Opinion filed April 17, 2014




                                     In The


        Eleventh Court of Appeals
                                 _____________

                  Nos. 11-12-00240-CR & 11-12-00241-CR
                                 _____________

                  ROBERT STEVEN DUDLEY, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 244th District Court
                               Ector County, Texas
                   Trial Court Cause Nos. C-38,861 & C-38,862

                      MEMORANDUM OPINION
       Robert Steven Dudley entered an open plea of guilty to two offenses of
escape. The trial court found Appellant guilty in each case, assessed punishment in
each case at confinement for twenty years, and ordered the sentences to run
concurrently with each other but consecutively to the sentences that Appellant
received in three prior robbery convictions. In a single issue on appeal in each
case, Appellant maintains that the sentence that was assessed constituted cruel and
unusual punishment. We affirm.
      A short recitation of Appellant’s criminal history as reflected in the record is
important to our analysis in this case.       Appellant had multiple prior felony
convictions. He had been convicted for felony credit card abuse, and he had also
been convicted for felony unauthorized use of a motor vehicle. Additionally,
Appellant had three convictions for offenses committed in 2008: one for the
second-degree felony offense of robbery and two for the first-degree felony offense
of aggravated robbery.       For those offenses, Appellant was sentenced to
confinement for fifteen years, thirty-six years, and ninety-nine years, to run
concurrently. After he had been convicted of two of the robberies and was serving
those sentences, Appellant committed the offenses at issue in this court when he
escaped from custody on January 29, 2011, and when he escaped again on
March 5, 2011. In his sole issue on appeal, Appellant argues that his “stacked”
punishment was cruel and unusual in violation of the Eighth and Fourteenth
Amendments to the United States Constitution and Article I, section 13 of the
Texas constitution.
      We will not disturb a trial court’s punishment decision “absent a showing of
abuse of discretion and harm.” Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.
App. 1984). Generally, a sentence is not cruel, unusual, or excessive if it falls
within the range of punishment authorized by statute. Id. Even if a sentence falls
within the statutory range for that crime, however, it must be proportional to the
crime. Solem v. Helm, 463 U.S. 277, 290 (1983). “Outside the context of capital
punishment, successful challenges to the proportionality of particular sentences
have been exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272 (1980).
      The   Eighth    Amendment      prohibits punishments that        are   “grossly
disproportionate” to the offense for which the defendant has been convicted.

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Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—Eastland 2001, pet. ref’d)
(citing Harmelin v. Michigan, 501 U.S. 957 (1991)).                To evaluate the
proportionality of a sentence, the first step is to make a threshold comparison
between the gravity of the offense and the severity of the sentence. Bradfield, 42
S.W.3d at 353. If grossly disproportionate, we must then compare Appellant’s
sentence with the sentences received for similar crimes in this jurisdiction or
sentences received in other jurisdictions. Id.
      Appellant concedes that his sentences were within the statutory range of
punishment and that “the trial court had the authority to stack” those sentences.
However, he argues that his sentences were grossly disproportionate “because of
his age[] and the total length of the sentence.” According to Appellant, “[i]f all of
the sentences are upheld, the Appellant will be sentenced to a total 119 years in
prison.” Appellant asserts that he was forty years old at the time of sentencing and
that, because he will not be eligible for release on parole from his 99-year sentence
for at least thirty years, “[Appellant] will be 70 years old” when he begins serving
his sentences for escape.
      Appellant’s argument focuses solely on the length of confinement and fails
to compare the sentences to the gravity of the offense of escape. Additionally,
Appellant relies on the sentences from his prior convictions to argue that his
sentences are disproportionate without also comparing the gravity of those other
offenses.    Appellant’s main contention is that his sentences are grossly
disproportionate “because of the total number of years [he] received.”
      The legislature vested trial courts with the discretion to order either that the
sentences run concurrently or that a subsequent sentence begins to run when a prior
sentence is concluded. TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp.
2013). The Court of Criminal Appeals has explained that “[t]here is no ‘right’ to a
concurrent sentence; whether punishment will run concurrently or cumulatively is

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within the discretion of the trial judge.” Carney v. State, 573 S.W.2d 24, 27 (Tex.
Crim. App. 1978).
      After being convicted of robbery and aggravated robbery and sentenced to
confinement for fifteen years and thirty-six years respectively, Appellant escaped
from custody twice. Before Appellant was convicted and sentenced for the two
offenses of escape, he was convicted for yet another offense of aggravated robbery
and sentenced to confinement for ninety-nine years. The offense of escape is a
third-degree felony, TEX. PENAL CODE ANN. § 38.06 (West Supp. 2013), and each
escape offense was enhanced to a second-degree felony by Appellant’s prior felony
conviction for unauthorized use of a motor vehicle, see id. § 12.42(a).            As
enhanced, the range of punishment prescribed by the legislature for each offense of
escape is confinement for two to twenty years and up to a $10,000 fine. See id.
§ 12.33 (West 2011). Although Appellant’s twenty-year sentence is at the top of
the range, the trial court did not assess a fine, and Appellant will serve the
sentences for each escape offense concurrently. Had Appellant only committed the
offense of escape, he could have been sentenced to no more than twenty years. See
id. § 38.06. It is because of Appellant’s prior felony convictions that he now faces
imprisonment for up to 119 years.
      It is important to note that Appellant does not challenge the constitutionality
of the habitual offender statute, and he does not challenge the classification of
certain offenses as felonies. The United States Supreme Court has explained that
the purpose of a “recidivist statute” is 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.”      Rummel, 445 U.S. at 284.        We further note that
Appellant does not challenge the constitutionality of the statute that vests the trial
court with discretion to stack his sentences. See CRIM. PROC. art. 42.08. Instead,

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Appellant attacks the result of applying these concededly valid statutes to the facts
present here.    The Supreme Court has recognized that life imprisonment for
overtime parking would be grossly disproportionate but that “for crimes
concededly classified and classifiable as felonies, that is, as punishable by
significant terms of imprisonment in a state penitentiary, the length of the sentence
actually imposed is purely a matter of legislative prerogative.” Rummel, 445 U.S.
at 274.
      After reviewing the record, we cannot say that the trial court’s decision to
impose consecutive sentences results in grossly disproportionate punishment for
the offenses for which Appellant was convicted. Although we need not reach the
next step in the analysis, we note that there is no evidence in the record by which
we can compare the result in these cases with others in the same jurisdiction or
with the sentences imposed in other jurisdictions for similar offenses. Thus, we
conclude that consecutive sentences under these facts do not constitute cruel and
unusual punishment in violation of the United States and Texas Constitutions.
Appellant’s sole issue in each case is overruled.
      We affirm the judgments of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE

April 17, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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