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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00150-CR ______________________________
JASON MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 34421-B
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Jason Miller has appealed from his conviction on his open plea of guilty to the third-degree felony offense of driving while intoxicated. See Tex. Penal Code Ann. § 49.04 (Vernon 2003), § 49.09(b)(2) (Vernon Supp. 2007). The trial court sentenced Miller to five years' imprisonment. See Tex. Penal Code Ann. § 12.34 (Vernon 2003).
On appeal to this Court, Miller contends, in a single point of error, that the punishment assessed is disproportionate to his crime. Miller's motion for new trial contains a contention that the sentence was disproportionate to the offense. A motion for new trial is an appropriate way to preserve this type of claim for review. (1) See Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.).
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, Miller's sentence falls within the applicable range of two to ten years and a fine of up to $10,000.00. See Tex. Penal Code Ann. § 12.34.
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 v. Helm, 463 U.S. 277, 290 (1983); Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 846 (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 as 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); 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--sentences for similar crimes in the same jurisdiction and 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.); Lackey, 881 S.W.2d at 420-21.
Assuming, without deciding, that Miller's sentence is grossly disproportionate to the crime he committed, there is no evidence in the record from which we could compare his 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 Miller'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.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 31, 2008
Date Decided: April 11, 2008
Do Not Publish
1. The trial court did not conduct a hearing on Miller's motion for new trial, which was overruled by operation of law.
mental or physical faculties." Olson argues that the definition in those cases is confusing, based on the reasoning set out in Murphy v. State, 44 S.W.3d 656 (Tex. App.—Austin 2001, no pet.). However, in Murphy, a much more lengthy instruction was given that the court found to be confusing, misleading, and also a misstatement of the law. Id. at 664.
Even in Davy, the Dallas court recognized that the short definition did not take the defendant's evidence (of problems that might impact his ability to use his "mental or physical faculties" as well as the "average non-intoxicated person") into account and did not rest its eventual affirmance on the propriety of the definition, but instead on its review of the charge as a whole, concluding that the later instruction on intoxication only allowed the jury to convict if it found he did not have the normal use of his mental or physical faculties by reason of the introduction of the intoxicating agent.
We find this reasoning persuasive. We will not carte blanche approve the use of this definition, but in this case, there is no indication of any other reason for Olson's poor performance, and the definition is therefore not misleading. Further, as in Davy, the application paragraph allows the jury to convict (in this context) only if the jury found Olson did not have the normal use of his faculties by reason of the introduction of alcohol (as opposed to some other reason). Accordingly, in this instance, we find no error, and even if the definition were error, in light of the charge as a whole, any error was harmless.
Olson next contends the trial court erred by failing to require the State to elect which act on which it was relying for its prosecution. The indictment alleged both definitions of proving intoxication—lack of normal use of faculties and alcoholic concentration of .08 or more. Olson filed a motion to quash in which he also asked the court to require the State to elect which manner and means of committing the offense on which it was relying. Olson then reiterated his request at the close of testimony.
If a statute provides more than one way for a defendant to commit the act or omission, then on timely request the State must allege the manner and means it seeks to establish, either separately or in some disjunctive combination. Garcia v. State, 747 S.W.2d 379, 380–81 (Tex. Crim. App. 1988). In Solis v. State, 787 S.W.2d 388, 391 (Tex. Crim. App. 1990), the court held:
Because the methods of proving intoxication by alcohol are set out statutorily and do not depend on any conduct committed by a defendant, other than introduction of alcohol into the body--which was already alleged, the State need not specify in the charging instrument whether it will use loss of faculties or alcohol content to prove the offense.
Thus, the definition of intoxication need not be further alleged in the charging instrument. In this case, the State alleged both definitions of intoxication in the disjunctive. Since the State is not required to specify which definition it intends to prove, alleging both possible ways to prove intoxication was proper. State v. Winskey, 790 S.W.2d 641, 642 (Tex. Crim. App. 1990); Morris v. State, 89 S.W.3d 146, 150 (Tex. App.—Corpus Christi 2002, no pet.).
When a statute sets out more than one way that an offense can be committed, each of which is based on the same definition, is punishable in the same manner, and is not repugnant to each other, the various methods of commission are not distinct offenses, may be charged in the same indictment, and thus the State need not elect between the various theories alleged, the jury may consider all theories and return a general verdict of guilty. See Jurek v. State, 522 S.W.2d 934, 941 (Tex. Crim. App. 1975); Fitts v. State, 982 S.W.2d 175, 179 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd). The contention of error is overruled.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: April 27, 2004
Date Decided: April 28, 2004
Do Not Publish
Document Info
Docket Number： 06-07-00150-CR
Filed Date： 4/11/2008
Precedential Status： Precedential
Modified Date： 9/7/2015