Opinion
No. 06-06-00225-CR
Submitted: April 26, 2007.
Decided: April 27, 2007. DO NOT PUBLISH
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 33925-B.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Memorandum Opinion by Justice CARTER
MEMORANDUM OPINION
On September 18, 2006, Suzanne Marie McClain waived her right to a jury trial, pled "guilty" to operating a motor vehicle while intoxicated and while transporting a passenger under the age of fifteen years, and submitted the issue of punishment to the trial court's discretion. See TEX. PENAL CODE ANN. § 49.045 (Vernon Supp. 2006). On October 4, 2006, the trial court assessed McClain's punishment at incarceration in a state jail facility for one year. On appeal to this Court, McClain contends, in a single point of error, that the punishment assessed is disproportionate to her crime. Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973). Here, McClain's sentence falls within the applicable range of 180 days to two years. See TEX. PENAL CODE ANN. § 12.35 (Vernon 2003). That does not end the inquiry. A prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. U.S. CONST. amend. VIII; see Solem, 463 U.S. at 290; Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Dunn v. State, 997 S.W.2d 885, 892 (Tex.App.-Waco 1999, pet. ref'd); Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex.App.-Dallas 1994, pet. ref'd); see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex.Crim.App. 2006) (describing this principle involving a "very limited, `exceedingly rare,' and somewhat amorphous" review). Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the viability of the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin, but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Dunn, 997 S.W.2d at 892; Lackey, 881 S.W.2d at 420-21. In light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence, and then, only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors — (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469, 470 (Tex.App.-Texarkana 2006, no pet.); Dunn, 997 S.W.2d at 892; Lackey, 881 S.W.2d at 420-21. Assuming, without deciding, that McClain's sentence is grossly disproportionate to the crime she committed, there is no evidence in the record from which we could compare her sentence to the sentences imposed on other persons in Texas or on persons in other jurisdictions who committed a similar offense. See Latham v. State, 20 S.W.3d 63, 69 (Tex.App.-Texarkana 2000, pet. ref'd); Davis v. State, 905 S.W.2d 655, 664-65 (Tex.App.-Texarkana 1995, pet. ref'd). Without such evidence, the record before us does not support McClain's claim of demonstrable error. Cf. Jackson, 989 S.W.2d at 846 ("there is no evidence in the record reflecting sentences imposed for similar offenses on criminals in Texas or other jurisdictions by which to make a comparison"). There being no other issues before us, we affirm the trial court's judgment.
This offense is a state jail felony. See TEX. PENAL CODE ANN. § 49.045.
McClain testified during the October 4, 2006, punishment hearing that in 1998 she was convicted of felony driving while intoxicated in Indiana. See IND. CODE ANN. § 9-30-5-1 (2006) (misdemeanor offense); IND. CODE ANN. § 9-30-5-3 (2006) (felony enhancement for previous convictions). McClain was placed on probation in connection with that crime, and she successfully completed her probation. She also had prior convictions in Texas for theft of service, see TEX. PENAL CODE ANN. § 31.04 (Vernon Supp. 2006), and public intoxication, see TEX. PENAL CODE ANN. § 49.02 (Vernon 2003).