                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-16-00240-CR

JAMES BECK,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 13th District Court
                             Navarro County, Texas
                           Trial Court No. D35456-CR


                          MEMORANDUM OPINION

      Appellant James Earl Beck entered a plea of guilty to the offense of Driving While

Intoxicated Third or More, and a jury assessed a sentence of ninety-nine years’

incarceration. Beck presents two issues. We will affirm.

                                 Unqualified Counsel

      In his first issue, Beck asserts that the trial court committed structural error by

appointing an attorney to represent him who did not meet the qualifications set out in
the Navarro County Indigent Defense Plan. Beck contends that his attorney was not

qualified because he had not tried at least three felony jury trials.

        If an error is labeled structural, it is subject to review without requiring a

defendant to show harm. Mercier v. State, 322 S.W.3d 258, 262 (Tex. Crim. App. 2010). An

error is “structural” only if it deals with a violation of the federal constitution and has

been labeled as such by the United States Supreme Court. Lake v. State, 532 S.W.3d 408,

411 (Tex. Crim. App. 2017). One such structural error is the total deprivation of the right

to counsel at a critical stage in the prosecution. Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct.

1843, 1851, 152 L.Ed.2d 914 (2002); see also Williams v. State, 252 S.W.3d 353, 357 (Tex. Crim.

App. 2008) (“When the right to trial counsel has been violated, prejudice is presumed

because the trial has been rendered inherently unfair and unreliable.”).              Another

structural error related to the right to counsel occurs when “counsel entirely fails to

subject the prosecution’s case to meaningful adversarial testing.” Bell, 535 U.S. at 696, 122

S.Ct. at 1851. The third situation occurs when counsel is “called upon to render assistance

under circumstances where competent counsel very likely could not.” Id. In order to be

immune from a harm analysis, the violation of the right to counsel must “pervade the

entire proceeding.” Lake, 532 S.W.3d at 414 (quoting Satterwhite v. Texas, 486 U.S. 249, 257,

108 S.Ct. 1792, 100 L.Ed.2d 284 (1988)). Beck’s allegation that his trial counsel was not

qualified under the Indigent Defense Plan is not one of those errors that the Supreme

Court has deemed structural. As such, Beck is entitled to relief only if he establishes that

counsel was ineffective and that he suffered prejudice. Beck specifically notes that he

makes no claim of ineffective assistance of counsel.

Beck v. State                                                                            Page 2
        Additionally, Beck’s argument that his counsel was not qualified under the

Indigent Defense Plan is not supported by the record. Beck was convicted of DWI after

a second or more prior DWI conviction, a third-degree felony. TEX. PENAL CODE ANN. §§

49.04(a), 49.09(b). Only first and second degree felony cases require counsel who has

tried three felony cases before a jury. Navarro County Indigent Defense Plan, Minimum

Attorney Qualifications, §§ III(A)(ii) and (iii). Beck points to no other lack of qualification

on counsel’s part.1 Beck’s first issue is overruled.

                                     Disproportionate Sentence

        Beck next argues that the ninety-nine-year sentence he received was

disproportionate to the crime of DWI considering he is seventy-one years old and an

alcoholic. Generally, a sentence within the statutory range of punishment for an offense

is not excessive, cruel, or unusual punishment. See Winchester v. State, 246 S.W.3d 386,

389 (Tex. App.—Amarillo 2008, pet. ref'd); Alvarez v. State, 63 S.W.3d 578, 580 (Tex.

App.—Fort Worth 2001, no pet.). A narrow exception to this rule is recognized where a

sentence is grossly disproportionate to the offense. See Moore v. State, 54 S.W.3d 529, 542

(Tex.App.—Fort Worth 2001, pet. ref'd); see also Harmelin v. Michigan, 501 U.S. 957, 1004–

05, 111 S.Ct. 2680, 2707, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); Solem v. Helm,

463 U.S. 277, 290–92, 103 S.Ct. 3001, 3010–11, 77 L.Ed.2d 637 (1983); McGruder v. Puckett,

954 F.2d 313, 316 (5th Cir.1992). However, “[o]utside the context of capital punishment,



1
  The State indicates that Beck’s counsel failed to meet one qualification—that he have one year of criminal
law experience. However, the Indigent Defense Plan provides a judge the discretion to set-side such
qualifications when otherwise satisfied that an attorney is competent. Such a circumstance still does not
constitute a “structural” error.

Beck v. State                                                                                        Page 3
successful challenges to the proportionality of particular sentences [will be] exceedingly

rare.” Renfroe v. State, 529 S.W.3d 229, 233 (Tex. App.—Eastland 2017, pet. ref’d) (quoting

Solem, 463 U.S. at 289-90, 103 S.Ct. 3001). Additionally, punishment assessed within the

statutory limits, including punishment enhanced pursuant to a habitual-offender statute,

is not excessive, cruel, or unusual. See Ex parte Chapman, 213 S.W.3d 320, 323-24 (Tex.

Crim. App. 2006).

        In conducting a proportionality analysis, we first make a threshold comparison of

the gravity of the offense against the severity of the sentence. Moore, 54 S.W.3d at 542; see

Solem, 463 U.S. at 290–91, 103 S.Ct. at 3010; McGruder, 954 F.2d at 316. “When we analyze

the gravity of the offense, we examine the harm caused or threatened to the victim or

society and the culpability of the offender.” Renfroe, 529 S.W.3d at 234. If we determine

that the sentence is grossly disproportionate to the offense, we must then compare the

sentence received to sentences for similar crimes in this jurisdiction and sentences for the

same crime in other jurisdictions. Alvarez, 63 S.W.3d at 581; see Solem, 463 U.S. at 291–92,

103 S.Ct. at 3010; McGruder, 954 F.2d at 316.

        While Beck was charged with DWI Third or More, the indictment also included

four felony-enhancement paragraphs for four additional DWI’s, all of which the jury

found to be true. As a result, the punishment range for this offense was twenty-five to

ninety-nine years. TEX. PENAL CODE ANN. § 12.42(d). Beck’s sentence falls within the

statutory punishment range.

        The evidence showed that Beck was convicted of seven prior DWI’s over the

course of approximately forty years. When Beck was incarcerated for his sixth DWI, he

Beck v. State                                                                          Page 4
was denied parole after the parole board found that he was a danger to society. Beck’s

blood alcohol level for the present DWI was .225, and he told the police when he was

stopped that he had not been drinking. Further, Beck testified that he would continue to

drink despite the number of times he has been convicted of DWI. The jury could

reasonably have determined that Beck would be a danger to himself and others if allowed

unrestrained access to alcohol and a vehicle. We cannot say that the punishment was

grossly disproportionate to the offense. In light of this, we need not compare Beck’s

sentence to other sentences in this or other jurisdictions. We overrule Beck’s second issue.

        Having overruled both of Beck’s issues, we affirm the judgment of the trial court.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,*
        Justice Davis, and
        Justice Scoggins
        *(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the
trial court’s judgment and sentence. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed July 25, 2018
Do not publish
[CRPM]




Beck v. State                                                                         Page 5
