the abstract,

c. the threat of harm to society posed by the defendant’s crime, and

d. Society’s attitude toward the seriousness of the crime.

(3) Consider the offense in the context[56] of the offender’s criminal history.
After using this analysis, if it is determined an offender’s sentence is grossly disproportionate to his offense, a reviewing court will conduct the intrajurisdictional and interjursidictional analysis of Solem.[57]
2. Applying the Test

To illustrate how to use the test to weigh whether a sentence is grossly disproportionate, I will use it to analyze the fact patterns from Solem v. Helm, Ewing v. California, Harmelin v. Michigan, and Hutto v. Davis:

a. Solem v. Helm
In Solem, Helm was convicted for writing a no-account check for $100, a felony under South Dakota law.[58] He had been convicted of six, non-violent felonies: three convictions for third-degree burglary, one conviction for obtaining money under false pretenses, one conviction for grand larceny, and one conviction for a third DWI offense.[59] Under South Dakota’s recidivist statute, if a person had been convicted of three prior felony offenses, after being convicted of a fourth, he would be sentenced to life imprisonment without the possibility of parole.[60] And Helm was sentenced to life imprisonment without the possibility of parole.[61] Using the test to analyze Helm’s sentence, it is obvious that it was grossly disproportionate:
(1) Helm would spend the rest of his life in prison because he wrote a no-account check for $100 (about $284 in 2007 after an adjustment for inflation). (2)(a.) His crime did not involve violence or the threat of violence; (b.) writing fraudulent checks for small amounts poses only localized threats to the businesses and people who receive them as payment, and it would take dozens if not hundreds of small-amount, fraudulent checks to put one business in financial trouble; (c.) compared to other crimes, Helm’s crime was a relatively minor offense and posed a minimal threat to society, and (d.) society considers writing a bad check as a less serious offense.[62] (3) Helm had been convicted of multiple, non-violent, relatively minor felonies which proved he would continue to commit fraudulent crimes. Weighing these factors, the gross disproportion of Helm’s sentence compared to his offense is glaringly obvious. Surely, his criminal history allowed a sentence longer than a first-time offender convicted of writing a no-account check for $100 would receive, but life without parole was too much.
Because Helm’s sentence was grossly disproportionate, a reviewing court would then consider “the sentences imposed on other criminals in the same jurisdiction; and the sentences imposed for commission of the same crime in other jurisdictions.”[63]
b. Ewing v. California
But in Ewing v. California, it is not as easy to determine whether the sentence was grossly disproportionate. Ewing was convicted for stealing three golf clubs, a felony under California law.[64] Ewing had a long criminal record of misdemeanor convictions and had been convicted for three felonies for burglary (one armed) and for one felony theft.[65] Because of his criminal record, California sentenced Ewing pursuant to its recidivist statute for twenty-five years to life imprisonment; that is, Ewing could serve up to life in prison but would be eligible for parole after twenty-five years.[66] Using the test to weigh Ewing’s sentence against the severity of his offense, the outcome is not as glaringly obvious as in Helm’s case, but the Court reasonably concluded twenty-five years to life was not grossly disproportionate:
(1) At most, Ewing will be parole eligible after twenty-five years, but time off for good time served and participation could make Ewing parole eligible after sixteen years and eight months in the California penitentiary.[67] (2) Ewing was sentenced for the felony theft of three golf clubs; (a.) Ewing did not commit or threaten violence to anyone during the theft; (b.) stealing golf clubs is hardly a proximate threat to society unless you consider more people spending time at home with their families a threat to society; (c.) Ewing’s crime had no impact on society: he stole three golf clubs from a country club, and his victim could easily have replaced them, and (d.) society considers theft to be a less serious offense. (3) Ewing had committed a long list of misdemeanor convictions, had four convictions for felony offenses, and California had given him numerous opportunities to reform his behavior, including downgrading a felony for grand theft auto to a misdemeanor.[68] Yet despite his opportunities, Ewing continued committing offenses which had escalated from being typically misdemeanors to felonies.[69]
