Opinion filed November 13, 2009




                                        In The


   Eleventh Court of Appeals
                                        ____________

                                   No. 11-08-00068-CR
                                       __________

                        JUSTO HERNANDEZ, JR., Appellant

                                               V.

                             STATE OF TEXAS, Appellee


                          On Appeal from the 385th District Court

                                   Midland County, Texas

                               Trial Court Cause No. CR33906


                           MEMORANDUM OPINION
       Justo Hernandez, Jr. appeals from a guilty verdict for driving while intoxicated. The jury
convicted Justo Hernandez, Jr. of felony driving while intoxicated, found the enhancement
allegations to be true, and assessed punishment at confinement for ninety-nine years. We affirm.
                                      Background Facts
       Sergeant Donald Ray Graham was on patrol at around 2:00 a.m. Sergeant Graham observed
a vehicle pass him and then stop on the overpass. Sergeant Graham made a U-turn to see if the
driver of the vehicle needed assistance. The driver of the vehicle started reversing and backing
toward Sergeant Graham in the lane of travel. Sergeant Graham turned on his overhead lights
signaling the driver to pull over. The vehicle came to a stop on the overpass in the middle of the
lane. When Sergeant Graham approached the vehicle, it rolled forward, and he had to instruct the
driver to put the car in park and put on the emergency brake. Sergeant Graham identified appellant
as the driver. He observed that appellant had a wet spot on his jeans, and it appeared that appellant
had urinated on himself. Sergeant Graham also noticed that appellant had the odor of alcohol on his
breath and his eyes were red and glassy and that he walked in a staggering motion. Sergeant Graham
believed that appellant was intoxicated, and he called for an officer participating in the STEP
program to conduct a driving-while-intoxicated investigation.1
          Deputy Thomas Hunnicutt came to the scene and spoke with Sergeant Graham regarding the
reasons for the stop and appellant’s actions. Deputy Hunnicutt observed that appellant had a strong
odor of alcohol on his breath, that his eyes were red and bloodshot, and that appellant had urinated
on himself. Deputy Hunnicutt performed the horizontal gaze nystagmus test on appellant at the
scene. Deputy Hunnicutt observed six clues indicating intoxication. Deputy Hunnicutt arrested
appellant and took him to the police station to administer further standardized field sobriety tests on
him. Deputy Hunnicutt observed four clues on the walk-and-turn test indicating intoxication.
Appellant was unable to complete the one-leg stand test for more than two seconds, also indicating
intoxication.
          The indictment alleged that appellant was driving while intoxicated and that he had two prior
final convictions for driving while intoxicated. The State also provided notice of its intent to
enhance appellant’s punishment to a first degree felony with proof of another driving-while-
intoxicated conviction and an aggravated-assault-with-a-deadly-weapon conviction. Appellant
stipulated to the prior driving-while-intoxicated convictions listed in the indictment.
                                                             Issues
          Appellant argues that the evidence is legally insufficient to prove the elements of the offense
of driving while intoxicated and to sustain appellant’s conviction. Appellant also argues that the


          1
           The STEP program is a government funded program that allows officers to work overtime to look for impaired drivers and
to prevent accidents and deaths on the roadway. It frees up on duty officers to continue patrolling while the STEP officer conducts
the driving while intoxicated investigation.

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assessment of the ninety-nine year sentence was cruel and unusual punishment prohibited by the
Eighth Amendment of the United States Constitution.
                                            Legal Sufficiency
         In order to determine if the evidence is legally sufficient, we review all of the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). The factfinder is the sole
judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State,
828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The factfinder may choose to believe or disbelieve
all or any part of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986).
         A person commits the offense of driving while intoxicated when he operates a motor vehicle
in a public place while intoxicated. TEX . PENAL CODE ANN . § 49.04(a) (Vernon 2003). Intoxicated
means not having the normal use of mental or physical faculties by reason of the introduction of
alcohol or a controlled substance. TEX . PENAL CODE ANN . § 49.01(2)(A) (Vernon 2003).
         Appellant argues that the State failed to prove that appellant had lost the normal use of his
mental or physical faculties by the introduction of alcohol. We disagree. Sergeant Graham testified
that he observed appellant stop on an overpass and back up. He testified that appellant’s driving was
unsafe. Sergeant Graham also testified that he smelled alcohol on appellant’s breath; that appellant
had red, glassy eyes; that appellant staggered when he walked; and that appellant had urinated on
himself. Sergeant Graham stated that these were all signs that appellant was intoxicated. Further,
Deputy Hunnicutt testified that he administered the standard field sobriety tests to appellant and that
appellant exhibited several clues of intoxication on each test. In reviewing all the evidence in the
light most favorable to the verdict, the State proved that appellant had lost the normal use of his
mental and physical faculties. The evidence was legally sufficient to support the jury’s verdict. We
overrule appellant’s first issue on appeal.
                                    Cruel and Unusual Punishment
         The Eighth Amendment of the United States Constitution states, “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.


