                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO.    2-09-247-CR
                                 NO.    2-09-248-CR
                                 NO.    2-09-249-CR
                                 NO.    2-09-250-CR


ALISIA CONSUELO PADILLA                                                APPELLANT

                                            V.

THE STATE OF TEXAS                                                           STATE

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

           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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

                          MEMORANDUM OPINION 1

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

      Upon her open pleas of guilty to two charges of intoxication manslaughter and

two charges of intoxication assault, each charged in a separate indictment, the trial

court found Appellant Alisia Consuelo Padilla guilty of those offenses and assessed

her punishment at sixteen years’ confinement for each intoxication manslaughter,

with the sentences to be served consecutively, and ten years’ confinement for each


      1
           See Tex. R. App. P. 47.4.
intoxication assault, with the sentences to be served concurrently. In her sole point,

Appellant contends that the trial court erred by sentencing her to a total of thirty-two

years’ incarceration because the sentences were grossly disproportionate when

considered in light of other sentences from the Second District of Texas for the same

offenses and in light of the facts and circumstances which constituted the offenses.

Because we hold that the trial court did not abuse its discretion in assessing these

sentences, we affirm the trial court’s judgments.

      On February 29, 2008, Appellant attended her niece’s birthday party at the

American Legion Hall in South Fort W orth. Appellant and her husband, Louis

Reyes, left the party around midnight. They were both so intoxicated that they had

to be helped to their pickup. Reyes was so intoxicated that he could not drive, so

Appellant, who was also quite intoxicated, decided to drive. As she was driving out

of the parking lot, Appellant struck another vehicle, but its owner assured the couple

that no damage had been done to his vehicle.

      Appellant continued onto the roadway. She ran a red light at a high rate of

speed, hitting another car driven by Cynthia Revilla. Revilla’s friend Danielle Hooten

and Hooten’s son A.H. were also in the car. Revilla and Hooten were fatally injured

in the accident. The impact caused A.H., still in his car seat, to be thrown from

Revilla’s car. He was initially unconscious after the wreck but was crying before he

was taken to the hospital.




                                           2
      In the same incident, Appellant also struck a vehicle being driven by Thomas

Vasquez. Vasquez and his son, who was also in the car, were injured, although not

seriously. Appellant and Reyes were also injured.

      Appellant admitted to police officers at the scene that she had been drinking

that night, and one officer testified at trial that he smelled an odor of alcohol coming

from inside Appellant’s truck. Appellant was taken to the hospital where an officer

performed the horizontal gaze nystagmus test and observed six clues of intoxication.

A blood test showed Appellant’s alcohol concentration level to be 0.24. Appellant

was indicted for intoxication manslaughter for the deaths of Revilla and Hooten and

intoxication assault for the injuries suffered by Reyes and A.H.

      This court has previously explained our approach to issues complaining of

grossly disproportionate sentences:

      Much confusion exists concerning whether the Eighth Amendment
      contains a proportionality guarantee prohibiting sentences that are
      grossly disproportionate to the offense. In 1983, in Solem v. Helm, the
      United States Supreme Court affirmatively held that the Eighth
      Amendment prohibited “disproportionate” prison sentences. In Solem,
      the Supreme Court . . . identified three criteria to be used to evaluate
      the proportionality of a particular sentence. They are “the gravity of the
      offense and the harshness of the penalty; . . . the sentences imposed
      on other criminals in the same jurisdiction; and . . . the sentences
      imposed for commission of the same crime in other jurisdictions.”

            In 1991, in Harmelin, the Supreme Court called into question the
      continued viability of Solem. . . . Justice Scalia, joined by Chief Justice
      Rehnquist, addressed the appellant’s proportionality argument by
      holding that Solem was “simply wrong” and argued that the Eighth
      Amendment contains no proportionality guarantee in the
      non-death-penalty context. Justice[] Kennedy, joined by Justices


                                           3
      O’Connor and Souter, concurred and reasoned that indeed the Eighth
      Amendment did encompass “a narrow proportionality principle” that
      “applies to noncapital sentences.”

             Left to decipher whether, in the wake of Harmelin, the Eighth
      Amendment did or did not prohibit disproportionate sentences in a
      non-death-penalty context, the Fifth Circuit concluded [in McGruder v.
      Puckett] that “disproportionality survives; Solem does not.” The Fifth
      Circuit applied a modified Solem test adopted by Justice Kennedy in
      Harmelin. That is, the court initially made a threshold comparison of
      the gravity of the offense against the severity of the sentence. Only
      upon a determination that the sentence is grossly disproportionate to
      the offense would the court consider the remaining Solem factors.

            The majority of the Texas appellate courts have followed and
      applied the Fifth Circuit’s McGruder analysis in addressing Eighth
      Amendment proportionality complaints. W e also adopt the McGruder
      proportionality analysis.

