                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00410-CR

JOSE ALFERDO VALDEZ,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-330-C1


                          MEMORANDUM OPINION


      In three issues, appellant, Jose Alferdo Valdez, challenges the punishment

assessed based on his conviction for burglary of a habitation, a first-degree felony. See

TEX. PENAL CODE ANN. § 30.02(a), (d) (West 2011). We affirm.

                                     I.     BACKGROUND

      Though uninvited, appellant entered the residence of Clarence Cox, a seventy-

eight-year-old man who lives alone. Upon entering Cox’s house, appellant said, “Give

me your money. Give me your billfold.” Cox responded, “Get the hell out of here.”
Appellant proceeded to beat and choke Cox and then took Cox’s wallet and left the

house. Witnesses testified that Cox’s eye was swollen and that he had blood running

down his face. Caye Caves, Cox’s daughter, testified that it appeared that Cox “just had

been beaten up—severely.” Caves noted that Cox had bruising and a handprint on his

neck from where appellant had choked him. Cox was transported to the hospital,

where he had to stay for two nights in the Intensive Care Unit because he had bleeding

in his brain as a result of the beating.

        Appellant was subsequently arrested and charged by indictment with burglary

of a habitation, a first-degree felony. See id. The indictment was later amended to

include an enhancement paragraph referencing appellant’s prior felony convictions for

assault against a public servant and injury to an elderly person, for which he served

four years in the Institutional Division of the Texas Department of Criminal Justice.

Appellant pleaded guilty to the charged offense, and the case proceeded to punishment.

        Appellant elected to have the jury determine his sentence.            During the

punishment phase, appellant presented evidence of his mental illness, including the

testimony of psychologist Dr. William Lee Carter. Dr. Carter opined that appellant

suffered from treatable mental illness that resulted from years of huffing paint and

abusing drugs. At the conclusion of the evidence, appellant pleaded “true” to the

enhancement paragraph contained in the indictment, and the jury sentenced appellant

to ninety-nine years’ incarceration in the Institutional Division of the Texas Department

of Criminal Justice.    Thereafter, appellant filed a motion for new trial, which was

overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c). This appeal followed.

Valdez v. State                                                                      Page 2
                          II.     CRUEL AND/OR UNUSUAL PUNISHMENT

        In his first two issues, appellant contends that his sentence violates his state and

federal rights to be free from cruel and/or unusual punishment. We disagree.

        The Eighth Amendment to the Constitution of the United States provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. CONST. amend. VIII. This provision was made

applicable to the states by the Due Process Clause of the Fourteenth Amendment.

Robinson v. California, 370 U.S. 660, 666-67, 82 S. Ct. 1417, 1420-21, 8 L. Ed. 2d 758 (1962);

see U.S. CONST. amend XIV. On the other hand, article 1, section 13 of the Texas

Constitution provides that: “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel or unusual punishment inflicted.” TEX. CONST. art. 1, § 13. The

language of article 1, section 13 of the Texas Constitution is nearly identical to the Cruel

and Unusual Punishments Clause of the Eighth Amendment, with one variation. The

Texas     Constitution   states   its   prohibition   disjunctively—“cruel     or   unusual”

punishments—instead of the Eighth Amendment’s conjunctive formulation—“cruel

and unusual.”

        Appellant appears to advocate that the presumably more expansive language of

the Texas Constitution should apply in this case. However, apart from the text itself,

appellant offers no relevant authority to support his argument that the state and federal

constitutional provisions are not coextensive because of the substantively different

meanings of “and” and “or.” In fact, the Texas Court of Criminal Appeals has rejected

the contention that the distinction permits the Texas provision to be interpreted more

Valdez v. State                                                                         Page 3
expansively than the Eighth Amendment with respect to the constitutionality of capital

punishment. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997); Anderson v.

