                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00160-CR
         ______________________________


           JAN ALLISON ABEL, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 34225-B




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                   MEMORANDUM OPINION

        Jan Allison Abel has appealed from her conviction on her open plea of guilty to the third-

degree felony offense of driving while intoxicated. See TEX . PENAL CODE ANN . § 49.04 (Vernon

2003). The trial court sentenced Abel to five years' confinement, to run consecutively with a

companion case also on appeal before this Court in cause number 06-08-00161-CR, also decided this

date. See TEX . PENAL CODE ANN . § 12.34 (Vernon 2003).

        On appeal to this Court, Abel contends, in a single point of error, that the punishment

assessed is disproportionate to her crime. Abel'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.1 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, Abel's

sentence falls within the applicable range of two to ten years' confinement and a fine of up to

$10,000.00. See TEX . PENAL CODE ANN . § 12.34.




        1
        The trial court did not conduct a hearing on Abel's motion for new trial, which was overruled
by operation of law. See TEX . R. APP . P. 21.8.

                                                 2
       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,



                                                  3
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 Abel'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.2d 655, 664–65 (Tex. App.—Texarkana 1995, pet. ref'd). Without such

evidence, the record before us does not support Abel's claim of demonstrable error. Cf. Jackson, 989

S.W.2d at 846 ("there 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").

       We do note, however, that the trial court's written judgment in this case does not correspond

with the oral pronouncement of judgment at trial. The oral pronouncement of judgment was that the

sentence in the companion case, cause number 06-08-00161-CR run consecutive to the sentence in

this appeal. The written judgment states that the sentence shall run concurrently. Where there is a

variation between the oral pronouncement of sentence and the written memorialization of the

sentence, the oral pronouncement of sentence controls. Thompson v. State, 108 S.W.3d 287, 290

(Tex. Crim. App. 2003); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).

       This Court has the authority to reform the judgment to make the record speak the truth when

the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607 (Tex.



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Crim. App. 1992). In Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref'd), the

court noted that the authority of the appellate court to reform incorrect judgments is not dependent

on request of any party; the appellate court may act sua sponte. The Texas Rules of Appellate

Procedure provide direct authority for this Court to modify the judgment of the trial court. TEX . R.

APP . P. 43.2.

        Therefore, we hereby reform the judgment to delete the notation that the sentence shall

run concurrently.

        As reformed, we affirm the judgment of the trial court.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:        February 11, 2009
Date Decided:          February 12, 2009

Do Not Publish




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