Outside the context of Ewing’s criminal history, serving at least sixteen years and eight months to twenty-five years in prison for stealing golf clubs appears disproportionate. But in context of Ewing’s long criminal history and opportunities to reform his behavior, a sentence of approximately twenty years does not appear as disproportionate, and certainly not grossly disproportionate, to his offense. Thus, the Court reasonably concluded Ewing’s sentence was not grossly disproportionate to Ewing’s offense.
c. Harmelin v. Michigan
Like Helm, Harmelin received a life sentence without the possibility for parole, but unlike Helm, Harmelin’s sentence was not grossly disproportionate to his crime. Harmelin was convicted for the possession of 672 grams of cocaine and received a mandatory life sentence without the possibility of parole, even though he had never been convicted for any prior felony offenses.[70] But using the test to analyze Harmelin’s sentence, the Court reasonably concluded his sentence was not grossly disproportionate to his offense:
(1) Harmelin will spend the rest of his life in prison and is not eligible for parole. (2) Harmelin was convicted for the possession of a large quantity of cocaine capable of producing 32,000 to 65,000 hits[71] or of being converted into large amounts of crack cocaine; (a.) this crime did not involve violence or threats of violence; (b.) however, drug use is one of the greatest plagues in American society and often results in drug-induced crimes, crimes to obtain money to buy drugs, and crimes common to the drug-business culture;[72] (c.) the large amount of cocaine Harmelin possessed posed a serious threat to his immediate community and society: Users high on the some of Harmelin’s cocaine or crack made from the cocaine could commit crimes; addicts needing to buy cocaine or crack from Harmelin may commit burglaries, robberies, or theft to obtain money, and the money Harmelin used to purchase the cocaine supports drug cartels which smuggle drugs into the United States and continue to threaten our society; finally, (d.) society views drug crimes as extremely serious.[73] (3) Harmelin had never been convicted of any other crimes.[74]
Considering the serious nature of Harmelin’s crime and the grave threat it posed to society, the fact he had not been convicted previously does not make his sentence of life without parole grossly disproportionate.
d. Hutto v. Davis
Hutto v. Davis is unique in that the defendant was not sentenced to life imprisonment. In Hutto, Davis was convicted for two counts of possessing small amounts of marijuana with the intent to distribute, received a twenty year sentence for each count to run concurrently, and was fined $10,000.[75] He could have been sentenced to forty years in prison for each count and could have been fined $25,000.[76] Applying the test to Davis, the Court’s decision to uphold Davis’ sentence appears as obvious as it was to overturn Helm’s sentence:
(1) Without good-time credit, Davis would be eligible for parole after five years,[77] and with good-time credit, he could be parole eligible within two-and-one-half years.[78] (2) Davis was convicted for possessing marijuana with the intent to distribute;[79] (a.) his crime did not involve violence or threats of violence; (b.) however, drug use is one of the greatest plagues in American society and often results in drug-induced crimes, crimes to obtain money to buy drugs, and crimes common to the drug-business culture;[80] (c.) Davis was a drug dealer caught with nine ounces of marijuana; although he was just one of thousands of dealers, Davis was an exceptionally active drug dealer whose activities included smuggling drugs into prison,[81] and (d.) society views drug crimes as extremely serious.[82] (3) Although it is unclear from the cases the degree and number of his prior offenses, Davis had spent time in prison.[83]
As evidenced by this analysis, a minimum of two-and-one-half to five years imprisonment for a repeat-offending, drug dealer hardly appears grossly disproportionate to the crime of two counts of possession of marijuana with the intent to distribute.
Texas Disproportionate Sentencing Recent Case Summaries
And Texas does not extend any greater protection against disproportionate sentencing than the United States Constitution provides. The following cases consider whether an offender’s sentence violates either the Eighth Amendment to the United States Constitution or article I, § 13 of the Texas Constitution, and all conclude no violation occurred:
Willis v. State
Willis was convicted for the possession of greater than 400 grams of cocaine, a first degree felony, and received a sentence of forty years.[84] The court compared Willis’ sentence to the sentence Rummel received in Rummel v. Estelle and reasoned because Rummel received a harsher sentence for less-serious crimes than Willis, the sentence of forty years did not violate either the United States or Texas constitutions.[85]