State, 932 S.W.2d 502, 509 (Tex. Crim. App. 1996) (holding that capital punishment is

neither cruel nor unusual for purposes of the Texas Constitution); see also Duran v. State,

363 S.W.3d 719, 723 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). While appellant

argues, based on the text, that a punishment may be prohibited in Texas solely because

it is “cruel” or solely because it is “unusual,” he does not cite case law stating that these

terms have unique meanings under the state constitution.1 Accordingly, based on the

authority from the Texas Court of Criminal Appeals, we will assume that the pertinent

terms of article 1, section 13 of the Texas Constitution have the same meaning as in the

Eighth Amendment of the United States Constitution. See Duran, 363 S.W.3d at 723-24.

        Texas courts have routinely held that punishment that falls within the limits

prescribed by a valid statute is not excessive, cruel, or unusual. See id. (citing Samuel v.

State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972) (“[W]here the punishment assessed by

the judge or jury was within the limits prescribed by the statute the punishment is not


          1 As mentioned above, appellant does not cite, nor are we aware of, case law interpreting article

1, section 13 of the Texas Constitution to be more expansive than the Eighth Amendment of the United
States Constitution as it pertains to cruel and unusual punishment. In fact, as appellant acknowledges,
Texas courts regularly consider both provisions coextensively. See Duran v. State, 363 S.W.3d 719, 723-24
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); Baldridge v. State, 77 S.W.3d 890, 894 (Tex. App.—
Houston [14th Dist.] 2002, no pet.) (“Neither by argument nor authority has appellant established that the
provisions of the Texas Constitution offer broader or greater protection than the Eighth Amendment of
the United States Constitution.”); Puga v. State, 916 S.W.2d 547, 550 (Tex. App.—San Antonio 1996, no
pet.); see also Rodriguez v. State, No. 08-11-00349-CR, 2013 Tex. App. LEXIS 14356, at *5 (Tex. App.—El
Paso Nov. 22, 2013, no pet. h.) (mem. op., not designated for publication); Washington v. State, Nos. 13-12-
00661-CR, 13-12-00662-CR, 13-12-00663-CR, 2013 Tex. App. LEXIS 9240, at *2 (Tex. App.—Corpus Christi
July 25, 2013, no pet.) (mem. op., not designated for publication). In light of this authority and the dearth
of authority supporting appellant’s position, we decline appellant’s invitation to extend the protections of
article 1, section 13 of the Texas Constitution further than that afforded by the Eighth Amendment of the
United States Constitution.

Valdez v. State                                                                                       Page 4
cruel and unusual within the constitutional prohibition.”); Ajisebutu v. State, 236 S.W.3d

309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“Generally, a sentence within

the statutory range of punishment for an offense will not be held cruel or unusual

under the Constitution of either Texas or the United States.”)); see also Jordan v. State, 495

S.W.2d 949, 952 (Tex. Crim. App. 1979); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—

Fort Worth 2005, no pet.). Moreover, the reasonableness of punishments assessed by

juries and trial courts in this State should not be questioned if they are within the range

of punishment prescribed by statute for the offense, “unless they are so plainly

disproportionate to the offense as to shock the sense of humankind and thus constitute

cruel and unusual punishments prohibited by the United States and Texas

Constitutions.” See Hyde v. State, 723 S.W.2d 754, 755 (Tex. App.—Texarkana 1986, no

pet.); see also Hernandez v. State, No. B14-92-00704-CR, 1994 Tex. App. LEXIS 2182, at

**17-18 (Tex. App.—Houston [14th Dist.] Sept. 1, 1994, no pet.) (mem. op., not

designated for publication).

        Here, appellant was charged with first-degree felony burglary of a habitation,

which was enhanced by appellant’s prior felony convictions for assault of a public

servant and injury to an elderly person. See TEX. PENAL CODE ANN. § 30.02(d); see also id.

§ 12.42(c)(1) (West Supp. 2013). Accordingly, appellant was subject to a punishment

range of “life, or for any term of not more than 99 years or less than 15 years.” TEX.

PENAL CODE ANN. § 12.42(c)(1). Based on this authority, appellant’s ninety-nine-year

sentence in this case is authorized by law and within the prescribed range for enhanced



Valdez v. State                                                                         Page 5
first-degree felonies and, thus, is not excessive.2 See id.; see also Jordan, 495 S.W.2d at 952;

Samuel, 477 S.W.2d at 614; Duran, 363 S.W.3d at 723-24; Ajisebutu, 236 S.W.3d at 314;

Dale, 170 S.W.3d at 799. Accordingly, we cannot say that appellant’s sentence violates

the United States or Texas Constitutions. See U.S. CONST. amend. VIII; TEX. CONST. art.

