Simon Smallwood appeals the district court's summary judgment in favor of Wayne Scott, the Director of the Texas Department of Criminal Justice, regarding his habeas corpus petition under 28 U.S.C. § 2254. Smallwood was charged with theft after being caught with three packages of meat valued at $27.64 concealed on his person while leaving a grocery store. His prior convictions for theft elevated the charge to a third-degree felony, and additional felony convictions increased his sentencing range to 25 years to life under Texas habitual offender statutes.
At trial, a Loss Prevention officer testified about observing Smallwood on surveillance cameras and his subsequent detention, during which Smallwood admitted to needing the meat. A jury found him guilty, and he was sentenced to 50 years due to his nine prior felony convictions. Smallwood's direct appeal was unsuccessful, and the Texas Court of Criminal Appeals denied his writ of habeas corpus.
In this appeal, Smallwood raises three points of error: (1) the argument that applying both Texas Penal Code Sections 31.03(e)(4)(E) and 12.42(d) constitutes "double enhancement," violating the Fifth, Eighth, and Fourteenth Amendments; (2) the claim that his sentence constitutes cruel and unusual punishment; and (3) the assertion that Section 31.03(e)(4)(E) is unconstitutional, infringing on his rights to equal protection and due process. The Court of Appeals affirms the district court's decision.
A dissenting justice in Smallwood v. State argued that Smallwood's fifty-year sentence for misdemeanor theft, elevated to a felony due to prior convictions, constituted cruel and unusual punishment, referencing Solem v. Helm. The Court of Appeals did not determine if a constitutional error occurred regarding the absence of a limiting instruction in the jury charge about Smallwood's prior theft convictions. Smallwood raised four points of error, primarily contending that the district court improperly applied the Supreme Court's Rummel v. Estelle decision, which upheld a life sentence for a minor theft with prior felonies, rather than the Solem guidelines for Eighth Amendment claims. The court noted that Rummel emphasizes the consideration of a defendant's recidivism and is controlling in cases with similar factual backgrounds. In contrast, Solem established criteria for assessing disproportionality in sentencing, including the severity of the crime relative to the punishment, the penalties for similar offenses in the same jurisdiction, and comparisons with other jurisdictions. The court indicated that Solem's applicability is limited by the precedent set in Harmelin v. Michigan, which upheld a life sentence for a serious drug offense, suggesting that Solem should only be invoked when a clear inference of gross disproportionality arises from the crime-sentence comparison.
The Court has previously examined the threshold of gross disproportionality in sentencing, referencing cases like McGruder and Duhr. In McGruder, the defendant had a significant criminal history, including two armed robbery convictions, while Rummel faced a life sentence for less severe offenses, leading the Court to determine that McGruder's sentence was not grossly disproportionate. In Duhr, the defendant's felony DWI, enhanced by prior non-violent offenses, resulted in a 99-year sentence, which the Court upheld by comparing it to Rummel’s case.
The current case involves Smallwood, whose felony theft conviction and prior offenses do not surpass the severity of Rummel's crimes. Smallwood's theft offense of $27.64 is deemed comparable to Rummel's $120.75 fraud case. The Court agrees that Smallwood's prior convictions are similarly grave to those of Rummel. Consequently, it concludes that if Rummel's sentence is not grossly disproportionate, then Smallwood's sentence cannot be either. Both sentences allow for parole after a similar duration, reinforcing the conclusion that Smallwood's case does not warrant a distinct analysis under the Eighth Amendment based on previous precedents.
Smallwood claims he was denied due process and the right to an impartial jury because the jury charge included his two prior theft convictions without a limiting instruction, which he objected to. The court referenced *Thomas v. Estelle*, emphasizing that federal courts do not create state criminal procedure rules and will only consider state procedural violations if they render the trial fundamentally unfair. The inclusion of Smallwood's prior convictions was deemed proper under Texas law, specifically referencing *Gant v. State*, which mandates that prior offenses be included in the jury charge for certain theft offenses.