Williamson v. State
Williamson was convicted for three counts of aggravated sexual assault on a child, received three consecutive life sentences.[86] Williamson argued the three consecutive sentences were disproportionate to his offenses.[87] The court referred to the Solem test but did not perform any in-depth analysis as to whether the sentence was grossly disproportionate.[88] Rather, the court simply said the imposition of consecutive sentences was not grossly disproportionate to Williamson’s crimes.[89]
Trevino v. State
Trevino was arrested for the aggravated sexual assault of a child and was placed on deferred adjudication.[90] Later, Trevino violated the conditions of his deferred adjudication, was adjudicated guilty, and sentenced to twenty-five years in the penitentiary.[91] Trevino challenged his sentence, stating it was grossly disproportionate, but the court refused to consider his claim because he failed to object to the sentence at trial.[92]
Delacruz v. State
Delacruz was convicted of driving while intoxicated while carrying a passenger younger than fifteen years old, a state jail felony.[93] She was sentenced to six months in state jail and was assessed a $100 fine.[94] Noting Delacruz had received practically the minimum sentence possible for the offense, the court held her sentence was not grossly disproportionate to her offense.[95]
Atchison v. State
Atchison was arrested for recklessly causing injury to a child for shaking his infant daughter to death and was placed on deferred adjudication.[96] He later violated the conditions of deferred adjudication, was adjudicated guilty, and received a sentence of twenty years imprisonment.[97] The court reasoned that as long as the sentence was within the statutorily approved limits for the reckless injury of a child, it could not be disproportionate.[98]
Davis v. State
Davis was convicted of stalking and received a sentence of eight years.[99] He had never been convicted of other crimes but had threatened to “disassemble [his victim’s] body parts, and it would be a bloody massacre.”[100] Considering the facts of the case, the court held Davis’ sentence was not grossly disproportionate to the sentence.[101]
Ray v. State
Ray, a man in his forties, pleaded guilty to three counts of aggravated sexual assault of a child which involved giving a thirteen-year-old girl drugs in exchange for sex acts.[102] The court sentenced him to sixty years for each count.[103] Ray failed to object to the sentence at trial, but the court considered his appeal because a “defect which renders a sentence void may be raised at any time.”[104] But the court considered the disparity between the age of the victim and of the offender and concluded a sixty-year sentence was not grossly disproportionate.[105]
Jacobs v. State
Jacobs was convicted of aggravated robbery.[106] His sentence range was enhanced to a possible twenty-five to ninety-nine years or life because he had been convicted previously of a burglary of a building and another aggravated robbery, and he received a sentence of fifty years.[107] The court compared Jacobs to Rummel and noted Jacobs’ offenses were much more serious than Rummel’s while Jacobs only received a fifty year sentence and Rummel received a life sentence.[108] Therefore, the court concluded Jacobs’ sentence was not grossly disproportionate.[109]
Baldridge v. State
Baldridge was convicted for intoxication manslaughter resulting from a hit and run.[110] He had been convicted previously of family violence assaults, and after he hit the victim, he fled through Houston at speeds up to 100 miles per hour.[111] Baldridge received a fifteen-year sentence.[112] Despite expressing remorse, pointing out he was only twenty-nine, and was supporting seven children, the court affirmed his sentence.[113]
Fluellen v. State
Fluellen was placed on deferred adjudication after being convicted for aggravated robbery.[114] After violating the conditions of his deferred adjudication eleven times, the court adjudicated Fluellen guilty and gave him a fifty-year sentence.[115] The court cited precedent and affirmed Fluellen’s sentence.[116]
Moore v. State
Moore was convicted of burglary of a habitation with the intent to commit indecency with a child, a first degree felony[117] and had been convicted for committing indecency with a child.[118] Therefore, Moore received a mandatory life sentence.[119] The court noted the statute authorizing the mandatory life sentence was valid and Moore could have received a life sentence without considering his past offense.[120] Furthermore, the victim of the crime was an eleven year old girl, and the crime posed great harm to the victim and to society.[121] With these considerations, the court affirmed Moore’s sentence.[122]
Endnotes

