                                 NO. 07-07-0030-CR
                                 NO. 07-07-0031-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL C

                                FEBRUARY 14, 2008

                        ______________________________


                   TERRY EUGENE WINCHESTER, APPELLANT

                                         V.

                        THE STATE OF TEXAS, APPELLEE

                      _________________________________

              FROM THE 106TH DISTRICT COURT OF LYNN COUNTY;

   NOS. 06-2832 & 06-2846; HONORABLE CARTER T. SCHILDKNECHT, JUDGE;

                       _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                      OPINION


      Appellant, Terry Eugene Winchester, was convicted in separate jury trials of the

third degree felony offenses of retaliation and failure to appear and sentenced to two

consecutive life sentences under the habitual felony offenders provisions of the Texas
Penal Code.1 Appellant raises a single point of error in two appeals asserting the trial court

erred by imposing sentences grossly disproportionate to the offenses underlying his

convictions resulting in cruel and unusual punishment in violation of the Eighth Amendment

of the United States Constitution.2 We affirm.


                                        Background


       On April 5, 2006, Appellant was arrested during a routine traffic stop for public

intoxication, an open container violation, and unlawfully carrying a weapon.           While

Appellant was being transported to jail and during booking, he threatened the arresting

officer with present and future bodily harm. He also verbally accosted the officer in an

obscene and insulting manner several times.


       On July 7, 2007, Appellant was indicted for the offense of retaliation, a third-degree

felony,3 enhanced by three prior felonies, and he was released from custody on bond. His

arraignment was scheduled for August 15, 2007. On August 10, 2007, with knowledge of

his impending court date, Appellant left on a cross-country drive to Massachusetts. When

Appellant failed to appear for his arraignment as scheduled, he was indicted for bail



       1
           Tex. Penal Code Ann. § 12.42(d) (Vernon 2003).
       2
        We take it to be an inherent power to consider together two pending appeals
involving the same question and the same parties when it is expedient and desirable. See
Rodriguez v. State, 970 S.W.2d 133, 135 (Tex.App.–Amarillo 1998, pet. ref’d).
       3
           Tex. Penal Code Ann. § 36.06(a)(1)(A) & (f) (Vernon 2003).

                                              2
jumping and failure to appear, also a third-degree felony,4 enhanced by three prior felonies.

On his return trip from Massachusetts, Appellant was arrested in Oklahoma.


       Subsequently, the State filed its Notice of Intent to Enhance Punishment and Notice

of Intent to Introduce Extraneous Offenses, Crimes, Wrongs and Bad Acts, listing ten prior

convictions. The offenses included convictions for possession of a firearm; possession of

drug paraphernalia; escape from a penal institution; assault with a dangerous weapon;

unauthorized use of an automobile; aggravated assault; theft by deception; leaving the

scene of an automobile accident and two convictions for automobile theft. The offenses

were committed in three states, Missouri, Arkansas, and Oklahoma, over an eight year

period, 1988-1996.5


       The charges for retaliation and failure to appear were tried in separate jury trials.

One jury found Appellant guilty of the offense of failure to appear, found the enhancements

true, and assessed his punishment at life imprisonment.6 A separate jury found Appellant


       4
           Tex. Penal Code Ann. § 38.10(a) & (f) (Vernon 2003).
       5
       From 1992 until December 2005, Appellant was imprisoned. When he was
arrested in April 2006, he had been out of prison less than four months.
       6
       Appellant was sentenced in both criminal actions under Tex. Penal Code Ann.
§ 12.42 (d) (Vernon 2003) which states:

       if it is shown on the trial of a felony offense other than a state jail felony
       punishable under Section 12.35(a) that the defendant has previously been
       finally convicted of two felony offenses, and the second previous felony
       conviction is for an offense that occurred subsequent to the first previous
       conviction having become final, on conviction he shall be punished by

                                             3
guilty on the retaliation offense, found the enhancements true, and also assessed his

punishment at life imprisonment. At the request of the State, the trial court cumulated the

two life sentences and ordered Appellant to serve them consecutively.


                                        Discussion


       The Eighth Amendment of the United States Constitution prohibits excessive bail

or fines as well as cruel and unusual punishment. See U.S. Const. amend. VIII. The

provision is applicable to the States through the Fourteenth Amendment; Furman v.

Georgia, 408 U.S. 238, 239, 92 S.Ct. 2726, 2727, 33 L.Ed.2d 346 (1972); Robinson v.

California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758 (1962), and flows

from the basic “‘precept of justice that punishment for crime should be graduated and

proportioned to [the] offense.’” Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 2246,

153 L.Ed.2d 335 (2002), quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct.

544, 549, 54 L.Ed.2d 793 (1910).


       It is undisputed that the sentences imposed by the trial court were within the range

of punishment authorized by the Legislature. Furthermore, Texas courts have traditionally



       imprisonment in the institutional division of the Texas Department of Criminal
       Justice for life, or for any term of not more than 99 years or less than 25
       years.

