1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-15-00140-CR

____________________

L. J. LEWIS JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 75th District Court

Liberty County, Texas

Trial Cause No. CR27288 

________________________________________________________________________

MEMORANDUM OPINION 

A jury found L.J. Lewis Jr. (Lewis or appellant) guilty of driving while 

intoxicated, third or more. See Tex. Penal Code Ann. §§ 49.04, 49.09(b) (West 

Supp. 2014). The jury heard further testimony regarding appellant‟s three previous 

felony convictions for possession of a controlled substance, namely cocaine, and 

his admission that he committed the three prior offenses. The jury found the 

enhancement allegations to be “true[,]” and the jury assessed appellant‟s 
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punishment at twenty-five years of confinement. See Tex. Penal Code Ann.

§ 12.42(d) (West Supp. 2014). We affirm the trial court‟s judgment. 

ISSUE ON APPEAL

In his sole appellate issue, Lewis contends that his sentence of twenty-five 

years under the habitual offender statute is unconstitutional under the Eighth 

Amendment of the United States Constitution and Article I, section 13 of the Texas 

Constitution. He argues that under the first of the three standards set forth in Solem 

v. Helm, 463 U.S. 277 (1983),1 Appellant‟s punishment is excessively harsh in 

light of the gravity of the offense because “[n]o one was harmed, nor any property 

damaged, by the Appellant‟s actions.” Lewis argues that “under the second [Solem] 

standard, most persons convicted of felony driving while intoxicated in Texas face 

a sentence of only two to ten years [of] incarceration[,]” and that in applying the 

third factor in Solem, “this Court will be hard-pressed to find any sentencing 

scheme from any other jurisdiction where driving while intoxicated offenders are 

routinely subject to sentences in excess of ten years.” Lewis also challenges the 

proportionality of his twenty-five year sentence.

 

1

In Solem v. Helm, 463 U.S. 277, 292 (1983), the United States Supreme 

Court enunciated three factors for evaluating the proportionality of a sentence: (1) 

the gravity of the offense and the harshness of the punishment, (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.
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ANALYSIS

Ordinarily, to preserve an error for appellate review, the complaining party 

must present a timely and specific objection to the trial court and obtain a ruling. 

Tex. R. App. P. 33.1(a). Generally, the failure to specifically object to an alleged 

disproportionate or cruel and unusual sentence in the trial court or in a post-trial 

motion waives any error for purposes of appellate review. See Rhoades v. State, 

934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144, 

151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref‟d). The record reflects that 

Lewis did not raise any objections to his sentence at the time it was pronounced or 

in a post-trial motion. Therefore, we conclude that Lewis waived any complaint 

that his sentence was unconstitutionally disproportionate or unreasonable for 

purposes of appellate review. See Tex. R. App. P. 33.1(a). Nevertheless, even if 

Lewis had properly preserved his complaints for our review, after reviewing the 

record we conclude that his argument that his sentence is disproportionate and 

unreasonable under the Eighth Amendment of the United States Constitution and 

Article I, section 13 of the Texas Constitution is without merit.2

 

2

Lewis does not argue that Article I, section 13 of the Texas Constitution 

provides any greater or different protection than the Eighth Amendment of the 

United States Constitution. Therefore, we examine Lewis‟s argument solely under 

the Eighth Amendment. See Rivera v. State, 363 S.W.3d 660, 678 n.12 (Tex. 

App.—Houston [1st Dist.] 2011, no pet.). We note that the Texas Court of 
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The legislature is vested with the power to define crimes and prescribe 

penalties. 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). Texas courts have held that punishment that 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; see also Samuel v. State, 

477 S.W.2d 611, 614-15 (Tex. Crim. App. 1972). In the case at hand, Appellant 

was convicted for a third time of driving while intoxicated, a third degree felony,

and his sentence was enhanced by his three prior felony convictions under section 

12.42(d) of the Texas Penal Code. As a habitual felony offender with at least two 

prior convictions, the range of punishment is twenty-five to ninety-nine years, or 

life. See Tex. Penal Code Ann. § 12.42(d). The jury assessed the minimum 

punishment in this case. See id. Therefore, the punishment is not prohibited as 

cruel and unusual punishment, nor is it per se excessive. See Samuel, 477 S.W.2d 

at 614-15.