1, § 13; see also Jordan, 495 S.W.2d at 952; Samuel, 477 S.W.2d at 614; Duran, 363 S.W.3d at

723-24; Ajisebutu, 236 S.W.3d at 314; Dale, 170 S.W.3d at 799. As such, we overrule

appellant’s first two issues.

                         III.    PROPORTIONALITY OF APPELLANT’S SENTENCE

        In his third issue, appellant argues that his sentence is grossly disproportionate

and, in turn, violative of the Eighth Amendment to the United States Constitution.

        The Eighth Amendment of the United States Constitution prohibits cruel and

unusual      punishment,        which    includes      extreme     sentences      that    are    grossly

disproportionate to the crime. Graham v. Florida, 560 U.S. 48, 58-60, 130 S. Ct. 2011, 2021,


        2 Citing primarily law-review articles, appellant asserts that his punishment was excessive on the
account of his mental illness. Once again, appellant does not cite any binding authority to support this
contention. Furthermore, the record reflects that appellant’s mental illness stems from years of huffing
paint and drug abuse. Moreover, during his previous stint in prison, appellant was transferred to Rusk
State Hospital for specialized treatment of his mental illness for four years. Appellant also received
treatment at Austin State Hospital and the DePaul Center. Apparently, none of these treatments were
successful, as appellant engaged in numerous fights throughout his incarceration and once he was
released from prison. At one point, appellant threatened to kill his mother. Though Dr. Carter opined
that appellant could be treated, he later acknowledged that appellant probably should be confined in
prison to prevent another unprovoked outburst, because appellant’s brain damage will remain and he
could still be dangerous in the future. Based on our review of the record and the lack of binding
authority on this matter, we do not believe that appellant’s sentence shocks the sense of humankind as to
be cruel and unusual punishment prohibited by the United States and Texas Constitutions. See Hyde v.
State, 723 S.W.2d 754, 755 (Tex. App.—Texarkana 1986, no pet.); see also Hernandez v. State, No. B14-92-
00704-CR, 1994 Tex. App. LEXIS 2182, at **17-18 (Tex. App.—Houston [14 th Dist.] Sept. 1, 1994, no pet.)
(mem. op., not designated for publication). This is especially true given the fact that appellant’s own
expert admitted that confinement in prison probably is necessary to prevent another unprovoked
outburst from appellant. We also note that, besides speculation, appellant has not provided any tangible
evidence demonstrating that the current state of the Texas prison system is ill-equipped to address
appellant’s mental-health issues.

Valdez v. State                                                                                    Page 6
176 L. Ed. 2d 825 (2010); see U.S. CONST. amend VIII. It does not, however, require strict

proportionality between the crime and sentence. Ewing v. California, 538 U.S. 11, 23, 123

S. Ct. 1179, 1186-87, 155 L. Ed. 2d 108 (2003). The precise contours of the “grossly

disproportionate” standard are unclear, but it applies only in “exceedingly rare” and

“extreme” cases. Lockyer v. Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 1173-74, 155 L. Ed.

2d 144 (2003). “A narrow exception to the general rule that a sentence within the

statutory limits is not excessive, cruel, or unusual is recognized when the sentence is

grossly disproportionate to the offense.” Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—

Fort Worth 2005, no pet.); see Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 S. Ct. 2680,

2707, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring); Solem v. Helm, 463 U.S. 277, 290-

92, 103 S. Ct. 3001, 3010-11, 77 L. Ed. 2d 637 (1983); McGruder v. Puckett, 954 F. 2d 313,

316 (5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also

Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.—Texarkana 2006, no pet.) (noting that

the prohibition against grossly disproportionate punishment survives under the Eighth

Amendment apart from any consideration of whether the punishment assessed is

within the range established by the legislature).