       Although the State failed to allege that the previous offenses were felony
       offenses, we have reviewed the record and find that evidence is sufficient to
       support that fact.

                                             4
held that, as long as the punishment assessed is within the range set by the Legislature

in a valid statute, the punishment is not excessive, cruel, or unusual. Delacruz v. State,

167 S.W.3d 904, 906 (Tex.App.–Texarkana 2005, no pet.). That said, Texas courts

recognize that a prohibition against grossly disproportionate sentences survives under the

federal constitution apart from any consideration whether the punishment assessed is

within the statute’s range. Id.; Buster v. State, 144 S.W.3d 71, 81 (Tex.App.–Tyler 2004,

no pet.); Davis v. State, 119 S.W.3d 359, 363 (Tex.App.–Waco 2003, pet. ref’d); Jackson

v. State, 989 S.W.2d 842, 846 (Tex.App.–Texarkana 1999, no pet.).7


       Finding a federal constitutional principle of proportionality for criminal sentences

under the Eighth Amendment, the United States Supreme Court indicated that, in

determining the proportionality of a sentence, courts should be guided by the following

objective criteria: (1) the gravity of the offense and the harshness of the penalty; (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 292,

103 S.Ct. at 3011.


       Also, in recognition of the important role of legislatures in establishing statutory

criminal penalties and trial courts in assessing punishment, the Solem Court indicated that



       7
       “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.” Solem v. United States, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77
L.Ed.2d 637 (1983).

                                             5
they should be accorded substantial deference, and that “a reviewing court rarely will be

required to engage in extended analysis to determine that a sentence is not constitutionally

disproportionate.” 463 U.S. at 290 n.16, 103 S.Ct. at 3010 n.16.


       Solem, however, is no longer controlling. Harmelin v. Michigan, 501 U.S. 957, 111

S.Ct. 2680, 115 L.Ed.2d 836 (1991); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.),

cert. denied, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992). See Wise v. State, 223

S.W.3d 548, 554 n.3 (Tex.App.–Amarillo 2007, pet. ref’d).


       In Harmelin, the United States Supreme Court revisited the issue of whether the

Eighth Amendment provided a proportionality guarantee. Justice Scalia’s opinion, joined

by Chief Justice Rehnquist, determined the Eighth Amendment did not contain a

proportionality guarantee and rejected the Solem test. 501 U.S. at 962, 966, 111 S.Ct. at

2684, 2686. Justice Kennedy’s concurrence, joined by Justices O’Connor and Souter,

determined the Eighth Amendment encompassed a “narrow proportionality principle.” 501

U.S. at 997, 111 S.Ct. at 2702. Justice Kennedy’s concurrence recognized the Solem test

but determined the test was flexible, i.e., where a comparison of the crime with the

sentence did not give rise to an inference of gross disproportionality, a comparative

analysis of the challenged sentence with others in the same state and across the nation

was unnecessary. 501 U.S. at 1005, 111 S.Ct. at 2707. Justice White’s dissent, joined

by Justices Blackmun and Stevens, upheld Eighth Amendment guarantees of

proportionality and the Solem test. Justice Marshal’s dissent disagreed with Justice White


                                             6
only insofar as Justice White’s dissent differed with his view that “capital punishment is in

all instances unconstitutional.” 501 U.S. at 1027, 111 S.Ct. at 2719. Accordingly, two

Justices rejected the proportionality principle and Solem’s test outright, three Justices

recognized a “narrow” proportionality principle and a modified Solem test, and four Justices

recognized the proportionality principle espoused in Solem and its three-part test.


       In light of Harmelin, the Fifth Circuit Court of Appeals adopted a modified Solem test

conforming with Justice Kennedy’s concurrence. See McGruder, 954 F.2d at 316. Under

McGruder, a court first conducts a threshold comparison of the gravity of the offense

underlying the current conviction as well as the offenses underlying the prior convictions

against the severity of the sentence. Id. Only if the court infers the sentence is grossly

disproportionate to the offenses should the court then consider the remaining factors in the

Solem test. Id.


       The majority of Texas appellate courts have followed and applied the Fifth’s Circuit’s

McGruder analysis in addressing Eighth Amendment proportionality complaints. Alberto

v. State, 100 S.W.3d 528, 530 (Tex.App.–Texarkana 2003, no pet.); Bradfield v. State, 42

S.W.3d 350, 353 (Tex.App.–Eastland 2001, pet. ref’d); Hicks v. State, 15 S.W.3d 626, 632

(Tex.App.–Houston [14th Dist.] 2000, pet. ref’d); Dunn v. State, 997 S.W.2d 885, 891-92

(Tex.App.–Waco 1999, pet ref’d); Mathews v. State, 918 S.W.2d 666, 669

(Tex.App.–Beaumont 1996, pet. ref’d); Puga v. State, 916 S.W.2d 547, 549-50

(Tex.App.–San Antonio 1996, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21


                                             7
(Tex.App.–Dallas 1994, pet. ref’d). Two others acknowledge McGruder and Harmelin but

nevertheless apply the Solem factors in assessing the proportionality of sentences. See

Trevino v. State, 174 S.W.3d 925, 928-29 (Tex.App.–Corpus Christi 2003, pet. ref’d);

Simmons v. State, 944 S.W.2d 11, 14 (Tex.App.–Tyler 1996, pet. ref’d). We also adopt

the McGruder proportionality analysis.


