James Beck v. State ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00240-CR
JAMES BECK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. D35456-CR
MEMORANDUM OPINION
Appellant James Earl Beck entered a plea of guilty to the offense of Driving While
Intoxicated Third or More, and a jury assessed a sentence of ninety-nine years’
incarceration. Beck presents two issues. We will affirm.
Unqualified Counsel
In his first issue, Beck asserts that the trial court committed structural error by
appointing an attorney to represent him who did not meet the qualifications set out in
the Navarro County Indigent Defense Plan. Beck contends that his attorney was not
qualified because he had not tried at least three felony jury trials.
If an error is labeled structural, it is subject to review without requiring a
defendant to show harm. Mercier v. State, 322 S.W.3d 258, 262 (Tex. Crim. App. 2010). An
error is “structural” only if it deals with a violation of the federal constitution and has
been labeled as such by the United States Supreme Court. Lake v. State, 532 S.W.3d 408,
411 (Tex. Crim. App. 2017). One such structural error is the total deprivation of the right
to counsel at a critical stage in the prosecution. Bell v. Cone, 535 U.S. 685, 695-96, 122 S. Ct.
1843, 1851, 152 L. Ed. 2d 914 (2002); see also Williams v. State, 252 S.W.3d 353, 357 (Tex. Crim.
App. 2008) (“When the right to trial counsel has been violated, prejudice is presumed
because the trial has been rendered inherently unfair and unreliable.”). Another
structural error related to the right to counsel occurs when “counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing.” Bell, 535 U.S. at 696, 122
S.Ct. at 1851. The third situation occurs when counsel is “called upon to render assistance
under circumstances where competent counsel very likely could not.” Id. In order to be
immune from a harm analysis, the violation of the right to counsel must “pervade the
entire proceeding.” Lake, 532 S.W.3d at 414 (quoting Satterwhite v. Texas, 486 U.S. 249, 257,
108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988)). Beck’s allegation that his trial counsel was not
qualified under the Indigent Defense Plan is not one of those errors that the Supreme
Court has deemed structural. As such, Beck is entitled to relief only if he establishes that
counsel was ineffective and that he suffered prejudice. Beck specifically notes that he
makes no claim of ineffective assistance of counsel.
Beck v. State Page 2
Additionally, Beck’s argument that his counsel was not qualified under the
Indigent Defense Plan is not supported by the record. Beck was convicted of DWI after
a second or more prior DWI conviction, a third-degree felony. TEX. PENAL CODE ANN. §§
49.04(a), 49.09(b). Only first and second degree felony cases require counsel who has
tried three felony cases before a jury. Navarro County Indigent Defense Plan, Minimum
Attorney Qualifications, §§ III(A)(ii) and (iii). Beck points to no other lack of qualification
on counsel’s part.1 Beck’s first issue is overruled.
Disproportionate Sentence
Beck next argues that the ninety-nine-year sentence he received was
disproportionate to the crime of DWI considering he is seventy-one years old and an
alcoholic. Generally, a sentence within the statutory range of punishment for an offense
is not excessive, cruel, or unusual punishment. See Winchester v. State, 246 S.W.3d 386,
389 (Tex. App.—Amarillo 2008, pet. ref'd); Alvarez v. State, 63 S.W.3d 578, 580 (Tex.
App.—Fort Worth 2001, no pet.). A narrow exception to this rule is recognized where a
sentence is grossly disproportionate to the offense. See Moore v. State, 54 S.W.3d 529, 542
(Tex.App.—Fort Worth 2001, pet. ref'd); see also Harmelin v. Michigan, 501 U.S. 957, 1004–
05, 111 S. Ct. 2680, 2707, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring); Solem v. Helm,
463 U.S. 277, 290–92, 103 S. Ct. 3001, 3010–11, 77 L. Ed. 2d 637 (1983); McGruder v. Puckett,
954 F.2d 313, 316 (5th Cir.1992). However, “[o]utside the context of capital punishment,
1
The State indicates that Beck’s counsel failed to meet one qualification—that he have one year of criminal
law experience. However, the Indigent Defense Plan provides a judge the discretion to set-side such
qualifications when otherwise satisfied that an attorney is competent. Such a circumstance still does not
constitute a “structural” error.
Beck v. State Page 3
successful challenges to the proportionality of particular sentences [will be] exceedingly
rare.” Renfroe v. State, 529 S.W.3d 229, 233 (Tex. App.—Eastland 2017, pet. ref’d) (quoting
Solem, 463 U.S. at 289-90, 103 S. Ct. 3001). Additionally, punishment assessed within the
statutory limits, including punishment enhanced pursuant to a habitual-offender statute,
is not excessive, cruel, or unusual. See Ex parte Chapman, 213 S.W.3d 320, 323-24 (Tex.
Crim. App. 2006).
In conducting a proportionality analysis, we first make a threshold comparison of
the gravity of the offense against the severity of the sentence. Moore, 54 S.W.3d at 542; see
Solem, 463 U.S. at 290–91, 103 S.Ct. at 3010; McGruder, 954 F.2d at 316. “When we analyze
the gravity of the offense, we examine the harm caused or threatened to the victim or
society and the culpability of the offender.” Renfroe, 529 S.W.3d at 234. If we determine
that the sentence is grossly disproportionate to the offense, we must then compare the
sentence received to sentences for similar crimes in this jurisdiction and sentences for the
same crime in other jurisdictions. Alvarez, 63 S.W.3d at 581; see Solem, 463 U.S. at 291–92,
103 S.Ct. at 3010; McGruder, 954 F.2d at 316.
While Beck was charged with DWI Third or More, the indictment also included
four felony-enhancement paragraphs for four additional DWI’s, all of which the jury
found to be true. As a result, the punishment range for this offense was twenty-five to
ninety-nine years. TEX. PENAL CODE ANN. § 12.42(d). Beck’s sentence falls within the
statutory punishment range.
The evidence showed that Beck was convicted of seven prior DWI’s over the
course of approximately forty years. When Beck was incarcerated for his sixth DWI, he
Beck v. State Page 4
was denied parole after the parole board found that he was a danger to society. Beck’s
blood alcohol level for the present DWI was .225, and he told the police when he was
stopped that he had not been drinking. Further, Beck testified that he would continue to
drink despite the number of times he has been convicted of DWI. The jury could
reasonably have determined that Beck would be a danger to himself and others if allowed
unrestrained access to alcohol and a vehicle. We cannot say that the punishment was
grossly disproportionate to the offense. In light of this, we need not compare Beck’s
sentence to other sentences in this or other jurisdictions. We overrule Beck’s second issue.
Having overruled both of Beck’s issues, we affirm the judgment of the trial court.
REX D. DAVIS
Justice
Before Chief Justice Gray,*
Justice Davis, and
Justice Scoggins
*(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the
trial court’s judgment and sentence. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed July 25, 2018
Do not publish
[CRPM]
Beck v. State Page 5