Opinion
No. 06-04-00146-CR
Submitted: June 17, 2005.
Decided: June 22, 2005. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 31301-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Sharon Annette Gable Upshaw appeals from her conviction for driving while intoxicated, subsequent offense, alleging that her six-year sentence is disproportionate to the offense. The range of punishment for the charge was two to ten years' imprisonment and a $10,000.00 fine. Upshaw entered an open plea of guilty with a recommendation by the State that she be placed on community supervision. The evidence was that she had six prior community supervision sentences, with four of the six having been revoked, and that she was on community supervision for driving while intoxicated at the time she was arrested on this charge. The record also shows that Upshaw has a history of psychiatric disorders, that she was on several prescription medications for those disorders, and that she is suffering from hepatitis C. The trial court, after a review of Upshaw's prior offenses and multiple community supervision experiences, assessed her punishment at six years' imprisonment. We first look to see if the issue has been preserved for review. Upshaw did not object to the sentence at the time it was imposed on the ground it was disproportionate to the crime. There was an argument that the sentence was inappropriate, based on alleged bias by the court against counsel, but no argument involving constitutional disproportionality. The motion for new trial also does not raise such an argument, containing only the generic argument that the punishment is contrary to the law and to the evidence. To preserve a complaint for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling desired. TEX. R. APP. P. 33.1(a)(1)(A); see Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996). This Court has held that a defendant is required to raise a disproportionality objection in a timely manner. Hookie v. State, 136 S.W.3d 671, 679 (Tex.App.-Texarkana 2004, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.). That was not done in this case, and the issue has not been preserved for our review. Even if we reached the issue, 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). However, in Jackson, 989 S.W.2d at 845, we recognized that 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. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref'd). As we set out in Alberto v. State, 100 S.W.3d 528, 530 (Tex.App.-Texarkana 2003, no pet.), our proportionality analysis is guided by (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. See Solem v. Helm, 463 U.S. 277, 292 (1983). Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Alberto, 100 S.W.3d at 530. Here, the sentence imposed was in the midrange of available punishments. Even though Upshaw had a number of explanations and excuses for her behavior, it was nonetheless clear she had repeatedly committed the acts — and been placed on community supervision for them. Under those circumstances, failing to provide another community supervision opportunity for Upshaw and imposing a six-year sentence cannot be considered as grossly disproportionate to the offense. Further, there is no evidence in the record comparing this sentence with others in the same jurisdiction for this offense, or those imposed on defendants in other jurisdictions who committed a similar offense. See id. For all of those reasons, disproportionate sentencing has not been shown. We affirm the judgment.