                            NUMBER 13-08-00202-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JOHN ANDREW MYERS,                                                           Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


  On appeal from the 377th District Court of Victoria County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

       Appellant, John Andrew Myers, entered an open plea of guilty to the charge of

online solicitation of a minor, a second-degree felony. See TEX . PENAL CODE ANN . § 33.021

(Vernon Supp. 2008). After hearing evidence, the trial court sentenced Myers to sixteen

years’ imprisonment and assessed court costs. By a single issue, Myers argues that his

punishment was excessive and constitutes cruel and unusual punishment in violation of

the Eighth Amendment to the United States Constitution. See U.S. CONST . amend. VIII.
We affirm.1

        A second-degree felony is punishable by a term of imprisonment between two and

twenty years and a fine not to exceed $10,000. See TEX . PENAL CODE ANN . § 12.33

(Vernon 2003). Myers does not dispute that his sentence falls within the statutory range

allowable for his crime. In general, Texas courts have held that a punishment assessed

within the statutory range is not cruel or unusual. Davila v. State, 930 S.W.2d 641, 654

(Tex. App.–El Paso 1996, pet. ref’d); Belton v. State, 900 S.W.2d 886, 899 (Tex. App.–El

Paso 1995, pet. ref’d); Lackey v. State, 881 S.W.2d 418, 420 (Tex. App.–Dallas 1994, pet.

ref’d). Nevertheless, an Eighth Amendment claim may still exist even if the punishment is

within the statutory range. See Solem v. Helm, 463 U.S. 277, 290 (1983); Mullins v. State,

208 S.W.3d 469, 470 (Tex. App.–Texarkana 2006, no pet.); Diaz-Galvan v. State, 942

S.W.2d 185, 186 (Tex. App.–Houston [1st Dist.] 1997, pet. ref’d).

        Myers cites Solem v. Helm and argues that his sentence was disproportionate to his

crime. See Solem, 463 U.S. at 290-92. In Solem, the United States Supreme Court set

forth three factors to consider in evaluating an Eighth Amendment disproportionate

punishment claim: (1) the gravity of the crime and the harshness of the penalty; (2) the

punishment for other crimes in the same jurisdiction; and (3) the punishment for the same

crime in other jurisdictions. Id. In Trevino v. State, we recognized that “the viability and

mode of application of proportionate analysis” has been called into question since the

Supreme Court’s splintered decision in Harmelin v. Michigan, 501 U.S. 957 (1991). See

Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.–Corpus Christi 2005, pet. ref’d) (citing

McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir.1992)). In McGruder v. Puckett, the


        1
         As this is a m em orandum opinion and the parties are fam iliar with the facts, we will only recite them
herein as necessary to explain our holding. See T EX . R. A PP . P. 47.4.

                                                       2
Fifth Circuit analyzed Harmelin, and concluded that courts must “initially make a threshold

comparison of the gravity of [the] offenses against the severity of [the] sentence.” 954 F.2d

at 316. “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 (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same

crime in other jurisdictions.”   Id.   In Sullivan v. State, we assumed the viability of

proportionality review and applied both Solem and McGruder. See Sullivan v. State, 975

S.W.2d 755, 757-58 (Tex. App.–Corpus Christi 1998, no pet.).

       Assuming the same here, under both Solem and McGruder, we must look first at the

gravity of the offense and the harshness of the penalty. Solem, 463 U.S. at 290-91;

McGruder, 954 F.2d at 316. Next, we must look at the sentences imposed for similar

crimes in the same jurisdiction and the sentences imposed for the same crime in other

jurisdictions. Solem, 463 U.S. at 292; McGruder, 954 F.2d at 316.

       Myers argues that his sentence is excessive because (1) he solicited a police officer

posing as a thirteen-year-old girl, thus the crime caused no harm to any person or to the

public; (2) defense witnesses established that he needed rehabilitation rather than

incarceration and that he could successfully complete community supervision; (3) he has

children, and no complaints have been made with respect to his children; and (4) he

expressed remorse for his actions.

       In considering the gravity of the crime and the harshness of the penalty, we note

that whether the crime was directed towards a thirteen-year-old child or a police officer

posing as a thirteen-year-old child, the crime of online solicitation of a minor is a very

serious offense. Furthermore, Myers ignores the evidence in the record demonstrating

that, as a juvenile, he was adjudicated as guilty of two offenses of aggravated sexual

                                              3
assault of a child under fourteen years of age and remanded to the custody of the Texas

Youth Commission. See TEX . PENAL CODE ANN . § 22.021(a)(iii) (Vernon Supp. 2008);

Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.–Tyler 1996, no pet.). In the present

case, the punishment was within the statutory range, and given Myers’s criminal history,

we are loathe to say that the punishment was grossly disproportionate to the crime. See

Simmons, 944 S.W.2d at 15 (“Appellant does not take into consideration the fact that he

also had a 1991 conviction for possession of a controlled substance. The punishment

assessed falls within the permissible range, and when viewed in light of Appellant’s criminal

history, is not grossly disproportionate to the offense he committed.”). Even if we were to

conclude that Myers satisfied the first requirement of Solem and McGruder, Myers does

not address, and there is no evidence in the appellate record of, the sentences imposed

for similar crimes in Texas or for the same crimes in other jurisdictions. Thus, we may not

perform a comparative evaluation using the remaining Solem factors. See Solem, 463

U.S. at 292; Guin v. State, 209 S.W.3d 682, 687-88 (Tex. App.–Texarkana 2006, no pet.);

Sullivan, 975 S.W.2d at 757-58; Simmons, 944 S.W.2d at 15. Accordingly, we conclude

that Myers’s sentence is neither grossly disproportionate nor cruel and unusual. The issue

is overruled, and we affirm.



                                                         GINA M. BENAVIDES,
                                                         Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 28th day of August, 2009.




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