      Appellant contends his consecutive sentences of life imprisonment are not

proportionate to his offenses of retaliation and failure to appear and violate the

requirements of the Eighth Amendment. We think this argument ignores the essence of

the statute under which he was sentenced. Appellant was sentenced under the provisions

of § 12.42(d) of the Texas Penal Code. Under this statute, sentence is imposed to reflect

the seriousness of his most recent offense, not as it stands alone, but in light of prior

offenses. See Rummel v. Estelle, 445 U.S. 263, 276, 100 S.Ct. 1133, 1140, 63 L.Ed.2d

382 (1980). A repeat offender’s sentence 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.” Hicks v. State,

15 S.W.3d 626, 632 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d). Therefore, in

considering whether Appellant’s sentences are “grossly disproportionate,” we consider not

only the present offenses but also his criminal history. Vrba v. State, 69 S.W.3d 713, 724

(Tex.App.–Waco 2002, no pet.).




                                            8
       The offenses of retaliation and failure to appear are third degree felonies. The

prosecution of these offenses are intended to protect vital public interests. A central

purpose of the offense of retaliation “is to encourage a certain class of citizens to perform

vital public duties without fear of retribution.” Doyle v. State, 661 S.W.2d 726, 729

(Tex.Crim.App. 1983). Prosecution of the offense of failure to appear is intended to obtain

compliance with court orders to appear and promote the orderly administration of justice.

Here, Appellant threatened an arresting officer with bodily harm and ignored the trial court’s

order to appear and plead. Importantly, these crimes were committed only months after

Appellant was released from prison.


       Appellant’s continuous, criminal history spans nearly twenty years. His felonies

include crimes of violence (assault with a dangerous weapon and aggravated assault) as

well as crimes against the authority of prison officials (escape from a penal institution),

police (retaliation against a police officer), and the court (failure to appear). After escaping

from confinement, Appellant committed multiple felonies before he was returned to jail.

He engaged in a high speed chase with police driving more than one hundred miles per

hour. During the chase, he played “chicken” with patrol cars attempting to block his path

and later bragged about his role in endangering the lives of police officers in pursuit and

the public. Appellant put a gun to the head of his wife and demanded sex. He fled the

scene of an accident, stole automobiles, and has been convicted for the illegal possession

of firearms and drug paraphernalia. He committed felonies while on probation and parole.



                                               9
The test, then, is whether his sentences are grossly disproportionate to the gravity of the

offenses upon which his sentences are based.


       In Rummel v. Estelle, the United States Supreme Court held that it did not constitute

“cruel and unusual punishment” to impose a life sentence under the Texas “recidivist

statute,” now § 12.42(d) of the Texas Penal Code, upon a defendant who had been

convicted, successively, of fraudulent use of a credit card to obtain $80 worth of goods or

services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false

pretenses. 445 U.S. at 285, 100 S.Ct. at 1145.


       In McGruder, the Fifth Circuit Court of Appeals held that it did not constitute “cruel

and unusual punishment” to impose a life sentence without the hope of parole under a

habitual offender statute upon a defendant who had been convicted, successively, for

burglary of an automobile; armed robbery; burglary and larceny; and again for armed

robbery. 954 F.2d at 315. Here, at least, there is the possibility of parole.


       Because the sentences are within the statutory range of punishment and evidence

was presented regarding his previous ten felonies, the juries’ assessments of Appellant’s

punishment is not prohibited as cruel, unusual, or excessive. Moreover, having compared

the life sentences with Appellant’s current convictions and prior criminal history, we

conclude the sentences are not grossly disproportionate in violation of the Eighth

Amendment. Neither did the cumulation of the sentences by the trial court violate the

Eighth Amendment. See Stevens v. State, 667 S.W.2d 534, 537 (Tex.Crim.App. 1984).

                                             10
Having determined the consecutive sentences are not grossly disproportionate, we find it

unnecessary to consider the remaining factors of the Solem test. Therefore, we hold

Appellant’s consecutive life sentences are not unconstitutionally disproportionate and

overrule his single contention.


                                       Conclusion


       Accordingly, both judgments of the trial court are affirmed.




                                                 Patrick A. Pirtle
                                                      Justice

Publish.




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