Opinion
No. 11-10-00051-CR
02-09-2012
SHARON LEE CARPENTER, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR19691
MEMORANDUM OPINION
Sharon Lee Carpenter entered an open plea of guilty to the offense of driving while intoxicated, a third-degree felony, and pleaded true to an enhancement allegation. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2011). The trial court convicted Carpenter and assessed her punishment at eighteen years confinement in the Institutional Division of the Texas Department of Criminal Justice.
Carpenter contends in two issues that (1) her punishment was cruel and unusual, considering the gravity of the offense and the near maximum punishment of eighteen years, and (2) the trial court erred by not ordering the preparation of a presentence investigation report. We affirm.
On April 26, 2008, Carpenter was pulled over after a law enforcement officer observed the car she was driving weaving from lane to lane and, at one point, almost hit the curb. At trial, an officer testified that Carpenter appeared intoxicated—she was stumbling about, slurring her speech, and strongly smelled of alcohol—and that a large, nearly empty bottle of vodka was found in her vehicle. Carpenter failed the preliminary breath test, the walk-and-turn test, and the one-legged stand test. An officer performed the horizontal gaze nystagmus test on Carpenter and observed all six clues of intoxication. Officers arrested Carpenter.
In her first issue on appeal, Carpenter argues that her punishment was cruel and unusual, considering the gravity of the offense and the near maximum punishment of eighteen years.
The charged offense of driving while intoxicated is a third-degree felony punishable by a term of imprisonment of not more than ten years or less than two years. See TEX. PENAL CODE ANN. § 12.34 (West 2011), §§ 49.04, 49.09 (West Supp. 2011). Where, as here, it is shown that an accused has previously been finally convicted of a felony other than a state jail felony, on conviction the punishment is enhanced, or increased, to a term of imprisonment of not more than twenty years or less than two years. See TEX. PENAL CODE ANN. § 12.33 (West 2011), § 12.42 (West Supp. 2011). The trial court assessed punishment at eighteen years confinement.
Carpenter acknowledges that punishment assessed within a statutory limit is generally not excessive, cruel, or unusual and that her punishment was within the statutory limit. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd). However, a prohibition against grossly disproportionate sentences survives under the Eighth Amendment of the 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.).
Texas courts have followed the Fifth Circuit's analysis for addressing Eighth Amendment proportionality complaints. Winchester v. State, 246 S.W.3d 386, 389-90 (Tex. App.—Amarillo 2008, pet. ref'd); see McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992). This analysis requires that we first conduct a threshold comparison of the gravity of the offense underlying the current conviction, as well as the offense underlying any prior conviction, against the severity of the sentence. McGruder, 954 F.2d at 316; Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.— Eastland 2001, pet. ref''d). The test is whether the sentence is grossly disproportionate to the gravity of the offenses upon which the sentences are based. Winchester, 246 S.W.3d at 390. 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 v. Helm, 463 U.S. 277, 291, 292 (1983). Only after an appellant establishes that the sentence is grossly disproportionate to the offense do we compare the sentence received with those imposed on other criminals in the same jurisdiction and those imposed for commission of the same crime in other jurisdictions. McGruder, 954 F.2d at 316.
Carpenter argues that her sentence is grossly disproportionate because Carpenter recognized she has a substance abuse problem and needs help, was prepared to enter the Texas Substance Abuse Felony Punishment treatment program, was under a doctor's care for emphysema, and had not been arrested since the date of arrest at issue. Even considering these facts, however, the record does not reflect that the punishment was grossly disproportionate. Driving while intoxicated threatens the health and safety of not only the intoxicated driver but every person unfortunate enough to share or be near the roadway of the driver. Although not classified as a violent crime, driving while intoxicated lays a heavy burden on society. Carpenter's sentence, however, is not solely based on the crime of driving while intoxicated. Carpenter was punished under the habitual offender statute; thus, her sentence was "imposed to reflect the seriousness of [her] most recent offense, not as it stands alone, but in the light of [her] prior offenses." Id. At the hearing, the State offered into evidence exhibits showing that Carpenter was previously convicted of felony possession of a controlled substance, felony driving while intoxicated, felony bail jumping, and three times of misdemeanor driving while intoxicated. In addition to the written stipulation of guilt signed by Carpenter, she also testified at the hearing to her intoxication when arrested, her past criminal history, and her drug and alcohol abuse spanning over the last twenty-five to thirty years. Despite her numerous prior arrests, Carpenter testified that she never previously sought treatment.
Considering all of the facts and circumstances, Carpenter's sentence was not grossly disproportionate. Moreover, the punishment assessed was within the statutory range. See Sections 12.42, 12.33; Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (a penalty assessed within the statutory range of punishment established by the legislature generally will not be disturbed on appeal). Even if Carpenter had established that her sentence was grossly disproportionate, our evaluation of the proportionality complaint would end here because the appellate record is void of any other sentences, from the same jurisdiction or from others, with which to compare Carpenter's sentence. The punishment was not excessive or grossly disproportionate. Carpenter's first issue is overruled.
In her second issue on appeal, Carpenter argues that the trial court erred by not ordering the preparation of a presentence investigation (PSI) report. Specifically, Carpenter contends that her sentence was improper and illegal due to the presentence investigation not being ordered or performed as mandated by Article 42.12, section 9(a) of the Texas Code of Criminal Procedure, which provides in pertinent part:
Except as provided by Subsection (g) of this section, before the imposition of sentence by a judge in a felony case . . . the judge shall direct a supervision officer to report to the judge in writing on the circumstances of the offense with which the defendant is charged.TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(a) (West Supp. 2011).
Despite the legislature's use of the word "shall," the Court of Criminal Appeals has held that a defendant may waive the preparation of a PSI report. Griffith v. State, 166 S.W.3d 261, 263 (Tex. Crim. App. 2005). The waiver need not be expressly made, but may result from inaction. Wright v. State, 873 S.W.2d 77, 82-83 (Tex. App.—Dallas 1994, pet. ref'd); see also TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (West 2005) ("The defendant in a criminal prosecution for any offense may waive any right secured to him by law . . . ."). Because Carpenter failed to object to the lack of a PSI report, she waived her right to preparation of a PSI report and failed to preserve her complaint for appellate review. Carpenter's second issue is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Kalenak, J.