                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                                    No. 07-13-00341-CR
                                ________________________

                           ROGER DUANE STONE, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 316th District Court
                                    Hutchinson County, Texas
                   Trial Court No. 10,928; Honorable David Gleason, Presiding


                                          May 15, 2015

                               MEMORANDUM OPINION
                     Before CAMPBELL and HANCOCK and PIRTLE, JJ.


           Appellant, Roger Duane Stone, appeals from a judgment following a jury trial

sentencing him to seventy-five years confinement and assessing a $10,000 fine for

possession of four grams or more, but less than 200 grams, of methamphetamine1 and



       1
         See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010) (an offense under this section is
a second degree felony). Appellant’s second degree felony conviction was enhanced to a first degree
felony conviction due to a prior felony conviction. See TEX. PENAL CODE ANN. § 12.42(b) (West Supp.
2014). See also id. at §§ 12.32, 12.33 (West 2011).
confinement for two years and a $10,000 fine for tampering with physical evidence,2

with the two sentences to be served concurrently. In a single issue, Appellant asserts

his sentence for possession of a controlled substance constitutes cruel and unusual

punishment and, as such, violates the Eighth Amendment of the United States

Constitution. We affirm.


                                CRUEL AND UNUSUAL PUNISHMENT


       Appellant asserts seventy-five years confinement is cruel and unusual

punishment because he is an addict living on disability, has had no opportunity for

formal drug treatment, and is a decent, generous human being. He contends continued

confinement will do nothing to help him beat his habit, will be degrading to his dignity,

and amounts to a life sentence due to his age. Appellant concedes his punishment is

within the range established by the Legislature and does not challenge the

constitutionality of the statutes under which he was sentenced.


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

within the range set by the Legislature in a valid statute, the punishment is not

excessive. Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.—Amarillo 2008, pet.

ref’d). That said, however, 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.

(collected cases cited therein). See Ham v. State, 355 S.W.3d 819, 826 (Tex. App.—

Amarillo 2011, pet. ref’d).

       2
          See TEX. PENAL CODE ANN. § 37.09 (West Supp. 2014) (an offense under this section is a third
degree felony). Appellant’s third degree felony conviction was enhanced to a second degree felony
conviction due to a prior felony conviction. See id. at § 12.42(a), §§ 12.33, 12.34 (West 2011).
                                                  2
       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 the commission of the same crime in other jurisdictions. Solem v. Helm,

463 U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed.2d 637 (1983). See Harmelin v. Michigan,

501 U.S. 957, 1004-05, 111 S. Ct. 2680, 115 L. Ed.2d 836 (1991) (Kennedy J.,

concurring in part and concurring in judgment) (Eighth Amendment does not require

strict proportionality between crime and punishment but forbids only against sentences

that are grossly disproportionate to the crime). Only if the court can infer a sentence is

grossly disproportionate to an offense should the court consider the remaining factors in

the Solem test. See Winchester, 246 S.W.3d at 389 (citing McGruder v. Puckett, 954

F.2d 313, 315 (5th Cir. 1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed.2d

98 (1992)). Moreover, state legislatures should be accorded substantial deference and

“a reviewing court rarely will be required to engage in extended analysis to determine

that a sentence is not constitutionally disproportionate.” Winchester, 246 S.W.3d at 389

(quoting Solem, 463 U.S. at 290 n.16).


       Appellant was sentenced under the provisions of section 12.42 of the Texas

Penal Code, a statute providing for penalties for repeat and habitual felony offenders.

See TEX. PENAL CODE ANN. § 12.42 (West Supp. 2014). 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. Winchester, 246 S.W.3d at 390. Further, a repeat offender’s

sentence is based not merely on that person’s most recent offense but also on the
                                             3
propensities he has demonstrated over a period of time during which he has been

convicted of and sentenced for other crimes. Id. (citing 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. Id.


       Appellant’s criminal history goes back as far as 1996 when he was arrested for

resisting arrest. In 1997, he was arrested for forgery of a financial document. Although

he received probation for three years, his probation was revoked in thirteen months and

he was sentenced to two years confinement.            Thereafter, he was in and out of

confinement on three successive convictions for possession of controlled substance(s)

and for evading arrest or detention with a motor vehicle until his present conviction.

Given Appellant’s past criminal history and the similarity of the offenses for which he

now stands convicted, we cannot infer his present sentence is grossly disproportionate.

This is particularly so here where the sentence is less than the statutory maximum and

evidence of disproportionality is lacking. Appellant’s single issue is overruled.


                                       CONCLUSION


       The trial court’s judgment is affirmed.


                                                 Patrick A. Pirtle
                                                    Justice


Do not publish.




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