                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00205-CR


Raymond Keith Hulsey                      §   From Criminal District Court No. 1

                                          §   of Tarrant County (0939820W)

v.                                        §   February 21, 2013

                                          §   Opinion by Justice Walker

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By_________________________________
                                         Justice Sue Walker
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00205-CR


RAYMOND KEITH HULSEY                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      This is a probation revocation appeal. Appellant Raymond Keith Hulsey

pleaded guilty to felony driving while intoxicated and was sentenced to ten years’

confinement, probated for ten years.         The State filed a petition to revoke

Appellant’s probation, alleging four grounds for revocation. Appellant pleaded

not true to paragraphs one through three (alleging that he had consumed alcohol

in violation of his probation and that he had tested positive for methamphetamine
      1
       See Tex. R. App. P. 47.4.


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and amphetamine) but pleaded true to paragraph four (alleging that he failed to

verify full employment). The trial court found that Appellant had violated all four

paragraphs and sentenced him to ten years’ confinement.             In two issues,

Appellant contends that the trial court erred by failing to conduct a punishment

hearing after determining that he had violated the terms of his probation, that the

trial court erred by overruling his motion for new trial, and that the ten-year

sentence imposed by the trial court constituted cruel and unusual punishment.

We will affirm.

      In his first issue, Appellant contends that the trial court should have

allowed him a second phase of the revocation hearing so that mitigation

evidence could be produced and should have granted Appellant’s motion for new

trial raising the denial of his right to a punishment hearing. Appellant claims that

the trial court committed harmful error by simultaneously finding that he had

violated his probation and sentencing him before he had an opportunity to

present mitigation testimony. At the hearing on the State’s motion to revoke,

Appellant did not object to the lack of a punishment hearing nor request the

opportunity to present mitigating evidence. Appellant did file a motion for new

trial, asserting that a new trial should be granted because the trial court deprived

him of a punishment phase at the probation revocation hearing. The motion for

new trial was overruled by operation of law.

      The court of criminal appeals has addressed the exact argument raised by

Appellant and has held as follows:


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      [W]e discern no error on the part of the trial court. If appellant
      wanted an opportunity to present evidence and argument on the
      question of punishment, it was incumbent upon him to ask for that
      opportunity and to be ready to present such evidence and argument
      as soon as the trial court announced its finding that he had violated
      the conditions of his probation. Part of being prepared for a
      revocation hearing is being prepared to present evidence and
      argument on the question of the proper disposition in the event that
      the trial court finds that the conditions of probation have been
      violated.

Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007). Appellant here relies

on the case of Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992), to support

his position that he was entitled to a separate punishment hearing, but the court

of criminal appeals in Euler rejected this argument too, explaining that Issa does

“not stand for a general right to a separate punishment hearing.” 218 S.W.3d at

92.   And finally, Appellant and Appellant’s brother testified at the revocation

hearing; both testified that Appellant had been treated for lymphoma, and

Appellant testified that he was prescribed antibiotics around the time that he

failed his UA. Thus, Appellant did have the opportunity to present mitigating

evidence, although that opportunity came before the trial court revoked his

probation. See Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999)

(rejecting appellant’s argument that he was entitled to a separate punishment

hearing after his probation was revoked and pointing out that appellant had the

opportunity to and did present mitigating evidence during the hearing before the

trial court revoked his probation). For these reasons, the trial court did not err by

failing to sua sponte conduct a separate punishment hearing after revoking



                                         4
Appellant’s probation or by failing to grant Appellant’s motion for new trial

asserting the right to a separate punishment hearing. We overrule Appellant’s

first issue.

       In his second issue, Appellant contends that the trial court’s imposition of a

sentence of ten years’ confinement constituted cruel and unusual punishment. In

addressing an Eighth Amendment disproportionality complaint, we first compare

the gravity of the offense against the severity of the sentence. Moore v. State, 54

S.W.3d 529, 542 (Tex. App.––Fort Worth 2001, pet. ref’d).              Only after a

determination that the sentence is grossly disproportionate to the offense do we

proceed to consider other factors. Id. at 541.

       Here, Appellant has not shown that his sentence of ten years’ confinement

is grossly disproportionate to the gravity of the offense he committed––felony

DWI. Although Appellant argues that a ten-year sentence was not warranted

because he had successfully complied with the terms of his probation for several

years and because he produced evidence that he was not intoxicated and had

not been taking drugs when he failed his UA, our comparison of the gravity of the

offense and the punishment assessed must evaluate the original offense, not the

probation violations. See Sullivan v. State, 975 S.W.2d 755, 756 (Tex. App.––

Corpus Christi 1998, no pet.). The punishment imposed upon Appellant reflects

the seriousness of not only his most recent DWI offense standing alone, but also

that offense in light of his previous DWI convictions. See McGruder v. Puckett,

954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992). Viewed in this


                                          5
light, we hold that Appellant’s punishment of ten years’ confinement was not

unconstitutionally disproportionate.   See Rummel v. Estelle, 445 U.S. 263

(1980).2 We overrule Appellant’s second issue.

      Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.



                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 21, 2013




      2
       Even if we determined a disproportionality did exist between the gravity of
Appellant’s offense and the punishment assessed, there is no evidence in the
record reflecting sentences imposed for similar offenses on criminals in Texas or
other jurisdictions by which we could address the next two factors in an Eighth
Amendment cruel-and-unusual-punishment analysis. See Solem v. Helm, 463
U.S. 277, 292, 103 S. Ct. 3001, 3011 (1983) (explaining that disproportionality
analysis includes comparison of the sentence received to sentences for similar
crimes in the jurisdiction and sentences for the same crime in other jurisdictions).


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