[1] Ewing v. California, 538 U.S. 11, 20 (2003).
[2] Solem v. Helm, 463 U.S. 277, 290 (1983); Rummel v. Estelle, 445 U.S. 263, 272 (1980).
[3] Solem, 463 U.S.. at 292.
[4] Harmelin v. Michigan, 501 U.S. 957, 980 (1991).
[5] Id. at 1004-05 (Kennedy, O’Connor, and Souter, Justices, Concurring in the judgment).
[6] Id. at 1009, 1027.
[7] Id. at 980, 1004-05; See also McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
[8] Ewing v. California, 538 U.S. 11, 21& 33 (2003).
[9] 445 U.S. 263, 266 (1980).
[10] This statute no longer exists in Texas. The current version of Texas’ recidivist statute is section 12.42 of the Texas Penal Code.
[11] Rummel, 445 U.S. at 265-266.
[12] Id. at 266.
[13] Id. at 266-68.
[14] Id. at 285.
[15] Solem v. Helm, 463 U.S. 277, 281 (1983).
[16] Id. at 279-80.
[17] Id. at 281-82.
[18] Id. at 282-83.
[19] Id. at 303.
[20] In Ewing v. California, Justice O’Connor emphasized that Solem did not overrule Rummel and that the Court in Solem “explicitly declined” to do so. 538 U.S. 11, 22-23 (2003).
[21] The court in Solem also noted this distinction. 463 U.S. at 297.
[22] See generally 538 U.S. 11.
[23] Id. at 17-18.
[24] Id. at 18-19.
[25] Id.
[26] Id. at 28-29.
[27] Id. at 21-22.
[28] Id. at 30-31.
[29] See id. at 21-22.
[30] See generally Harmelin v. Michigan, 501 U.S. 957 (1991).
[31] Id. at 961.
[32] Id. at 996. Justice Scalia and Chief Justice Rehnquist argued the Eighth-amendment was a check on legislative power prohibiting certain modes of punishment and not the length of punishment, Id. at 975-76, while Justices Kennedy, O’Connor, and Souter recognized a guarantee against disproportionate lengths of punishment but did not believe Harmelin’s sentence violated it. Id. at 996.
[33] Id. at 1002.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id. at 1004.
[39] See generally Hutto v. Davis, 454 U.S. 370 (1982).
[40] Id. at 370-71.
[41] Va. Code Ann. §§ 53.1-151(G), 53.1-193 (2006).
[42] Hutto, 454 U.S. at 370-71
[43] Id. at 375.
[44] Id. at 373 (citing Rummel v. Estelle, 445 U.S. 263, 274 (1980)).
[45] Id. at 374 (citing Rummel, 445 U.S. at 272-74).
[46] Harmelin v. Michigan, 501 U.S. 957, 1000 (1991); Hutto, 454 U.S. at 374; Rummel, 445 U.S. at 272-74; Coker v. Georgia, 433 U.S. 584, 591 (1977)
[47] Neither Justice Scalia nor Justice Thomas recognizes a proportionality guarantee in the Eighth Amendment. Ewing v. California, 538 U.S. 11, 32 (2003). But Justices Kennedy, O’Connor, Souter, Harmelin, 501 U.S. at 996, and Chief Justice Rehnquist, Ewing v. California, 538 U.S. 11, 14 (2003) all accepted Kennedy’s proportionality test. Additionally and interestingly, Justice Breyer, joined by Justices Stevens, Ginsberg, and Souter, dissented in Ewing and used Kennedy’s proportionality test but came to a different result than the majority. See Ewing, 538 U.S. at 36-53.
[48] See Ewing, 538 U.S. at 23; Harmelin, 501 U.S. at 1001; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
[49] Solem v. Helm, 463 U.S. 277, 290 (1983).
[50] Supra I. B. 1.
[51] Harmelin, 501 U.S. at 1002.
