Opinion filed August 7, 2014




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-12-00247-CR
                                   __________

                 BRIAN EUGENE WILLIAMS, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 104th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 18037B


                      MEMORANDUM OPINION
      Appellant, Brian Eugene Williams, entered an open plea of guilty to the
offense of possession of cocaine with intent to deliver. See TEX. HEALTH &
SAFETY CODE ANN. § 481.112(c) (West 2010).            The trial court assessed his
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of thirty-five years. In a single issue on appeal,
Appellant argues that there is no evidence to support his sentence and that the trial
court’s failure to explain its reasoning for the sentence denied him due process.
We affirm.
                                 Background Facts
      Appellant was charged by indictment with one count of possession of
cocaine with intent to deliver and one count of possession of cocaine. The first
count of the indictment alleged that, on or about December 10, 2010, Appellant
knowingly possessed, with intent to deliver, a controlled substance—namely,
cocaine—in an amount of one gram or more but less than four grams. The second
count of the indictment alleged that, on or about December 10, 2010, Appellant
intentionally and knowingly possessed cocaine in an amount of one gram or more
but less than four grams. Each count of the indictment also alleged that Appellant
had previously been convicted of the offense of burglary of a habitation.
      At the open plea hearing, the State waived the second count of the
indictment based on Appellant’s agreement to plead guilty to the first count.
Appellant then pleaded “guilty” to the offense of possession of cocaine with intent
to deliver and “true” to the enhancement paragraph. The trial court subsequently
found Appellant guilty of the first count, found the enhancement paragraph to be
true, and sentenced Appellant to confinement for thirty-five years.
                                       Analysis
      In a single issue on appeal, Appellant argues that there is no evidence to
support the trial court’s infliction of “such a harsh and unreasonable punishment.”
Appellant also argues that the trial court’s failure to state its factual basis for the
punishment denied him due process.
      As a result of the enhancement finding, Appellant was convicted of the first-
degree felony of possession of cocaine with intent to deliver. The statutory range
of punishment for a first-degree felony is imprisonment for a term of life or for any
term of not more than ninety-nine years or less than five years and a fine not to
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exceed $10,000. TEX. PENAL CODE ANN. § 12.32 (West 2011). Thus, Appellant’s
35-year sentence is within the statutory range of punishment.
      A trial court’s decision regarding what sentence to impose is a “normative
process, not intrinsically factbound.” Ex parte Chavez, 213 S.W.3d 320, 323 (Tex.
Crim. App. 2006).     “Subject only to a very limited, ‘exceedingly rare,’ and
somewhat amorphous Eighth Amendment gross-disproportionality review, a
punishment that falls within the legislatively prescribed range, and that is based
upon the sentencer’s informed normative judgment, is unassailable on appeal.” Id.
at 323–24 (footnote omitted). Therefore, we do not review the sentence imposed
by the trial court under a sufficiency-of-the-evidence standard. See id.; Jarvis v.
State, 315 S.W.3d 158, 161–62 (Tex. App.—Beaumont 2010, no pet.).
      As noted in the preceding paragraph, an appellant sentenced within the
applicable punishment range may assert that his or her sentence is grossly
disproportionate to the offense and, therefore, constitutes cruel and unusual
punishment.    In light of his challenge to the sentence imposed, we review
Appellant’s sentence under this framework. In reviewing a trial court’s sentencing
determination, “a great deal of discretion is allowed the sentencing judge.”
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We will not
disturb a trial court’s decision as to punishment absent a showing of abuse of
discretion and harm. Id. As a general rule, punishment is not cruel and unusual if
it falls within the range of punishment established by the legislature. Id.; Dale v.
State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.).
      A narrow exception to the general rule is recognized when the sentence is
grossly disproportionate to the offense. Harmelin v. Michigan, 501 U.S. 957,
1004–05 (1991) (Kennedy, J., concurring); Solem v. Helm, 463 U.S. 277, 290–92
(1983); Dale, 170 S.W.3d at 799. In such cases, the sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. Solem, 463 U.S.
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at 290; Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st
Dist.] 1997, pet. ref’d).   Thus, a prohibition against grossly disproportionate
punishment survives under the Federal Constitution apart from any consideration
of whether the punishment assessed is within the statute’s range. Delacruz v.
State, 167 S.W.3d 904, 906 (Tex. App.—Texarkana 2005, no pet.). However,
“[o]utside the context of capital punishment, successful challenges to the
proportionality of particular sentences [will be] exceedingly rare.” Solem, 463
U.S. at 289–90 (alterations in original) (quoting Rummel v. Estelle, 445 U.S. 263,
272 (1980)).
      In considering a claim that a sentence is disproportionate, we first make a
threshold comparison of the gravity of an appellant’s offense against the severity
of his or her sentence. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992);
Dale, 170 S.W.3d at 799–800. We consider the gravity of the offense in light of
the harm caused or threatened to the victim or society and the culpability of the
offender. Solem, 463 U.S. at 292; Dale, 170 S.W.3d at 800. We also consider the
sentence imposed in light of the offender’s prior adjudicated and unadjudicated
offenses. Culton v. State, 95 S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d); see McGruder, 954 F.2d at 316. Only if we infer that the
sentence is grossly disproportionate to the offense will we then compare the
sentence received to sentences imposed for similar crimes in Texas and sentences
imposed for the same crime in other jurisdictions. McGruder, 954 F.2d at 316;
Dale, 170 S.W.3d at 800.
      In this cause, Appellant pleaded “guilty” to the offense of possession of
cocaine with intent to deliver. Appellant also pleaded “true” to the enhancement
allegation that he was previously convicted of the offense of burglary of a
habitation. At the punishment hearing, the trial court took judicial notice of the
contents of a “Pre-Sentence Investigation Report” (PSI) that both parties had
                                        4
previously requested. The PSI detailed Appellant’s extensive criminal history,
which included seven additional convictions for burglary of a habitation and one
conviction for burglary of a building. Appellant chose not to present evidence at
the punishment hearing, and the State offered only Appellant’s pen packet.
      Considering the nature of the charged offense and Appellant’s prior criminal
history, we conclude that his 35-year sentence, which falls within the midrange of
the applicable range of punishment, is not grossly disproportionate to the offense.
Because we have concluded that the sentence is not grossly disproportionate to the
offense, we do not compare Appellant’s sentence to sentences imposed for similar
crimes in Texas and sentences imposed for the same crime in other jurisdictions.
McGruder, 954 F.2d at 316; Dale, 170 S.W.3d at 800. Appellant’s sole issue is
overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


August 7, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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