                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                           ____________________
                             NO. 09-15-00140-CR
                           ____________________

                          L. J. LEWIS JR., Appellant

                                       V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                    On Appeal from the 75th District Court
                           Liberty County, Texas
                         Trial Cause No. CR27288
________________________________________________________________________

                         MEMORANDUM OPINION

      A jury found L.J. Lewis Jr. (Lewis or appellant) guilty of driving while

intoxicated, third or more. See Tex. Penal Code Ann. §§ 49.04, 49.09(b) (West

Supp. 2014). The jury heard further testimony regarding appellant‟s three previous

felony convictions for possession of a controlled substance, namely cocaine, and

his admission that he committed the three prior offenses. The jury found the

enhancement allegations to be “true[,]” and the jury assessed appellant‟s



                                        1
punishment at twenty-five years of confinement. See Tex. Penal Code Ann.

§ 12.42(d) (West Supp. 2014). We affirm the trial court‟s judgment.

                                  ISSUE ON APPEAL

      In his sole appellate issue, Lewis contends that his sentence of twenty-five

years under the habitual offender statute is unconstitutional under the Eighth

Amendment of the United States Constitution and Article I, section 13 of the Texas

Constitution. He argues that under the first of the three standards set forth in Solem

v. Helm, 463 U.S. 277 (1983),1 Appellant‟s punishment is excessively harsh in

light of the gravity of the offense because “[n]o one was harmed, nor any property

damaged, by the Appellant‟s actions.” Lewis argues that “under the second [Solem]

standard, most persons convicted of felony driving while intoxicated in Texas face

a sentence of only two to ten years [of] incarceration[,]” and that in applying the

third factor in Solem, “this Court will be hard-pressed to find any sentencing

scheme from any other jurisdiction where driving while intoxicated offenders are

routinely subject to sentences in excess of ten years.” Lewis also challenges the

proportionality of his twenty-five year sentence.

      1
        In Solem v. Helm, 463 U.S. 277, 292 (1983), the United States Supreme
Court enunciated three factors for evaluating the proportionality of a sentence: (1)
the gravity of the offense and the harshness of the punishment, (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.
                                          2
                                      ANALYSIS

      Ordinarily, to preserve an error for appellate review, the complaining party

must present a timely and specific objection to the trial court and obtain a ruling.

Tex. R. App. P. 33.1(a). Generally, the failure to specifically object to an alleged

disproportionate or cruel and unusual sentence in the trial court or in a post-trial

motion waives any error for purposes of appellate review. See Rhoades v. State,

934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144,

151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref‟d). The record reflects that

Lewis did not raise any objections to his sentence at the time it was pronounced or

in a post-trial motion. Therefore, we conclude that Lewis waived any complaint

that his sentence was unconstitutionally disproportionate or unreasonable for

purposes of appellate review. See Tex. R. App. P. 33.1(a). Nevertheless, even if

Lewis had properly preserved his complaints for our review, after reviewing the

record we conclude that his argument that his sentence is disproportionate and

unreasonable under the Eighth Amendment of the United States Constitution and

Article I, section 13 of the Texas Constitution is without merit.2

      2
        Lewis does not argue that Article I, section 13 of the Texas Constitution
provides any greater or different protection than the Eighth Amendment of the
United States Constitution. Therefore, we examine Lewis‟s argument solely under
the Eighth Amendment. See Rivera v. State, 363 S.W.3d 660, 678 n.12 (Tex.
App.—Houston [1st Dist.] 2011, no pet.). We note that the Texas Court of
                                          3
      The legislature is vested with the power to define crimes and prescribe

penalties. Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet.

ref‟d); see also Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet.

ref‟d). Texas courts have held that punishment that falls within the limits

prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State,

656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949,

952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664; see also Samuel v. State,

477 S.W.2d 611, 614-15 (Tex. Crim. App. 1972). In the case at hand, Appellant

was convicted for a third time of driving while intoxicated, a third degree felony,

and his sentence was enhanced by his three prior felony convictions under section

12.42(d) of the Texas Penal Code. As a habitual felony offender with at least two

prior convictions, the range of punishment is twenty-five to ninety-nine years, or

life. See Tex. Penal Code Ann. § 12.42(d). The jury assessed the minimum

punishment in this case. See id. Therefore, the punishment is not prohibited as

cruel and unusual punishment, nor is it per se excessive. See Samuel, 477 S.W.2d

at 614-15.


