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

              No. 06-09-00239-CR
        ______________________________


         ROSS MCMORRIS, III, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 3rd Judicial District Court
             Anderson County, Texas
               Trial Court No. 29030




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

        Ross McMorris, III, has appealed from his jury convictions of possession of cocaine with

intent to deliver (a first degree felony) and possession of marihuana (a state jail felony). The jury

assessed punishment at twenty-five years‘ and two years‘ incarceration, respectively.1

        On appeal, McMorris contends that his sentences are disproportionate to the crimes, citing,

among other cases, Harmelin v. Michigan, 501 U.S. 957 (1991), Solem v. Helm, 463 U.S. 277

(1983), and Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref‘d). To

preserve such a complaint for appellate review, McMorris must have presented to the trial court a

timely request, objection, or motion that stated the specific grounds for the desired ruling, or the

complaint must be apparent from the context. See TEX. R. APP. P. 33.1(a)(1); Harrison v. State,

187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex.

App.—Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely

manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref‘d) (failure to complain to trial court that sentences were cruel and unusual waived claim or

error for appellate review). We have reviewed the records of the trial proceeding. No relevant

request, objection, or motion was made. And, while this Court has held that a motion for new trial

is an appropriate way to preserve this type of claim for review (see Williamson v. State, 175


1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

                                                        2
S.W.3d 522, 523–24 (Tex. App.—Texarkana 2005, no pet.), and Delacruz v. State, 167 S.W.3d

904 (Tex. App.—Texarkana 2005, no pet.)), no motion for new trial was filed. McMorris has not

preserved such an issue for appeal.

        However, even absent waiver,2 we conclude that McMorris‘ sentence was not grossly

disproportionate. 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,

McMorris‘ sentences fall within the applicable ranges of ―imprisonment . . . for life or for any term

of not more than 99 years or less than 5 years‖ for a first degree felony and ―not more than two

years or less than 180 days‖ for a state jail felony. See TEX. PENAL CODE ANN. §§ 12.32, 12.35

(Vernon Supp. 2010).

        Even when a sentence is within the proper punishment range, a prohibition against grossly

disproportionate punishment survives under the Eighth Amendment to the United States

Constitution. U.S. CONST. amend. VIII; see Solem v. Helm, 463 U.S. 277, 290 (1983); Harmelin,

501 U.S. 957; 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).


2
 See Faizon v. State, No. 12-05-00353-CR, 2006 WL 1918482, at *3 (Tex. App.—Tyler July 12, 2006, no pet.) (mem.
op., not designated for publication).

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       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.

       We do not believe the sentence was grossly disproportionate to the gravity of the offense,

but even if it was, there is no evidence in the record from which we could compare McMorris‘

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, 905 S.W.2d at 664–65. Without such evidence, the record before us does

not support McMorris‘ claim of demonstrable error. Cf. Jackson, 989 S.W.2d at 846 (―there is no



                                                  4
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.




                                                    Jack Carter
                                                    Justice

Date Submitted:       September 14, 2010
Date Decided:         September 15, 2010

Do Not Publish




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