Dustin Umphress v. The State of Texas--Appeal from 241st District Court of Smith County

  NOS. 12-06-00191-CR

12-06-00198-CR

12-06-00199-CR

12-06-00200-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DUSTIN UMPHRESS, APPEALS FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Dustin Umphress appeals four convictions, for which he was sentenced to consecutive terms of imprisonment. In one issue, Appellant argues that his consecutive sentences amount to cruel and unusual punishment. We affirm.

Background

Appellant was charged by separate indictments with evading arrest, two counts of unauthorized use of a motor vehicle, and credit and debit card abuse. Each indictment contained two enhancement paragraphs alleging previous convictions for possession of less than one gram of a controlled substance. Appellant pleaded guilty as charged to each offense and pleaded true to each enhancement paragraph.

Thereafter, a trial on punishment was conducted. Ultimately, the trial court sentenced Appellant to imprisonment for ten years for each offense. The trial court further ordered that Appellant s sentences run consecutively. This appeal followed.

Cruel and Unusual Punishment

In his sole issue, Appellant contends that the sentences imposed on him as well as the trial court s order cumulating his sentences constituted cruel and unusual punishment under both the Texas and United States constitutions. Initially, we note that Appellant affirmatively stated with regard to each sentence that he knew of no legal reason why such sentence, the latter three of which were ordered to run consecutively, should not be imposed. Appellant has, therefore, waived the issue of cruel and unusual punishment on appeal. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); Tex. R. App. P. 33.1. However, even had Appellant not waived his sole issue, the outcome would not differ.

The legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State, 905 S.W.2d 655, 664 (Tex. App. Texarkana 1995, pet. ref d); see also Simmons v. State, 944 S.W.2d 11, 15 (Tex. App. Tyler 1996, pet. ref d). Courts have repeatedly held that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664. In the case at hand, Appellant was convicted of evading arrest, two counts of unauthorized use of a motor vehicle, and credit and debit card abuse. See Tex. Penal Code Ann. 31.07, 32.31 (b), (d), 38.04 (Vernon 2003 & Supp. 2006). The punishment range for any of these state jail felonies under the habitual offender provision of the penal code is imprisonment for between two and ten years. See Tex. Penal Code Ann. 12.33(a), 12.42(a)(1) (Vernon 2003 & Supp. 2006). Here, the punishment assessed by the trial court falls within the range set forth by the legislature. Id. Therefore, the punishment assessed is not prohibited as cruel, unusual, or excessive per se.

Nonetheless, Appellant urges the court to perform the three part test originally set forth in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the proportionality of a sentence is evaluated by considering (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. Solem, 463 U.S. at 292, 103 S. Ct. at 3011.1 The application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court s decision in Harmelin to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder, 954 F.2d at 316; see also Jackson v. State, 989 S.W.2d 842, 845 46 (Tex. App. Texarkana 1999, no pet.).

In determining whether Appellant s sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).2 In Rummel, the Supreme Court addressed the proportionality claim of an appellant who had received a mandatory life sentence under a prior version of the Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. Id., 445 U.S. at 266, 100 S. Ct. at 1135. The life sentence was imposed because the appellant also had two prior felony convictions one for fraudulent use of a credit card to obtain $80.00 worth of goods or services and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 266, 100 S. Ct. at 1134-35. After recognizing the legislative prerogative to classify offenses as felonies and, further, considering the purpose of the habitual offender statute, the court determined that the appellant s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445 U.S. at 285, 100 S. Ct. at 1145.

In the case at hand, none of the offenses committed by Appellant was any less serious than any of the offenses committed by the appellant in Rummel. Furthermore, the aggregate of Appellant s sentences is far less severe than the life sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the sentence in Rummel was not unconstitutionally disproportionate, then neither are the sentences assessed against Appellant in the case at hand, even when considered in aggregate. Therefore, since we do not find the threshold test to be satisfied, we need not apply the remaining elements of the Solem test. Appellant s sole issue is overruled.

Disposition

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered July 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 The strict application of the Solemtest has been questioned since the Supreme Court rendered its opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). See Simmons, 944 S.W.2d at 15. The Texarkana Court of Appeals discussed the applicability of Solem in Davis v. State and observed that five members of the Supreme Court in Harmelin rejected the application of the three factor test. See Simmons, 944 S.W.2d at 15(citing Davis, 905 S.W.2d at 664). However, the court in Davis nevertheless evaluated the sentence under the elements of Solem, recognizing that seven of the justices in Harmelin still supported an Eighth Amendment prohibition against grossly disproportionate sentences. See Davis, 905 S.W.2d at 664 (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992) and Lackey v. State, 881 S.W.2d 418, 421 (Tex. App. Dallas 1994, pet. ref d)).

2 Incidentally, the Fifth Circuit has referred to Rummel as a handy guide in conducting a proportionality review. See McGruder 954 F.2d at 317.