Criminal Appeals has determined that there is no significant difference in the
protection against cruel and unusual punishment that is afforded by the Texas
Constitution from the United States Constitution. See Cantu v. State, 939 S.W.2d
627, 645 (Tex. Crim. App. 1997) (en banc) (citing Anderson v. State, 932 S.W.2d
502, 509 (Tex. Crim. App. 1996) (en banc)).
                                          4
       Nevertheless, Appellant requests that we evaluate his sentence in light of the

factors outlined in Solem. In Solem, the United States Supreme Court enunciated

three factors for evaluating the proportionality of a sentence: (1) the gravity of the

offense and the harshness of the punishment, (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. Solem, 463 U.S. at 290 “Although a

sentence may be within the range permitted by statute, it may nonetheless run afoul

of the Eighth Amendment prohibition against cruel and unusual punishment.” Id.;

Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st Dist.] 1997,

pet. ref‟d).

       In Harmelin v. Michigan, 501 U.S. 957, 1001 (1991), the Supreme Court

discussed Solem. Harmelin was a plurality opinion wherein five justices joined

only part IV of Justice Scalia‟s opinion, and the Court concluded that Harmelin‟s

claim that his sentence was unconstitutional because it was mandatory in nature

had no support in the Eighth Amendment‟s text and history. Two of the justices

rejected the Solem proportionality test altogether, three justices said there was only

a narrow proportionality principle contained within the Eighth Amendment, and

four justices concluded that Solem was correctly decided. See generally Harmelin,

501 U.S. 957.

                                          5
      In light of Harmelin, the Fifth Circuit Court of Appeals subsequently

adopted a modified Solem test. See McGruder v. Puckett, 954 F.2d 313, 316 (5th

Cir.), cert. denied, 506 U.S. 849 (1992). Under McGruder, the initial inquiry the

court must make is a comparison of the gravity of the offense against the severity

of the punishment received. See id. Only when the court finds that the sentence is

grossly disproportionate to the offense does the reviewing court apply the final two

prongs of the Solem test. See id.

      In Lockyer v. Andrade, 538 U.S. 63 (2003), the Supreme Court examined

whether Andrade‟s sentence of two consecutive terms of 25 years to life in prison

after his “third strike” were “contrary to, or an unreasonable application of, clearly

established federal law as determined by this Court within the meaning of 28

U.S.C. § 2254(d)(1).”     In reaching its conclusion that the sentences must be

overturned, the majority stated as follows:

      As a threshold matter here, we first decide what constitutes “clearly
      established Federal law, as determined by the Supreme Court of the
      United States.” § 2254(d)(1). Andrade relies upon a series of
      precedents from this Court -- Rummel v. Estelle, 445 U.S. 263, 63 L.
      Ed. 2d 382, 100 S. Ct. 1133 (1980), Solem v. Helm, 463 U.S. 277, 77
      L. Ed. 2d 637, 103 S. Ct. 3001 (1983), and Harmelin v. Michigan, 501
      U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991) -- that he claims
      clearly establish a principle that his sentence is so grossly
      disproportionate that it violates the Eighth Amendment. Section
      2254(d)(1)‟s “clearly established” phrase “refers to the holdings, as
      opposed to the dicta, of this Court‟s decisions as of the time of the
      relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412,
                                          6
      146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000). In other words, “clearly
      established Federal law” under § 2254(d)(1) is the governing legal
      principle or principles set forth by the Supreme Court at the time the
      state court renders its decision. See id., at 405, 413; Bell v. Cone, 535
      U.S. 685, 698, 152 L. Ed. 2d 914, 122 S. Ct. 1843 (2002). In most
      situations, the task of determining what we have clearly established
      will be straightforward. The difficulty with Andrade‟s position,
      however, is that our precedents in this area have not been a model of
      clarity. See Harmelin v. Michigan, 501 U.S., at 965 (opinion of Scalia,
      J.); id., at 996, 998 (Kennedy, J., concurring in part and concurring in
      judgment). Indeed, in determining whether a particular sentence for a
      term of years can violate the Eighth Amendment, we have not
      established a clear or consistent path for courts to follow. See Ewing
      v. California, ante, 538 U.S. 11, 155 L. Ed. 2d 108, 123 S. Ct. 1179,
      2003 U.S. LEXIS 1952 at -- (slip op., at 8-11).