The court examined whether constitutional error occurred due to the lack of a limiting instruction, which Smallwood argued would prevent the jury from improperly considering his prior convictions as evidence of guilt. In *Spencer v. Texas*, the Supreme Court ruled that the use of prior convictions in this context did not violate the Fourteenth Amendment and acknowledged the complexity of state evidentiary law. The court in *Thomas* found that the absence of a limiting instruction did not necessarily result in constitutional error since the petitioner had waived the right to contest this by not objecting at trial. The court noted that while it may be preferable for enhancement paragraphs not to be read during the guilt phase of a trial, doing so without a limiting instruction does not inherently violate due process.
Smallwood's counsel objected to the mention of his prior theft convictions during the opening statement and to their inclusion in the jury charge. They requested a limiting instruction to clarify that this evidence should not be seen as indicative of guilt, but rather as context for assessing his testimony. The trial court overruled these objections and denied the requested instruction. The court did not address whether this constituted constitutional error since any such error must render the trial fundamentally unfair to warrant relief under section 2254. Citing previous case law, it noted that federal habeas relief requires proof that the error had a substantial impact on the jury's verdict. Evidence against Smallwood included his apprehension for theft at a grocery store, where he admitted to the officer that he needed the items. The court concluded that the trial court's decisions did not significantly affect the jury's verdict given the overwhelming evidence of guilt. Additionally, Smallwood claimed that applying two Texas Penal Code sections simultaneously constituted double enhancement in violation of the Double Jeopardy Clause. The court explained that to assess multiple punishments under the Double Jeopardy Clause, one must consider legislative intent regarding punishment. Smallwood's conviction, initially a class B misdemeanor, was elevated to a felony under one provision, which then activated the habitual offender enhancement. He contended that this specific enhancement statute should exclude the application of other habitual offender provisions.
The state legislature's intention regarding the combination of two enhancement statutes, Sections 31.03(e)(4)(E) and 12.42(d), is clarified by the Texas Court of Criminal Appeals, which confirms that these statutes are to be applied together. Consequently, this Court must adhere to the Texas courts' interpretation. The constitutionality of such enhancement statutes has been upheld against various constitutional challenges, including claims related to double jeopardy, ex post facto laws, and equal protection. The "double enhancement" in Smallwood's case does not violate the Double Jeopardy Clause.
Smallwood argues that Section 31.03(e)(4)(E) is unconstitutional due to alleged violations of due process and equal protection, claiming it is applied disproportionately against black and older defendants. He references two other prisoners sentenced under this statute, both of whom are black, but admits that his lack of resources has hindered comprehensive research to support his claims. The Court notes that mere assertions without evidence do not establish a constitutional issue in a habeas proceeding. Smallwood's allegations fail to meet the necessary evidentiary standard for an equal protection claim, which requires compelling statistical evidence of discriminatory intent.
Additionally, Smallwood contends that Section 31.03(e)(4)(E) unfairly treats theft offenders differently from offenders of other crimes, such as theft of services (Tex.Penal Code Ann. Section 31.04), which lacks a similar enhancement provision. However, as theft offenders do not fall under a suspect class, the rational basis test applies. There has been no indication that the Texas legislature's classification of theft offenders is irrational or unrelated to a legitimate governmental objective, affirming the legislative authority to differentiate between offenses and penalties.
Smallwood's equal protection claim challenges the discretionary practice of prosecutors applying two enhancement provisions after a defendant rejects a plea bargain. It is established that due process is not violated when a prosecutor charges a habitual offender based on a plea refusal. Smallwood further contends that Section 31.03(e)(4)(E) is ambiguous and overbroad, stating it addresses thefts from $0.01 to $750.00, leading to confusion in Texas courts regarding its classification as an enhancement statute. He argues that this ambiguity forces individuals to guess the legislature's intent concerning its conjunction with the habitual offender statute. A penal statute is considered void for vagueness if it does not clearly define the criminal offense, which should be understandable to ordinary people without encouraging arbitrary enforcement. Although there may be confusion in court interpretations, Smallwood does not demonstrate that this ambiguity affected his understanding of the prohibited conduct—namely, theft. The overlapping statutes do not render the law unconstitutionally ambiguous if they clearly define the conduct and penalties involved. Additionally, Smallwood's claim of overbreadth fails, as he does not show how theft of any value constitutes constitutionally protected conduct. Ultimately, the district court's judgment is affirmed, rejecting all of Smallwood's arguments.
