Tina Marie Seymour v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00111-CR ______________________________ TINA MARIE SEYMOUR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 23,457-B Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Tina Marie Seymour appeals the revocation of her community supervision. In June 1996, she pled guilty to a series of theft by check offenses occurring in a single criminal episode. The amounts taken aggregated to greater than or equal to $1,500.00 but less than $20,000.00, making the offense a state jail felony. Tex. Pen. Code Ann. § 31.03(e)(4)(A) (Vernon Supp. 2003). The trial court sentenced her to two years' confinement in a state jail facility, but suspended the imposition of her sentence and placed her on five years' community supervision. In the ensuing five years, the terms of Seymour's supervision were twice modified and the supervision period extended a total of two years. In January 2002, the State moved to have the trial court revoke Seymour's community supervision, alleging she violated three of its terms. Seymour pled true to the State's allegations and stipulated to its evidence. The trial court found the allegations true, revoked Seymour's community supervision, and sentenced her to eighteen months' confinement in a state jail facility. On appeal, Seymour contends her eighteen-month sentence constitutes cruel and unusual punishment in violation of her rights under the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution. See U.S. Const. amend. VIII; Tex. Const. art. I, § 13. She also contends her sentence constitutes involuntary servitude in violation of her rights under the Thirteenth Amendment to the United States Constitution. See U.S. Const. amend. XIII. Finally, she contends the trial court abused its discretion in revoking her community supervision. Seymour first contends her sentence constitutes cruel and unusual punishment. Her sentence is within the statutory range for a state jail felony, i.e., between 180 days' and two years' confinement. See Tex. Pen. Code Ann. § 12.35(a) (Vernon 1994). Texas courts have traditionally held that, as long as the punishment 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). However, in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no pet.), this Court recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.-Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68-69 (Tex. App.-Texarkana 2000, pet. ref'd). A court's proportionality analysis under both the Eighth Amendment to the United States Constitution and Article 1, Section 13 of the Texas Constitution should be guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.-Tyler 1996, no pet.) (evaluating an appellant's Texas constitutional claim of cruel and unusual punishment under the test outlined in Solem). Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.-Texarkana 1995, pet. ref'd). Seymour did not present this issue to the trial court; therefore, she did not preserve it for our review. Tex. R. App. P. 33.1(a); Jackson, 989 S.W.2d at 844. Even if Seymour's contention had been preserved, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. See Fluellen, 71 S.W.3d at 873; Latham, 20 S.W.3d at 69; Davis, 905 S.W.2d at 664-65. Seymour next contends the trial court violated her right to be free from involuntary servitude by imposing a sentence that was based on facts outside the record. She contends the trial court considered the two previous modifications of her community supervision as the basis for revoking her community supervision in the present case. Even assuming a sentence based on improper evidence would violate a defendant's rights under the Thirteenth Amendment, we read the record differently than does Seymour. At the beginning of the revocation proceeding, the trial court recited the history of the case, including Seymour's conviction, her placement on community supervision, the later modifications of the terms of her supervision, and the extensions of the supervision period. The trial court may take judicial notice in the absence of a request from a party, Tex. R. Evid. 201(c), and may be presumed to have taken notice of its own files. See In re Estate of York, 934 S.W.2d 848, 851 (Tex. App.-Corpus Christi 1996, no writ); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st Dist.] 1993, writ denied); Lacy v. First Nat'l Bank, 809 S.W.2d 362, 367 (Tex. App.-Beaumont 1991, no writ). Therefore, the two previous modifications of community supervision were properly before the trial court. Moreover, the record shows the trial court's decision to revoke Seymour's community supervision was not based on the facts leading up to the two previous modifications. As mentioned previously, Seymour pled true to the State's motion to revoke, which alleged that she failed to pay her supervision fees for four months, that she failed to report to her supervision officer for two months, and that she used marihuana. At the end of the revocation hearing, the trial court stated: The disturbing part is that this is not this Defendant's first rodeo so to speak. She has twice come before the Court on non-compliance. And both times, the Court was merciful, just as it was merciful the day that it gave her the benefit of probation in 1996. It's one thing to ignore the financial obligations. It is another thing to go out and violate the laws of this state, which is exactly what she did when she used marijuana. I cannot ignore that. I will not ignore that. Clearly the trial court did not consider the facts leading up to the two previous modifications of Seymour's community supervision as factors in its decision to revoke her community supervision. It did consider Seymour's use of marihuana and the fact she had received several chances while on community supervision, which were appropriate factors to consider. Seymour also contends the trial court abused its discretion in revoking her community supervision. Her contention revolves around her testimony that she was unable to pay her supervision fees in the months alleged in the State's motion to revoke. Yet Seymour pled true to the allegation that she failed to pay her supervision fees. A plea of true, standing alone, is sufficient to support a revocation order. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Guajardo v. State, 24 S.W.3d 423, 426-27 (Tex. App.-Corpus Christi 2000, pet. granted). Even if it were not, Seymour pled true to the State's other two allegations. Proof of a single violation is sufficient to support revocation of community supervision. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981); Myers v. State, 780 S.W.2d 441, 445 (Tex. App.-Texarkana 1989, pet. ref'd). The judgment is affirmed. Jack Carter Justice Date Submitted: December 17, 2002 Date Decided: February 5, 2003 Do Not Publish