                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-435-CR


JAMES HARROLD BURCHFIELD                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE

                                   ------------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     Appellant James Harrold Burchfield appeals his conviction and sentence

for felony driving while intoxicated enhanced by a prior felony.2 We affirm.




     1
         … See Tex. R. App. P. 47.4.
     2
      … See Tex. Penal Code Ann. §§ 12.42(a)(3), 49.09(b)(2) (Vernon Supp.
2008).
      After appellant waived a jury and entered an open plea of guilty, the trial

court reviewed a presentence investigation report (“PSI”) and sentenced

appellant to seven years’ confinement.

      In his first issue, appellant argues that seven years is cruel and unusual

punishment because the trial court failed to take into account his age and health

concerns. The record, however, shows that the trial court explicitly weighed

its concerns regarding appellant’s health against the danger of him remaining

in society. After hearing arguments of counsel, the trial judge stated, “Despite

your health problems, I don’t feel like you are a good risk for me out in the

community, and I cannot feel responsible for anybody’s life that you damage

or destroy because you go back to drinking alcohol.”            Thus, appellant’s

argument that the trial court failed to consider his health is not supported by the

record.

      Appellant also contends that because he was seventy-five years of age

and in poor health at the time of sentencing, he is unlikely to survive his term

of confinement.    Thus, he argues, seven years in prison amounts to a life

sentence for driving while intoxicated, which is grossly disproportionate to the

offense committed.




                                        2
      We review a sentence imposed by a trial court for an abuse of discretion.3

As a general rule, a sentence imposed within the statutory limits is not

excessive, cruel, or unusual punishment.4 Appellant’s sentence is within the

range of punishment set by the legislature for the offense he committed.

Driving while intoxicated with felony repetition is a third-degree felony, which

appellant’s prior felony conviction for retaliation enhanced to a second-degree

felony.5 The statutorily prescribed punishment range for a second-degree felony

is two to twenty years’ confinement.6 Appellant’s sentence of seven years is

well within the prescribed range.

      However, a narrow exception to the general rule that a sentence within

the statutorily prescribed range is not cruel or unusual punishment is recognized

when the sentence is grossly disproportionate to the offense.7 To evaluate the



      3
          … Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).
      4
      … Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973);
Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App.—Fort Worth 2001, no pet.).
      5
      … See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003), §§ 12.42(a)(3),
49.09(b)(2) (Vernon Supp. 2008).
      6
          … Tex. Penal Code Ann. § 12.33(a) (Vernon 2003).
      7
       … See Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth
2001, pet. ref’d); see also Harmelin v. Michigan, 501 U.S. 957, 1004–05, 111
S. Ct. 2680, 2707 (1991) (Kennedy, J., concurring); Solem v. Helm, 463 U.S.
277, 290–92, 103 S. Ct. 3001, 3010–11 (1983); McGruder v. Puckett, 954
F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992).

                                       3
proportionality of a particular sentence, the United States Supreme Court has

identified the following criteria:

      (1) the gravity of the offense and the harshness of the punishment;

      (2) the sentences imposed on other criminals in the same jurisdiction; and

      (3) the sentences imposed for the same offense in other jurisdictions. 8

      In conducting a proportionality analysis, we first make a threshold

comparison of the gravity of the offense against the severity of the sentence. 9

We judge the gravity of the offense in light of the harm caused or threatened

to the victim or society and the culpability of the offender. 10      Only if we

determine that the sentence is grossly disproportionate to the offense do we

consider the remaining factors.11

      Here, appellant pleaded guilty to felony driving while intoxicated enhanced

by a prior felony conviction for the offense of retaliation.12 The previous felony

conviction elevated the instant offense to a second-degree felony.13 Thus, the



      8
          … See Solem, 463 U.S. at 292, 103 S. Ct. at 3011.
      9
          … Moore, 54 S.W.3d at 542.
      10
           … Id. (citing Solem, 463 U.S. at 291–92, 103 S. Ct. at 3010).
      11
           … Id.
      12
           … Tex. Penal Code Ann. § 49.09(b)(2).
      13
           … Id. § 12.42(a)(3) (Vernon Supp. 2008).

                                        4
offense appellant committed is classified as within the third most serious

category of offenses in Texas; only capital offenses and first degree felonies are

more serious.    The harm threatened to society is significant:          automobile

fatalities, injuries, and pecuniary loss caused by drunken drivers.          Finally,

appellant’s culpability is great. His trial counsel conceded that appellant has

over a fifty-year history of arrests that are alcohol related, in addition to arrests

for other offenses. Under these circumstances, a seven-year sentence is not

grossly disproportionate to the offense appellant committed.14 Because we do

not find the threshhold test to be satisfied, we need not apply the remaining

elements of the Solem test. Appellant’s first issue is overruled.

      In his second issue, appellant complains that the trial court erred by

relying on the PSI to assess his sentence.        He contends that article 42.12

section 9(a) of the code of criminal procedure “implies that the PSI officer

should not make any recommendation.” Thus, he argues, because the trial




      14
        … See Robertson v. State, No. 12-01-00241-CR, 2002 WL 31845862,
at *2 (Tex. App.—Tyler Dec. 20, 2002, no pet.) (not designated for publication)
(holding seven-year sentence for third-degree felony DWI not grossly
disproportionate); Delacruz v. State, No. 06-04-00062-CR, 2005 WL 14083,
at *2 (Tex. App.—Texarkana Jan. 4, 2005, no pet.) (mem. op., not designated
for publication) (holding ten-year sentence for third-degree felony DWI for
defendant with no prior felonies not grossly disproportionate).

                                         5
court relied on the recommendation in the PSI, it violated section 9(a) and

committed fundamental error.15

         Texas Code of Criminal Procedure article 42.12, section 9(a) provides for

the preparation of a PSI. In pertinent part, it states that “It is not necessary

that the report contain a sentencing recommendation. . . .“ 16 By the statutes’s

plain language, the inclusion of a sentencing recommendation is optional. If a

sentencing recommendation is optional, it is not improper for the author of the

PSI to make one.

         Moreover, the record shows that the trial court’s stated reasons for

imposing the seven-year sentence were the dangers appellant imposed on the

community, not because the PSI suggested it. We overrule appellant’s second

issue.

Having overruled both of appellant’s issues, we affirm the trial court’s

judgment.




                                                   PER CURIAM

PANEL: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)


         15
              … See Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a) (Vernon Supp.
2008).
         16
              … Id.

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DELIVERED: August 13, 2009




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