Affirmed; Concurring Opinion filed August 29, 2019.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-17-00674-CR

   LEMANDALE DEWAYNE BRAGGS A/K/A LEMANDALE DWAYNE
                   BRAGGS, Appellant
                                        v.

                      THE STATE OF TEXAS, Appellee

                    On Appeal from the 56th District Court
                          Galveston County, Texas
                     Trial Court Cause No. 16-CR-1964


                           CONCURRING OPINION

      Braggs was found guilty of possessing 1.18 grams of methamphetamine—a
third degree felony. His sentence was enhanced by two prior felony convictions,
resulting in 99 years’ imprisonment. I agree with the majority that this issue was
neither preserved for review at the trial court nor adequately briefed on appeal. I
write separately to emphasize the importance of error preservation and adequate
briefing when the sentence could be grossly disproportionate to the offense.
      The legislature has the power to determine the range of punishment for a
particular offense; the jury has the power to assess the punishment; the trial court
has the power to sentence the defendant. But all of these powers are subject to
constitutional limitations, and it is our duty to review the facts of the case and
determine whether such limitations have been exceeded. Under certain
circumstances, a sentence could be so excessive in relation to the offense that it
constitutes cruel and unusual punishment in violation of the United States and Texas
Constitutions. The concept of proportionality is central to the Eighth Amendment.
Graham v. Florida, 560 U.S. 48, 59 (2010). Embodied in the Constitution’s ban on
cruel and unusual punishments is the “precept of justice that punishment for crime
should be graduated and proportioned to [the] offense.” Weems v. United States, 217
U.S. 349, 367 (1910).
      The Supreme Court in Solem v. Helm set forth several factors to consider in
analyzing proportionality claims:
      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 commission of the same crime in other
         jurisdictions.
463 U.S. 277, 290–92 (1983).
      Braggs received near the maximum sentence for a nonviolent drug offense.
Based on the record before me today, I have no information or argument with which
to analyze the constitutionality of Braggs’s sentence, including sentences of
similarly situated individuals in Texas, the federal system, and in other states.
Therefore, I must concur.




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                                        /s/       Frances Bourliot
                                                  Justice


Panel consists of Justices Christopher, Bourliot and Spain. (Bourliot, J., concurring.)

Do Not Publish — TEX. R. APP. P. 47.2(b).




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