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amend. VIII. The Eighth Amendment of the U.S. Constitution is applicable to the states by virtue
of the Fourteenth Amendment of the U.S. Constitution. Robinson v. California, 370 U.S. 660, 666-
67 (1962). The cruel and unusual punishment clause prohibits not only barbaric punishments, but
also sentences that are disproportionate to the crime committed. Solem v. Helm, 463 U.S. 277, 284
(1983). Punishment will be grossly disproportionate to a crime only when an objective comparison
of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme.
Harmelin v. Michigan, 501 U.S. 957, 1004-06 (1991). Under Texas law, if the punishment assessed
is within the range of punishment established by the legislature under its constitutional authority,
there is no violation of the state constitutional provisions against cruel and unusual punishment.
Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
However, the United States Supreme Court has stated that, “although a sentence may be within the
range permitted by statute, it may nonetheless run afoul of the Eighth Amendment prohibition
against cruel and [un]usual punishment.” Baldridge, citing Solem, 77 S.W.3d at 893. If we find that
the sentence is grossly disproportionate to the offense, we must compare the sentence received to (1)
sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other
jurisdictions. Harmelin, 501 U.S. at 1005.
        Driving while intoxicated is normally punished as a Class A misdemeanor. TEX . PENAL
CODE ANN . § 49.09(a) (Vernon Supp. 2009). However, if it is shown on the trial of the offense that
the person has previously been convicted two times of any offense relating to the operation of a
motor vehicle while intoxicated then the offense is punishable as a third degree felony. TEX . PENAL
CODE ANN . § 49.09(b)(2) (Vernon Supp. 2009). Further, if it is shown on the trial of any felony
offense, other than a state jail felony, that the defendant has previously been finally convicted of two
felony offenses, he shall be punished by imprisonment for a term of not more than nine-nine years
or less than twenty-five years. TEX . PENAL CODE ANN . § 12.42(d) (Vernon Supp. 2009).
        The State sought to punish appellant as a habitual offender under TEX . PENAL CODE ANN .
§ 12.42 (Vernon Supp. 2009). In this case, appellant’s range of punishment was twenty-five years
to ninety-nine years. The jury assessed punishment at ninety-nine years. Appellant does not allege
that his sentence does not fall into the range of punishment set by the legislature for habitual
offenders. In fact, appellant admits to being a recidivist. However, appellant argues that he received


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a life sentence for behavior that, without enhancement, was a misdemeanor. Appellant also states
that, if he is paroled with fifteen years credit, his first possibility for parole, he will be sixty-three
years old and have very little of his active life left. Appellant contends that the State has an interest
in punishing habitual criminals but that his punishment was disproportionally harsh.
        Under this record, appellant’s sentence was not grossly disproportionate. Appellant had a
prior conviction for felony driving while intoxicated - third offense. Therefore, this conviction was
at least appellant’s fourth conviction for driving while intoxicated. Appellant was also convicted
of aggravated assault with a deadly weapon, burglary of a building, and possession of marihuana.
In two of those convictions, appellant received community supervision, and in both cases, he was
unable to complete the program and his community supervision was revoked. Appellant has shown
no ability to be rehabilitated.
        Appellant is being punished under the habitual offender statute, and the sentence imposed
reflects the seriousness of his most recent offense not alone but in conjunction with his prior
offenses. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). At least one of appellant’s prior
convictions was a violent crime that involved the use of a deadly weapon. Also, driving while
intoxicated may not be classified as a violent crime; however, it threatens the health and safety of
the intoxicated driver and every person on or near the roadways. Based on appellant’s criminal
history with driving while intoxicated offenses as well as his convictions for aggravated assault,
burglary of a building, and possession of marihuana, appellant’s sentence is not grossly
disproportionate to the offense committed. Because we do not find that his sentence is grossly
disproportionate, we do not need to discuss the other two prongs of the Solem test. See Harmelin,
501 U.S. at 1005. We overrule appellant’s second issue on appeal.
                                              Conclusion
        We affirm the judgment of the trial court.




                                                                 RICK STRANGE
                                                                 JUSTICE
November 13, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.



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