      ....

      Through this thicket of Eighth Amendment jurisprudence, one
      governing legal principle emerges as “clearly established” under
      § 2254(d)(1): A gross disproportionality principle is applicable to
      sentences for terms of years.

      ....

      Thus, in this case, the only relevant clearly established law amenable
      to the “contrary to” or “unreasonable application of “framework is the
      gross disproportionality principle, the precise contours of which are
      unclear, applicable only in the “exceedingly rare” and “extreme” case.
      Id., at 1001 (Kennedy, J., concurring in part and concurring in
      judgment) (internal quotation marks omitted); see also Solem v. Helm,
      supra, at 290; Rummel v. Estelle, supra, at 272.

Andrade, 538 U.S. at 71-73.

      Similarly, the Texas Court of Criminal Appeals stated in Ex parte Chavez,

213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006), that “„[s]ubject only to a very
                                         7
limited, “exceedingly rare,” and somewhat amorphous Eighth Amendment gross-

disproportionality review, a punishment which falls within the legislatively

prescribed range, and that is based upon the sentencer‟s informed normative

judgment, is unassailable on appeal.‟” See also Jarvis v. State, 315 S.W.3d 158,

162 (Tex. App.—Beaumont 2010, no pet.) (citing Chavez, 213 S.W.3d at 323-24)).

      In both Graham v. Florida, 560 U.S. 48, 59-60 (2010), and Miller v.

Alabama, 567 U.S.__, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Supreme Court

again discussed and referenced Harmelin in determining whether a sentence was

grossly disproportionate to the defendants‟ crimes.

      In Graham, the Court explained that “[t]he Court‟s cases addressing the

proportionality of sentences” fall within two general classifications—challenges to

the length of the term of the sentences given all the circumstances in a particular

case and challenges where the Court implemented the proportionality standard

with respect to certain categorical restrictions on the death penalty. 560 U.S. at 59.

The Court noted that its decision in Solem fit within the first category, but it

acknowledged:

      In other cases, however, it has been difficult for the challenger to
      establish a lack of proportionality. A leading case is Harmelin v.
      Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), in
      which the offender was sentenced under state law to life without
      parole for possessing a large quantity of cocaine. A closely divided
      Court upheld the sentence. The controlling opinion concluded that the
                                          8
      Eighth Amendment contains a “narrow proportionality principle,” that
      “does not require strict proportionality between crime and sentence”
      but rather “forbids only extreme sentences that are „grossly
      disproportionate‟ to the crime.” Id., at 997, 1000-1001, 111 S. Ct.
      2680, 115 L. Ed. 2d 836 (Kennedy, J., concurring in part and
      concurring in judgment). . . .

      ....

      The controlling opinion in Harmelin explained its approach for
      determining whether a sentence for a term of years is grossly
      disproportionate for a particular defendant's crime. A court must begin
      by comparing the gravity of the offense and the severity of the
      sentence. 501 U.S., at 1005, 111 S. Ct. 2680, 115 L. Ed. 2d 836
      (opinion of Kennedy, J.). “[I]n the rare case in which [this] threshold
      comparison . . . leads to an inference of gross disproportionality” the
      court should then compare the defendant‟s sentence with the
      sentences received by other offenders in the same jurisdiction and
      with the sentences imposed for the same crime in other jurisdictions.
      Ibid. If this comparative analysis “validate[s] an initial judgment that
      [the] sentence is grossly disproportionate,” the sentence is cruel and
      unusual. Ibid.

560 U.S. at 59-60. The Supreme Court concluded that the Constitution prohibits

life imprisonment without parole for juveniles convicted of crimes other than

homicide. See id. at 82.

      In Miller, the majority of the Supreme Court held that “[b]y requiring that all

children convicted of homicide receive lifetime incarceration without possibility of

parole, regardless of their age and age-related characteristics and the nature of their

crimes, the mandatory sentencing schemes before us violate this principle of

proportionality, and so the Eighth Amendment‟s ban on cruel and unusual
                                          9
punishment.” Miller, 132 S.Ct. at 2475. In Miller, the State argued that Harmelin

“forecloses a holding that mandatory life-without-parole sentences for juveniles

violate the Eighth Amendment.” The majority distinguished Harmelin noting that

“Harmelin had nothing to do with children and did not purport to apply it‟s holding

to the sentencing of juvenile offenders.” 132 S.Ct. at 2470.