[52] Ewing v. California, 538 U.S. 11, 28-29 (2003) (O’Connor, J., joined by Justice Kennedy and Chief Justice Rehnquist).
[53] Id. at 37 (Breyer, J., dissenting; citing Rummel, 445 U.S. at 265-66, 269, 276, 278, 280-81; Solem v. Helm, 463 U.S. 277, 290-303 (1983)).
[54] See Supra I. A.
[55] See Supra I. B. 1.
[56] Remember that if an offender receives a life sentence with the possibility for parole pursuant to a state recidivist statute after being convicted for three or more consecutive felonies, he does not have a claim under the Eighth Amendment if he will be parole eligible within twenty-five years of his conviction. Supra I. A.
[57] Harmelin, 501 U.S. at 1004-05; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
[58] Solem v. Helm, 463 U.S. 277, 281 (1983).
[59] Id. at 279-80.
[60] Id. at 281-82.
[61] Id. at 282-83.
[62] Harmelin, 501 U.S. at 1002.
[63] Solem v. Helm, 463 U.S. 277, 292 (1983); see also Harmelin, 501 U.S. at 1004-05; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
[64] Ewing v. California, 538 U.S. 11, 17-18 (2003).
[65] Id. at 18.
[66] Id.
[67] See Cal. Penal Code § 2931 (West 2000).
[68] Ewing, 538 U.S. at 18-21.
[69] Id.
[70] Harmelin v. Michigan 501 U.S. 957, 961 (1991).
[71] Id. at 1002 (citing Arnold M. Washton, Cocaine Addiction: Treatment, Recovery, and Relapse Prevention 18 (W.W. Norton & Co., Inc. 1989)).
[72] Id.
[73] Id. at 1002-03.
[74] Id. at 994.
[75] Hutto v. Davis, 454 U.S. 370, 370-71 (1982).
[76] Id.
[77] Va. Code Ann. § 53.1-151(A)(1) (2006).
[78] Id. at §§ 53.1-151(G), 53.1-193 (2006).
[79] Hutto, 454 U.S. at 370-71.
[80] Harmelin v. Michigan 501 U.S. 957, 1002 (1991).
[81] Hutto, 454 U.S. at 372 n.1.
[82] Harmelin, 501 U.S. at 1002-03.
[83] Hutto, 454 U.S. at 372 n.1.
[84] 192 S.W.3d 585, 590 (Tex. App.—Tyler 2006, pet. ref’d).
[85] Id. at 597.
[86] 175 S.W.3d 522, 523 (Tex. App.—Texarkana 2005, no pet.).
[87] Id.
[88] Id. at 525.
[89] Id.
[90] 174 S.W.3d 925, 926 (Tex. App.—Corpus Christi 2005, pet. ref’d).
[91] Id. at 926.
[92] Id. at 928.
[93] 167 S.W.3d 904, 905 (Tex. App.—Texarkana 2005, no pet.).
[94] Id. at 905 n.1.
[95] Id. at 905.
[96] 124 S.W.3d 755, 757 (Tex. App.—Austin 2003, pet. ref’d).
[97] Id.
[98] Id. at 760.
[99] 125 S.W.3d 734, 735 (Tex. App.—Texarkana 2003, no pet.).
[100] Id.
[101] Id.
[102] 119 S.W.3d 454, 456-59 (Tex. App.—Fort Worth 2003, pet. ref’d).
[103] Id. at 456.
[104] Id. at 458 (citing Heath v. State, 817 S.W.2d 355, 336 (Tex. Crim. App. 1991); Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. 1979); Ex parte Harris, 495 S.W.2d 231, 232 (Tex. Crim. App. 1973); Ex parte White, 659 S.W.2d 434, 435 (Tex. Crim. App. 1983)).
[105] Ray, 119 S.W.3d at 458.
[106] 80 S.W.3d 631, 632 (Tex. App.—Tyler 2002, no pet.).
[107] Id.
[108] Id. at 633-34.
[109] Id.
[110] 77 S.W.3d 890 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
[111] Id. at 892-93.
[112] Id. at 893.
[113] Id. at 894.
[114] 71 S.W.3d 870, 872 (Tex. App.—Texarkana 2002, pet. ref’d).
[115] Id.
[116] Id.
[117] 54 S.W.3d 529, 534 (Tex. App.—Fort Worth 2001, pet. ref’d).
[118] Id. at 540.
[119] Id.
[120] Id. at 541-43.
[121] Id.
[122] Id. at 543.