 

Criminal Appeals has determined that there is no significant difference in the 

protection against cruel and unusual punishment that is afforded by the Texas 

Constitution from the United States Constitution. See Cantu v. State, 939 S.W.2d 

627, 645 (Tex. Crim. App. 1997) (en banc) (citing Anderson v. State, 932 S.W.2d 

502, 509 (Tex. Crim. App. 1996) (en banc)).
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Nevertheless, Appellant requests that we evaluate his sentence in light of the 

factors outlined in Solem. In Solem, the United States Supreme Court enunciated 

three factors for evaluating the proportionality of a sentence: (1) the gravity of the 

offense and the harshness of the punishment, (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 290 “Although a 

sentence may be within the range permitted by statute, it may nonetheless run afoul 

of the Eighth Amendment prohibition against cruel and unusual punishment.” Id.; 

Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st Dist.] 1997, 

pet. ref‟d). 

In Harmelin v. Michigan, 501 U.S. 957, 1001 (1991), the Supreme Court 

discussed Solem. Harmelin was a plurality opinion wherein five justices joined 

only part IV of Justice Scalia‟s opinion, and the Court concluded that Harmelin‟s 

claim that his sentence was unconstitutional because it was mandatory in nature 

had no support in the Eighth Amendment‟s text and history. Two of the justices 

rejected the Solem proportionality test altogether, three justices said there was only 

a narrow proportionality principle contained within the Eighth Amendment, and 

four justices concluded that Solem was correctly decided. See generally Harmelin, 

501 U.S. 957.
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In light of Harmelin, the Fifth Circuit Court of Appeals subsequently 

adopted a modified Solem test. See McGruder v. Puckett, 954 F.2d 313, 316 (5th 

Cir.), cert. denied, 506 U.S. 849 (1992). Under McGruder, the initial inquiry the 

court must make is a comparison of the gravity of the offense against the severity 

of the punishment received. See id. Only when the court finds that the sentence is 

grossly disproportionate to the offense does the reviewing court apply the final two 

prongs of the Solem test. See id.

In Lockyer v. Andrade, 538 U.S. 63 (2003), the Supreme Court examined

whether Andrade‟s sentence of two consecutive terms of 25 years to life in prison 

after his “third strike” were “contrary to, or an unreasonable application of, clearly 

established federal law as determined by this Court within the meaning of 28 

U.S.C. § 2254(d)(1).” In reaching its conclusion that the sentences must be 

overturned, the majority stated as follows:

As a threshold matter here, we first decide what constitutes “clearly 

established Federal law, as determined by the Supreme Court of the 

United States.” § 2254(d)(1). Andrade relies upon a series of 

precedents from this Court -- Rummel v. Estelle, 445 U.S. 263, 63 L. 

Ed. 2d 382, 100 S. Ct. 1133 (1980), Solem v. Helm, 463 U.S. 277, 77 

L. Ed. 2d 637, 103 S. Ct. 3001 (1983), and Harmelin v. Michigan, 501 

U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991) -- that he claims 

clearly establish a principle that his sentence is so grossly 

disproportionate that it violates the Eighth Amendment. Section 

2254(d)(1)‟s “clearly established” phrase “refers to the holdings, as 

opposed to the dicta, of this Court‟s decisions as of the time of the 

relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 
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146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000). In other words, “clearly 

established Federal law” under § 2254(d)(1) is the governing legal 

principle or principles set forth by the Supreme Court at the time the 

state court renders its decision. See id., at 405, 413; Bell v. Cone, 535 

U.S. 685, 698, 152 L. Ed. 2d 914, 122 S. Ct. 1843 (2002). In most 

situations, the task of determining what we have clearly established 

will be straightforward. The difficulty with Andrade‟s position, 

however, is that our precedents in this area have not been a model of 

clarity. See Harmelin v. Michigan, 501 U.S., at 965 (opinion of Scalia, 

J.); id., at 996, 998 (Kennedy, J., concurring in part and concurring in 

judgment). Indeed, in determining whether a particular sentence for a 

term of years can violate the Eighth Amendment, we have not 

established a clear or consistent path for courts to follow. See Ewing

v. California, ante, 538 U.S. 11, 155 L. Ed. 2d 108, 123 S. Ct. 1179, 

2003 U.S. LEXIS 1952 at -- (slip op., at 8-11).

. . . .