        In conducting a proportionality analysis, we first make a threshold comparison

of the gravity of the offense against the severity of the sentence. Moore v. State, 54

S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d); see Solem, 463 U.S. at 290-91,

103 S. Ct. at 3010; McGruder, 954 F. 2d at 316. If we determine that the sentence is

grossly disproportionate to the offense, we must then compare the sentence received to

sentences for similar crimes in this jurisdiction and sentences for the same crime in

Valdez v. State                                                                        Page 7
other jurisdictions. Alvarez v. State, 63 S.W.3d 578, 581 (Tex. App.—Fort Worth 2001, no

pet.); see Solem, 463 U.S. at 291-92, 103 S. Ct. at 3010; McGruder, 954 F. 2d at 316.

Punishment will be grossly disproportionate to a crime only when an objective

comparison of the gravity of the offense against the severity of the sentence reveals the

sentence to be extreme. Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th

Dist.] 2002, pet. ref’d) (citing Harmelin, 501 U.S. at 1004-06, 111 S. Ct. at 2706-08).

        With regard to the first prong of the Solem analysis, the evidence demonstrated

that appellant entered the house of Cox, an elderly man; demanded Cox’s wallet; and

beat Cox severely when Cox refused to comply with appellant’s demands. See Solem,

463 U.S. at 290-91, 103 S. Ct. at 3010. As a result of the beating, Cox sustained cuts,

bruises, and bleeding in the brain, which required a two-day stay in the Intensive Care

Unit. Moreover, in addition to this violent offense, the record reflects that appellant has

two prior-felony convictions for violent offenses, including assault of a public servant

and injury to an elderly person. See Winchester v. State, 246 S.W.3d 386, 390 (Tex. App.—

Amarillo 2008, pet. ref’d) (stating that, when conducting an Eighth Amendment

proportionality analysis, we may consider the sentence imposed in light of the

accused’s prior offenses); Culton v. State, 95 S.W.3d 401, 403 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref’d) (same). These prior felony convictions were used to enhance the

punishment range for the offense charged in this case.

        Comparing the gravity of the offense against the severity of the sentence, and

based on our review of the record, we do not believe that appellant’s ninety-nine-year

sentence is grossly disproportionate to the offense. See Moore, 54 S.W.3d at 542; see also

Valdez v. State                                                                           Page 8
Solem, 463 U.S. at 290-91, 103 S. Ct. at 3010; McGruder, 954 F. 2d at 316. And because we

have concluded that the imposed sentence is not grossly disproportionate to the

charged offense, we need not address the second and third prongs of the Solem

analysis.3 See TEX. R. APP. P. 47.1, 47.4; see also Solem, 463 U.S. at 291-92, 103 S. Ct. at

3010; McGruder, 954 F. 2d at 316; Davis v. State, 119 S.W.3d 359, 364 (Tex. App.—Waco

2003, pet. ref’d). Accordingly, we overrule appellant’s third issue.

                                              IV.     CONCLUSION

         Having overruled all of appellant’s issues, we affirm the judgment of the trial

court.



                                                          AL SCOGGINS
                                                          Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed February 6, 2014
Do not publish
[CRPM]

*(Chief Justice Gray concurs. A separate opinion will not be issued. He has, however,
provided the following note. By joining the judgment and opinion in this case, I do not
foreclose the possibility that the Texas right against cruel or unusual punishment would
prevent a level or type punishment that did not violate the United States Constitutional
prohibition against cruel and unusual punishment. Words are the tools of the legal
profession, and we are charged to learn to use them with precision. “And” is different
than “or.” Words have meaning, and the use of different words has a consequence. But

         3However, we do note that appellant did not address, nor does the record support, a review of
the second and third prongs of the Solem analysis. See Solem v. Helm, 463 U.S. 277, 291-92, 103 S. Ct. 3001,
3010, 77 L. Ed. 2d 637 (1983).

Valdez v. State                                                                                       Page 9
as to this case, on this record, I am confident that under any measure or analysis, a
ninety-nine-year sentence for Mr. Valdez as his punishment for the crime he committed
violates neither constitution.)




Valdez v. State                                                               Page 10
