                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00150-CR
         ______________________________


              JASON MILLER, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 34421-B




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                   MEMORANDUM OPINION

        Jason Miller has appealed from his conviction on his open plea of guilty to the third-degree

felony offense of driving while intoxicated. See TEX . PENAL CODE ANN . § 49.04 (Vernon 2003),

§ 49.09(b)(2) (Vernon Supp. 2007). The trial court sentenced Miller to five years' imprisonment.

See TEX . PENAL CODE ANN . § 12.34 (Vernon 2003).

        On appeal to this Court, Miller contends, in a single point of error, that the punishment

assessed is disproportionate to his crime. Miller's motion for new trial contains a contention that the

sentence was disproportionate to the offense. A motion for new trial is an appropriate way to

preserve this type of claim for review.1 See Williamson v. State, 175 S.W.3d 522, 523–24 (Tex.

App.—Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana 2005,

no pet.).

        Texas courts have traditionally held that, as long as the punishment assessed is within the

range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or

unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here, Miller's

sentence falls within the applicable range of two to ten years and a fine of up to $10,000.00. See

TEX . PENAL CODE ANN . § 12.34.

        That does not end the inquiry. A prohibition against grossly disproportionate punishment

survives under the Eighth Amendment to the United States Constitution apart from any consideration

        1
        The trial court did not conduct a hearing on Miller's motion for new trial, which was
overruled by operation of law.

                                                  2
of whether the punishment assessed is within the range established by the Legislature. U.S. CONST .

amend. VIII; see Solem v. Helm, 463 U.S. 277, 290 (1983); Harmelin v. Michigan, 501 U.S. 957

(1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana

1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420–21 (Tex. App.—Dallas 1994, pet. ref'd); see

also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (describing this principle as

involving a "very limited, 'exceedingly rare,' and somewhat amorphous" review).

       Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity of

the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes

in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other

jurisdictions. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the viability of

the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin,

but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.

1992); Lackey, 881 S.W.2d at 420–21. In light of Harmelin, the test has been reformulated as an

initial threshold comparison of the gravity of the offense with the severity of the sentence; and then,

only if that initial comparison created an inference that the sentence was grossly disproportionate to

the offense should there be a consideration of the other two Solem factors—sentences for similar

crimes in the same jurisdiction and sentences for the same crime in other jurisdictions. McGruder,

954 F.2d at 316; Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.—Texarkana 2006, no pet.);

Lackey, 881 S.W.2d at 420–21.



                                                  3
       Assuming, without deciding, that Miller's sentence is grossly disproportionate to the crime

he committed, there is no evidence in the record from which we could compare his sentence to the

sentences imposed on other persons in Texas or on persons in other jurisdictions who committed a

similar offense. See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.—Texarkana 2000, pet. ref'd);

Davis v. State, 905 S.W.2d 655, 664–65 (Tex. App.—Texarkana 1995, pet. ref'd). Without such

evidence, the record before us does not support Miller's claim of demonstrable error. Cf. Jackson,

989 S.W.2d at 846 ("there is no evidence in the record reflecting sentences imposed for similar

offenses on criminals in Texas or other jurisdictions by which to make a comparison").

       There being no other issues before us, we affirm the trial court's judgment.




                                                    Josh R. Morriss, III
                                                    Chief Justice

Date Submitted:       March 31, 2008
Date Decided:         April 11, 2008

Do Not Publish




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