Through this thicket of Eighth Amendment jurisprudence, one 

governing legal principle emerges as “clearly established” under 

§ 2254(d)(1): A gross disproportionality principle is applicable to 

sentences for terms of years.

. . . .

Thus, in this case, the only relevant clearly established law amenable 

to the “contrary to” or “unreasonable application of “framework is the 

gross disproportionality principle, the precise contours of which are 

unclear, applicable only in the “exceedingly rare” and “extreme” case. 

Id., at 1001 (Kennedy, J., concurring in part and concurring in 

judgment) (internal quotation marks omitted); see also Solem v. Helm, 

supra, at 290; Rummel v. Estelle, supra, at 272.

Andrade, 538 U.S. at 71-73.

Similarly, the Texas Court of Criminal Appeals stated in Ex parte Chavez, 

213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006), that “„[s]ubject only to a very 
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limited, “exceedingly rare,” and somewhat amorphous Eighth Amendment grossdisproportionality review, a punishment which falls within the legislatively 

prescribed range, and that is based upon the sentencer‟s informed normative 

judgment, is unassailable on appeal.‟” See also Jarvis v. State, 315 S.W.3d 158, 

162 (Tex. App.—Beaumont 2010, no pet.) (citing Chavez, 213 S.W.3d at 323-24)).

In both Graham v. Florida, 560 U.S. 48, 59-60 (2010), and Miller v. 

Alabama, 567 U.S.__, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Supreme Court 

again discussed and referenced Harmelin in determining whether a sentence was 

grossly disproportionate to the defendants‟ crimes. 

In Graham, the Court explained that “[t]he Court‟s cases addressing the 

proportionality of sentences” fall within two general classifications—challenges to 

the length of the term of the sentences given all the circumstances in a particular 

case and challenges where the Court implemented the proportionality standard 

with respect to certain categorical restrictions on the death penalty. 560 U.S. at 59. 

The Court noted that its decision in Solem fit within the first category, but it 

acknowledged:

In other cases, however, it has been difficult for the challenger to 

establish a lack of proportionality. A leading case is Harmelin v.

Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), in 

which the offender was sentenced under state law to life without 

parole for possessing a large quantity of cocaine. A closely divided 

Court upheld the sentence. The controlling opinion concluded that the 
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Eighth Amendment contains a “narrow proportionality principle,” that 

“does not require strict proportionality between crime and sentence” 

but rather “forbids only extreme sentences that are „grossly 

disproportionate‟ to the crime.” Id., at 997, 1000-1001, 111 S. Ct. 

2680, 115 L. Ed. 2d 836 (Kennedy, J., concurring in part and 

concurring in judgment). . . . 

. . . .

The controlling opinion in Harmelin explained its approach for 

determining whether a sentence for a term of years is grossly 

disproportionate for a particular defendant's crime. A court must begin 

by comparing the gravity of the offense and the severity of the 

sentence. 501 U.S., at 1005, 111 S. Ct. 2680, 115 L. Ed. 2d 836

(opinion of Kennedy, J.). “[I]n the rare case in which [this] threshold 

comparison . . . leads to an inference of gross disproportionality” the 

court should then compare the defendant‟s sentence with the 

sentences received by other offenders in the same jurisdiction and 

with the sentences imposed for the same crime in other jurisdictions. 

Ibid. If this comparative analysis “validate[s] an initial judgment that 

[the] sentence is grossly disproportionate,” the sentence is cruel and 

unusual. Ibid.

560 U.S. at 59-60. The Supreme Court concluded that the Constitution prohibits 

life imprisonment without parole for juveniles convicted of crimes other than 

homicide. See id. at 82. 

In Miller, the majority of the Supreme Court held that “[b]y requiring that all 

children convicted of homicide receive lifetime incarceration without possibility of 

parole, regardless of their age and age-related characteristics and the nature of their 

crimes, the mandatory sentencing schemes before us violate this principle of 

proportionality, and so the Eighth Amendment‟s ban on cruel and unusual 
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punishment.” Miller, 132 S.Ct. at 2475. In Miller, the State argued that Harmelin

“forecloses a holding that mandatory life-without-parole sentences for juveniles 

violate the Eighth Amendment.” The majority distinguished Harmelin noting that 

“Harmelin had nothing to do with children and did not purport to apply it‟s holding 

to the sentencing of juvenile offenders.” 132 S.Ct. at 2470.