      Appellant contends that “Harmelin has been called into question by the

holdings in Graham and Miller,” and therefore, “Harmelin does not prohibit

appellate courts from reviewing the constitutionality of a particular punishment in

the light of concepts of proportionality set forth in Solem.” (ANT:11) We disagree

with Appellant‟s conclusion. In issuing its opinions in Graham and Miller, the

Court did not overrule or call into question its prior analysis in Harmelin. See

generally Miller, 132 S.Ct. 2455; Graham, 560 U.S. 48; see also Eaglin v. State,

No. 09-13-00504-CR, 2014 Tex. App. LEXIS 9960, at **2-3 (Tex. App.—

Beaumont Sept. 3, 2014, no pet.) (mem. op., not designated for publication) (citing

Graham and applying the same gross disproportionality test as that stated in

McGruder); Mathews, 918 S.W.2d at 669 (applying the same test as in McGruder

in addressing disproportionate sentence claims). Therefore, we examine the

sentence Lewis received under the gross disproportionality test.




                                         10
      The offense of driving while intoxicated, third or more, is a third degree

felony punishable by “any term of not more than 10 years or less than 2 years” and

“a fine not to exceed $10,000.” See Tex. Penal Code Ann. §§ 12.34 (West 2011),

49.09(b)(2). However, appellant‟s offense was enhanced by his prior conviction

and not based upon the DWI conduct alone. Appellant was charged as a habitual

criminal pursuant to the provisions of section 12.42(d) of the Texas Penal Code.

Therefore, in considering whether appellant‟s sentence of twenty-five years is

“grossly disproportionate” we consider not only the present offense but also his

criminal history. See Rummel v. Estelle, 445 U.S. 263, 284 (1980). The defendant‟s

sentence under a recidivist statute is “based not merely on that person‟s most

recent offense but also on the propensities he has demonstrated over a period of

time during which he has been convicted of and sentenced for other crimes.” Id. A

state with a recidivist statute is not required to treat a defendant as if the offense

was his first, and it is entitled to place upon the defendant “the onus of one who is

simply unable to bring his conduct within the social norms prescribed by the

criminal law of the State.” Id. “[The] primary goals [of a recidivist statute] are to

deter repeat offenders and, at some point in the life of one who repeatedly commits

criminal offenses serious enough to be punished as felonies, to segregate that

person from the rest of society for an extended period of time.” Id. “[T]he point at

                                         11
which a recidivist will be deemed to have demonstrated the necessary propensities

and the amount of time that the recidivist will be isolated from society are matters

largely within the discretion of the punishing jurisdiction.” Id. at 285.

      To the extent that Lewis argues that no one was harmed, or that no property

was damaged by his actions, it is well established that even a sentence of life

imprisonment or of similar length is not grossly disproportionate to a felony

offense that is committed by a habitual offender, even when the felony is not

inherently violent in nature. See, e.g., id. (sentence of life imprisonment for offense

of obtaining $120.75 by false pretenses not excessive); Winchester v. State, 246

S.W.3d 386, 390-91 (Tex. App.—Amarillo 2008, pet. ref‟d) (consecutive life

sentences for offenses of retaliation and failure to appear not grossly

disproportionate because of defendant‟s criminal history). Here, appellant did not

receive the maximum life sentence, but instead he was sentenced to the minimum

sentence allowed under the habitual criminal provision, twenty-five years of

confinement.

      Based on Lewis‟s repeated commission of the offense of driving while

intoxicated, a dangerous offense that could have placed his life and the lives of

others in jeopardy, along with his criminal history involving prior felony

convictions for possession of cocaine, we conclude that a sentence of twenty-five

                                          12
years was not grossly disproportionate so as to constitute cruel and unusual

punishment. See, e.g., Vrba v. State, 69 S.W.3d 713, 716, 724-25 (Tex. App.—

Waco 2002, no pet.) (sixty year sentence for DWI conviction was not grossly

disproportionate and did not violate defendant‟s Eighth Amendment rights because

of defendant‟s prior criminal history). Having overruled appellant‟s issue, we

affirm the trial court‟s judgment.

      AFFIRMED.

                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice
Submitted on September 14, 2015
Opinion Delivered November 4, 2015
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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