             W e first make a threshold comparison of the gravity of the
      offense against the severity of the sentence. W e are to 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. 2

      Although she was aware that she was intoxicated and, indeed, was unable to

get out of the parking lot without striking another vehicle, Appellant nevertheless

drove out of the parking lot and caused the deaths of Hooten and Revilla. Appellant

pled guilty and was convicted of intoxication manslaughter in each of those two

deaths.     Intoxication manslaughter is a second degree felony with a range of

confinement of two years to twenty years. 3



      2
         Moore v. State, 54 S.W .3d 529, 541–42 (Tex. App.—Fort W orth 2001, pet.
ref’d) (citations omitted).
      3
           Tex. Penal Code Ann. §§ 12.33(a), 49.08(b) (Vernon Supp. 2009).

                                         4
      In addition to the two intoxication manslaughter offenses, Appellant also

caused serious bodily injury to her husband and A.H. as the result of her driving

while intoxicated.     Intoxication assault is a third degree felony with a range of

confinement of two years to ten years. 4

      As the Harmelin court instructs us, the length of a criminal sentence is “purely

a matter of legislative prerogative.” 5 All four sentences imposed were within the

ranges of punishment established by the legislature. 6       Although under ordinary

circumstances, when a defendant has been convicted of multiple offenses that have

been properly joined and prosecuted in a single trial, the sentences must run

concurrently, 7 the Texas Legislature amended section 3.03 of the penal code to

permit the trial court to order sentences to be served consecutively when

      the accused is found guilty of more than one offense arising out of the
      same criminal episode . . . if each sentence is for a conviction of . . . an
      offense . . . under section 49.07 or 49.08, regardless of whether the
      accused is convicted of violations of the same section more than once
      or is convicted of violations of both sections. 8

      That is, although the trial court is not required to order the sentences be

served consecutively, the trial court has the authority, within its sound discretion, to


      4
           Id. §§ 12.34(a), 49.07(c).
      5
           Harmelin v. Michigan, 501 U.S. 957, 962, 111 S. Ct. 2680, 2684 (1991).
      6
           See Tex. Penal Code Ann. §§ 12.33(a), 12.34(a), 49.07(c), 49.08(b).
      7
           Id. § 3.03(a).
      8
           Id. § 3.03(b)(1).

                                           5
order consecutive sentences. As the State points out, to hold that the trial court

erred in stacking the sentences, this court would be required to hold that the trial

court abused the discretion granted to it by the legislature in amending section 3.03. 9

      The record reflects that Appellant wanted to celebrate with her husband and

niece but was irresponsible and drank excessively. Appellant began drinking even

before she arrived at the party, stopping with her husband at a bar for a drink. W hen

they decided to leave the party, Appellant and her husband were both so thoroughly

intoxicated that they had to be helped to their truck.        Nevertheless, Appellant

decided to drive home from the party. Her husband was obviously too intoxicated

to drive. W hile leaving the parking lot, Appellant fishtailed and ran into a parked

truck. The owner said the truck was fine, so Appellant continued on her way. Not

only should it have been clear to Appellant that she was too intoxicated to operate

a motor vehicle, it should have been equally apparent to the people who had to help

her and her husband to their truck and to the person whose truck she struck.

Nevertheless, the record does not reflect that Appellant reconsidered her decision

to drive or that anyone attempted to stop her from driving.

      The record also reveals that Appellant was driving approximately eighty miles

per hour on the frontage road of I-35 near Seminary Drive when she ran the red light

at the intersection of South Freeway (the northbound service road of I-35) and

Seminary Drive. It was when she ran this red light and crashed her truck into

      9
           See id. § 3.03.

                                           6
Revilla’s car, which was crossing the intersection on a green light, that Appellant

caused the deaths of Revilla and Hooten. The force of the impact caused A.H. and

the car seat he was in to be thrown from the car. Appellant also hit the Vasquezes’

car in this intersection.    Like Revilla, Vasquez was also driving through the

intersection on a green light. Vasquez’s son was a passenger in the car. The

Vasquezes were slightly injured in the collision.

      In light of the harm Appellant caused—killing two people, seriously injuring two

people, including a small child, and slightly injuring two others, and her behavior

before, during, and after the party, including her decision to drive out of the parking

lot even after hitting a parked vehicle, we hold that her sentences, a total of thirty-two

years’ confinement, are not so grossly disproportionate that they violate the Eighth

Amendment individually or collectively. W e therefore hold that the trial court did not

abuse its discretion in sentencing Appellant or in stacking the intoxication

manslaughter sentences.

      W e overrule Appellant’s sole point and affirm the trial court’s judgments.




                                                       LEE ANN DAUPHINOT
                                                       JUSTICE

PANEL: DAUPHINOT, W ALKER, and MEIER, JJ.

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


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DELIVERED: June 24, 2010




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