Monday, May 14, 2007

Admissibility of Juvenile Records During the Punishment Phase of Trial

Issue:

Are the revocation of probation, modification of disposition, and commitment orders of the revocation of a juvenile’s probation admissible during the punishment phase of a subsequent criminal proceeding?
Short Answer:
No. Only the Fort Worth Court of Appeals has ruled on the admissibility of these records during the punishment phase of trial. It held the proceedings revoking juvenile probation are not adjudications and the records were not admissible. And the Texas Court of Criminal Appeals refused to grant a petition for discretionary review for a case which distinguished the admissibility of juvenile adjudication records from the inadmissibility of the records of the proceedings to revoke juvenile probation.

Discussion:

The Texas Code of Criminal Procedure allows both the State and the Defense to offer evidence “as to any matter the court deems relevant to sentencing. . . .” including the defendant’s prior criminal record, reputation, and character, the opinion of a witness concerning his character, and extraneous criminal acts or unadjudicated bad acts as long as they are proven beyond a reasonable doubt. Tex. Code Crim. Pro. Ann. art. 37.07 sec. 3(a)(1). And a defendant’s juvenile adjudications of delinquency for felonies and misdemeanors punishable by confinement in jail are admissible, notwithstanding Rule 609(d) of the Texas Rules of Evidence. Id.; Rodriguez v. State, 975 S.W.2d 667, 687 (Tex. App.—Texarkana 1998, pet. ref’d). This creates great freedom for a trial judge to enter practically all evidence either the State or the Defense offers into evidence.

The Texas Court of Criminal Appeals has not ruled on the admissibility of the Revocation of Probation Order, Modification of Disposition Order, and Commitment Order of juvenile proceedings during the punishment phase of a subsequent criminal proceeding. And only one court of appeals has ruled on their admissibility, holding revocation and modification proceedings for juvenile probationers are not adjudications subject to article 37.07 (a)(1) of the Texas Code of Criminal Procedure. Murphy v. State, 860 S.W.2d 639, 643 (Tex. App.—Fort Worth 1993, no pet.).

In Murphy, the defendant was convicted for voluntary manslaughter. Id. at 641. Years before, the defendant had been adjudicated as a juvenile for a misdemeanor offense and was placed on juvenile probation. Id. at 641. After the adjudication for the misdemeanor offense, the defendant, while still a juvenile, committed a felony. Id. Rather than adjudicate the defendant for the felony offense, the State revoked his probation and committed him to the Texas Youth Commission. Id. During the punishment phase of the defendant’s trial, the State, over the defendant’s objection, entered the Revocation of Probation Order, Modification of Disposition Order, and Commitment Order for the defendant’s misdemeanor adjudication. Id. at 641-42. The appellate court held the revocation and modification hearings of the defendant were not adjudications and “merely revoked” the defendant’s juvenile probation for his misdemeanor offense. Id. at 642-43 (citing J.K.A. v. State, 855 S.W.2d 58, 60 (Tex. App.—Houston [14th Dist.] 1993, writ denied); Matter of A.M.B., 676 S.W.2d 448, 451 (Tex. App.—Houston [1st Dist.] 1984, no writ). Because the revocation proceedings were not adjudications, the revocation of probation, modification of disposition, and commitment orders of the revocation of the defendant’s juvenile probation were inadmissible during the punishment phase of the defendant’s trial. Id.

And even though the Court of Criminal Appeals has not ruled on the admissibility juvenile records other than juvenile adjudication records, it recognized a distinction between records of a juvenile adjudication and records of proceedings for the revocation of juvenile probation. See generally Rodriguez v. State, 975 S.W.2d 667 (Tex. App.—Texarkana 1998, pet. ref’d). In Rodriguez, the defendant, relying heavily on Murphy v. State, objected to the admission of his prior juvenile adjudication for the burglary of a motor vehicle. Id. at 686. The court rejected the defendant’s claim because adjudication of the defendant’s delinquency was not at issue where the defendant in Murphy was never adjudicated for the offense which resulted in the revocation of his juvenile probation. Id. at 687. And by refusing to grant the defendant’s petition, the Texas Court of Criminal Appeals adopted the opinion of the Texarkana court and gave it the same precedential value as an opinion from the Court of Criminal Appeals. Tex. R. App. P. 56.1(c).

Nevertheless, although the revocation of probation, modification of disposition, and commitment orders of the revocation of a juvenile’s probation are not admissible during the punishment phase of trial, the act resulting in the revocation of juvenile probation is admissible. Rodriguez, 975 S.W.2d at 687. Even offenses committed while the defendant was a juvenile, which were not adjudicated, are admissible under Texas Code of Criminal Procedure article 37.07 section 3(a) as long as the State meets the requirements therein for the admission of prior, unadjudicated bad acts. Id.; McMillan v. State, 926 S.W.2d 809, 813 (Tex. App.—Eastland 1996, pet. ref’d).

Conclusion:

The revocation of probation, modification of disposition, and commitment orders of the revocation of a juvenile’s probation are not admissible during the punishment phase of trial. But the State can still use other evidence to prove beyond a reasonable doubt the event resulting in the revocation of the defendant’s juvenile probation.

About Me

I have been hired by the Smith County Bar Foundation to assist the nine contract attorneys defending indigent defendants in Smith County, Texas.