Appellant contends that “Harmelin has been called into question by the 

holdings in Graham and Miller,” and therefore, “Harmelin does not prohibit 

appellate courts from reviewing the constitutionality of a particular punishment in 

the light of concepts of proportionality set forth in Solem.” (ANT:11) We disagree 

with Appellant‟s conclusion. In issuing its opinions in Graham and Miller, the 

Court did not overrule or call into question its prior analysis in Harmelin. See 

generally Miller, 132 S.Ct. 2455; Graham, 560 U.S. 48; see also Eaglin v. State, 

No. 09-13-00504-CR, 2014 Tex. App. LEXIS 9960, at **2-3 (Tex. App.—

Beaumont Sept. 3, 2014, no pet.) (mem. op., not designated for publication) (citing 

Graham and applying the same gross disproportionality test as that stated in 

McGruder); Mathews, 918 S.W.2d at 669 (applying the same test as in McGruder

in addressing disproportionate sentence claims). Therefore, we examine the 

sentence Lewis received under the gross disproportionality test.
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The offense of driving while intoxicated, third or more, is a third degree 

felony punishable by “any term of not more than 10 years or less than 2 years” and 

“a fine not to exceed $10,000.” See Tex. Penal Code Ann. §§ 12.34 (West 2011), 

49.09(b)(2). However, appellant‟s offense was enhanced by his prior conviction 

and not based upon the DWI conduct alone. Appellant was charged as a habitual

criminal pursuant to the provisions of section 12.42(d) of the Texas Penal Code. 

Therefore, in considering whether appellant‟s sentence of twenty-five years is 

“grossly disproportionate” we consider not only the present offense but also his 

criminal history. See Rummel v. Estelle, 445 U.S. 263, 284 (1980). The defendant‟s 

sentence under a recidivist statute is “based not merely on that person‟s most 

recent offense but also on the propensities he has demonstrated over a period of 

time during which he has been convicted of and sentenced for other crimes.” Id. A 

state with a recidivist statute is not required to treat a defendant as if the offense 

was his first, and it is entitled to place upon the defendant “the onus of one who is 

simply unable to bring his conduct within the social norms prescribed by the 

criminal law of the State.” Id. “[The] primary goals [of a recidivist statute] are to 

deter repeat offenders and, at some point in the life of one who repeatedly commits 

criminal offenses serious enough to be punished as felonies, to segregate that 

person from the rest of society for an extended period of time.” Id. “[T]he point at 
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which a recidivist will be deemed to have demonstrated the necessary propensities 

and the amount of time that the recidivist will be isolated from society are matters

largely within the discretion of the punishing jurisdiction.” Id. at 285.

To the extent that Lewis argues that no one was harmed, or that no property

was damaged by his actions, it is well established that even a sentence of life 

imprisonment or of similar length is not grossly disproportionate to a felony 

offense that is committed by a habitual offender, even when the felony is not 

inherently violent in nature. See, e.g., id. (sentence of life imprisonment for offense 

of obtaining $120.75 by false pretenses not excessive); Winchester v. State, 246 

S.W.3d 386, 390-91 (Tex. App.—Amarillo 2008, pet. ref‟d) (consecutive life 

sentences for offenses of retaliation and failure to appear not grossly 

disproportionate because of defendant‟s criminal history). Here, appellant did not 

receive the maximum life sentence, but instead he was sentenced to the minimum 

sentence allowed under the habitual criminal provision, twenty-five years of 

confinement. 

Based on Lewis‟s repeated commission of the offense of driving while 

intoxicated, a dangerous offense that could have placed his life and the lives of 

others in jeopardy, along with his criminal history involving prior felony

convictions for possession of cocaine, we conclude that a sentence of twenty-five 
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years was not grossly disproportionate so as to constitute cruel and unusual 

punishment. See, e.g., Vrba v. State, 69 S.W.3d 713, 716, 724-25 (Tex. App.—

Waco 2002, no pet.) (sixty year sentence for DWI conviction was not grossly 

disproportionate and did not violate defendant‟s Eighth Amendment rights because 

of defendant‟s prior criminal history). Having overruled appellant‟s issue, we 

affirm the trial court‟s judgment.

AFFIRMED.

_________________________

 LEANNE JOHNSON

 Justice

Submitted on September 14, 2015

Opinion Delivered November 4, 2015

Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.