Opinion filed October 10, 2019




                                                In The


            Eleventh Court of Appeals
                                            __________

                                     No. 11-17-00288-CR
                                         __________

                    DARELL DWAYNE MOSHER, Appellant
                                                    V.
                          THE STATE OF TEXAS, Appellee


                          On Appeal from the 32nd District Court
                                  Nolan County, Texas
                              Trial Court Cause No. 12133


                          MEMORANDUM OPINION
        Appellant, Darell Dwayne Mosher,1 was charged with the third-degree felony
offense of driving while intoxicated with two prior DWI convictions. See TEX.
PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2018). The State also
sought to enhance the punishment based on two prior felony convictions. See id.


        1
         We note that in the indictment and judgment, Appellant’s first name is spelled “Darell.” However,
in documents filed by Appellant’s attorney and in prior judgments in the record, Appellant’s name is spelled
“Darrell.”
§ 12.42(d) (West 2019). After the State abandoned one of the alleged enhancement
paragraphs, Appellant pleaded guilty to the charged DWI offense and pleaded true
to the remaining enhancement allegation. The trial court found Appellant guilty of
DWI and found the alleged enhancement allegation true, making the offense
punishable as a second-degree felony, and assessed punishment at confinement for
seventeen years in the Texas Department of Criminal Justice and a fine of $1,000.
Appellant argues on appeal that the seventeen-year sentence is cruel and unusual
punishment prohibited by the Eighth Amendment of the United States Constitution.
We affirm.
                                    Background Facts
      Appellant was indicted in Nolan County for a DWI offense that occurred on
August 27, 2016. The indictment contained jurisdictional enhancements alleging
two prior DWI convictions, making this charge a third-degree felony. The State also
alleged two prior felony convictions to enhance the punishment range for the offense
to that of a first-degree felony.
      Appellant pleaded guilty to DWI and true to both jurisdictional enhancements.
Appellant also pleaded true to one sentencing enhancement for a prior felony, with
the State abandoning the other, making the offense punishable as a second-degree
felony.
      At the sentencing hearing, the State introduced Appellant’s ten prior
convictions without objection from Appellant.           These judgments included
Appellant’s four prior DWI convictions from 1986, 1989, 1991, and 1993. The
judgments also included Appellant’s 1977 conviction for delivery of a controlled
substance, 1987 conviction for burglary of a habitation, and 2002 conviction for
indecency with a child, as well as other offenses. The State also introduced a
certificate of analysis showing that Appellant’s blood alcohol concentration at the
time of his arrest was 0.155. The State then rested its case.
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      Appellant called his daughter as a character witness. She testified about
Appellant, their relationship, and how alcohol has impacted their family. Appellant
testified about the circumstances surrounding the offense, his responsibilities as to
his elderly parents, and his prior interactions with the criminal justice system.
      After considering all the evidence, the trial court assessed punishment at
confinement for seventeen years and a $1,000 fine.
                                       Analysis
      In Appellant’s sole issue, he contends that the trial court violated his Eighth
Amendment right to be free from cruel and unusual punishment by sentencing
Appellant to confinement for seventeen years. Specifically, Appellant argues that
his sentence is grossly disproportionate to the offense.
      When we review a trial court’s sentencing determination, “a great deal of
discretion is allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984). We will not disturb a trial court’s punishment decision
absent a showing of abuse of discretion. Id.
      We first note that disproportionate-sentence claims must be preserved for
appellate review. See TEX. R. APP. P. 33.1(a); Curry v. State, 910 S.W.2d 490, 497
(Tex. Crim. App. 1995) (holding that Eighth Amendment issue was waived because
it was not raised in the trial court); Alvarez v. State, 525 S.W.3d 890, 892 (Tex.
App.—Eastland 2017, pet. ref’d). Here, Appellant failed to object to his sentence in
the trial court, either at the time of disposition or in any posttrial motion. Appellant
did not object, under constitutional or other grounds, to the alleged excessiveness of
the sentence. Accordingly, Appellant failed to preserve error and has waived his
complaint on appeal.
      But even if Appellant had preserved error, Appellant’s claim of cruel and
unusual punishment still fails because his sentence is not grossly disproportionate.
The Eighth Amendment prohibits grossly disproportionate sentences for an offense.
                                           3
Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—Eastland 2001, pet. ref’d) (citing
Harmelin v. Michigan, 501 U.S. 957 (1991)). Generally, a sentence that falls within
the statutory range of punishment is not “excessive, cruel, or unusual.” State v.
Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016).
         Driving while intoxicated is normally a Class B misdemeanor.           PENAL
§ 49.04(b). But the offense is a third-degree felony if the accused has two prior
convictions for any offense relating to the operation of a motor vehicle while
intoxicated. Id. § 49.09(b)(2). Additionally, if the accused has a prior felony
conviction, other than a state jail felony, the third-degree felony will be punished as
a second-degree felony. Id. § 12.42(a). The statutory range of punishment for a
second-degree felony is confinement for not more than twenty years or less than two
years. Id. § 12.33(a). The trial court may also assess a fine of up to $10,000. Id.
§ 12.33(b).
         Here, Appellant was charged with a third-degree felony based on his prior
DWI convictions, and the punishment range was enhanced to a second-degree felony
because of a prior felony conviction. The trial court assessed punishment at
confinement for seventeen years and a $1,000 fine, which is within the statutory
range.
         Despite falling within the statutory range, an individual’s sentence may still
constitute cruel and unusual punishment if it is grossly disproportionate to the
offense. Solem v. Helm, 463 U.S. 277, 290 (1983). However, this is a very narrow
exception. “[O]utside the context of capital punishment, successful challenges to
the proportionality of particular sentences [will be] exceedingly rare.” Id. at 289–
90 (second alteration in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272
(1980)).
         To evaluate the proportionality of a sentence, the first step is to make a
threshold comparison between the gravity of the offense and the severity of the
                                            4
sentence. Id. To analyze the gravity of the offense, we examine the harm caused or
threatened to the victim, the offender’s culpability, and the offender’s prior
adjudicated and unadjudicated offenses. Simpson, 488 S.W.3d at 323. “In the rare
case in which this threshold comparison leads to an inference of gross
disproportionality,” we then compare the defendant’s sentence with sentences
received for similar crimes in the same jurisdiction and sentences for the same crime
in other jurisdictions. Id. (citing Graham v. Florida, 560 U.S. 48, 60 (2010)).
      Appellant argues that he received a seventeen-year sentence for behavior that,
without enhancement, was a misdemeanor. Appellant also emphasizes the length of
time between the enhancement convictions and the current offense. Specifically,
Appellant points out that the two prior DWIs were approximately fifteen and twenty
years prior to the current offense and that the felony conviction for delivery of a
controlled substance became final approximately thirty-seven years before the
current DWI conviction. Appellant also states that his punishment, in part, was
based upon his alcoholism.
      At the sentencing hearing, the State presented evidence of Appellant’s ten
prior convictions. This included Appellant’s four prior convictions for driving while
intoxicated. Appellant also had convictions for delivery of a controlled substance,
burglary of a habitation, and indecency with a child. Further, Appellant testified that
he had violated his probation for the delivery conviction and that his parole for the
burglary conviction was revoked at the time of his second DWI conviction. There
was no evidence that Appellant has an ability to be rehabilitated.
      On this record, we hold that Appellant has failed to show that his sentence is
grossly disproportionate. Therefore, we need not compare Appellant’s sentence to
others. We overrule Appellant’s sole issue.




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                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           KEITH STRETCHER
                                                           JUSTICE


October 10, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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