Ramiro De La Cruz v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00062-CR

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RAMIRO SANCHEZ DELACRUZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30525-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Ramiro Sanchez Delacruz pled guilty to driving while intoxicated (DWI), a third degree felony. The jury assessed his punishment at ten years' incarceration and a $3,000.00 fine. Delacruz appeals, alleging that the sentence was excessive and disproportionate to the crime for which he was convicted. We affirm the judgment of the trial court.

Delacruz has not preserved his complaint for our review. To preserve a complaint for appellate review, an appellant must have presented the trial court with a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a)(1)(A). Here, when the trial court imposed Delacruz's sentence, he failed to object, preserving nothing for our review. See Hookie v. State, 136 S.W.3d 671, 679 80 (Tex. App. Texarkana 2004, no pet.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App. Texarkana 2002, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App. Texarkana 1999, no pet.). Delacruz failed to present the trial court with the contention that the ten-year sentence is punishment disproportionate to the offense committed. Not having done so, he cannot present the issue to this Court.

Even if the issue was preserved, we do not find error. Felony driving while intoxicated is classified as a third degree felony with a punishment range of imprisonment for not more than ten years or less than two years and a fine not to exceed $10,000.00. Tex. Pen. Code Ann. 12.34 (Vernon 2003). Delacruz's sentence is within the statutory range provided by law.

Traditionally, as long as the punishment assessed is within the range prescribed by the Texas 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); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). However, the United States Supreme Court's decision in Solem v. Helm, 463 U.S. 277, 292 (1983), held the Eighth Amendment prohibits sentences that are disproportionate to the crime committed. The Solem Court provided a test which required a court's proportionality analysis to be guided by objective criteria, including (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 id.

The United States Supreme Court again addressed the proportionality analysis in Harmelin v. Michigan, 501 U.S. 957 (1991). As this Court noted in Davis v. State, 905 S.W.2d 655, 664 65 (Tex. App. Texarkana 1995, pet. ref'd), Harmelin modified the Solem test. Although five of the justices in Harmelin rejected the Solem test, seven still supported an Eighth Amendment prohibition against grossly disproportionate sentences. Id. at 664.

In Jackson v. State, 989 S.W.2d 842, 845 (Tex. App. Texarkana 1999, no pet.), we clarified Solem's proportionality analysis as modified by Harmelin. We recognized that, under the United States and Texas Constitutions, (1) a prohibition against "grossly disproportionate" sentences survives independently of legislative punishment ranges, and (2) a modified Solem analysis applies. Id. at 846. Under our decision in Jackson, we first make a threshold comparison of the gravity of the offense against the severity of the sentence, and then consider whether the sentence is grossly disproportionate to the offense. Id.; see also Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring). Only if we find the sentence is grossly disproportionate to the offense should we then consider the remaining Solem factors and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Jackson, 989 S.W.2d at 846; see Harmelin, 501 U.S. at 1005; see also Alberto v. State, 100 S.W.3d 528, 530 (Tex. App. Texarkana 2003, no pet.); Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App. Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 69 (Tex. App. Texarkana 2000, pet. ref'd).

Delacruz argues that he was eligible for community supervision, having no previous felony convictions, that he had quit drinking alcoholic beverages, and that he was only twenty-seven years of age, and, therefore, the sentence is disproportionate to the offense. We disagree. Delacruz was stopped at approximately 2:00 a.m. He brought his vehicle to a complete stop in the inside northbound lane of Highway 259. His blood alcohol content registered .198 and .195 on the breathalyzer tests. He had two prior convictions for DWI offenses within the past two years. Delacruz admitted providing alcohol to an eighteen-year-old passenger who was passed out in the truck. The passenger told the police he had consumed ten alcoholic beverages that night. Given the record in this case, we cannot say the severity of the sentence was grossly disproportionate to the gravity of the crime. Moreover, there is no evidence in the record comparing the sentence with the sentences imposed against other defendants in this or other jurisdictions who committed a similar offense. See Fluellen, 71 S.W.3d at 873; Latham, 20 S.W.3d at 69; Davis, 905 S.W.2d at 664 65.

For the reasons stated, we affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: December 13, 2004

Date Decided: January 4, 2005

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