### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00708- CR

Rose Ann Davidson , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR-12 -07 35, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Rose Ann Davidson of the felony offe nse of driving while
intox icated, subsequent offe nse. Punishm ent, enhanc ed by two prior felony convictions for the 1
offe nse of dr iving while intox icated, was assessed at life imprisonment. In a sing le point of err or 2

on appea l, D avidson asser ts that the sentenc e of life imprisonment is “grossly disproportionate” to
the offe nse that she c ommitt ed and thus c onstitut es cr uel and unusua l punishment. 3
The S tate responds that Davidson failed to prese rve error on t h i s point. We ag ree
. I t is well established that to prese rve a complaint of crue l and unusual punishment, a defe ndant must

See Tex. P enal Code §§ 49.04( a), 49.09( b). 1
See id . § 12.42(d). 2
S ee U. S

. Const. amend. VI I I ; Graham v. Florida , 560 U.S. 48, 59-60 (2010); see also 3 Ewing v. Calif

ornia , 538 U.S. 11 (2003); Harmelin v. Michigan , 501 U.S. 957 (1991); Solem v. He lm , 463 U.S. 277 (1983); Rumme l v. Estelle , 445 U.S. 263 (1980).make a timely , specific objection to the trial court or raise the issue in a motion for new trial. Her e, 4
Davidson did neither. A ccor dingly , any err or has be en wa ived.
Moreove r, even if t h i s issue had been prese rved below, we could not conclude

on this rec ord that Davidson’s complaint has merit. I t is well established t h at a sentenc e of life imprisonment or of simil ar leng th is not g rossly disproportionat e to a felony offe nse that is committed by a habitual offe nder, even when the f elony is not inherently

violent in nature. Her e, 5
Davidson was co n v i ct ed of the felony offe nse of driving while intox icated, and she pleade d true

to two prior felony convictions for that offe nse. Ba sed on Davidson’s repe ated commission of 6
the offe nse of driving while intox icated, a dang erous offe nse that p l ace d her life and the lives of
others in jeopar dy , we could not conclude that a sentenc e o f life imprisonment was g rossly

See, e.g. , Rhoades v. State , 934 S.W .2d 113, 120 (Tex. Crim. App. 1996); Sample v. State , 4 405 S.W .3d 295, 303 (Tex. App.—For t Worth 2013, p et

. re f’d) ; Battle v. State , 348 S.W .3d 29, 30-31 (T ex
. App.—Houston [14t h Dist.] 2011, no pet.); Kim v. State , 283 S.W .3d 473, 475 (Tex. App.—For

t Worth 2009, pet. ref ’d); Noland v. State , 264 S .W.3d 144, 151-52 (Tex. App.—Houston [1s t Dist.] 2007, pet. re f’d) ; see also Tex. R. App. P . 33.1(a)

. See, e.g. , Rumme l , 445 U.S. at 284-85 (holding that sentenc e o f l ife imprisonment for 5 offe nse of obtaining $120.75 by false prete nses not excessive); W inchester v. State , 246 S.W .3d 386, 390-91 (Tex. App.—Amar illo 2008, pet. ref ’d) (holding that consec utive life sentenc es for offe nses of reta liation and fail u re to appea r not g rossly disproportionate beca use of defe ndant’s criminal history); Vrba v. State , 69 S.W .3d 713, 716, 724-25 (Tex. App.—Waco 2002, no pet.) (holding that 60-year sentenc e fo r DW I conviction was not g rossly disproportionate and did not violate defe ndant’s Eig hth Amendment rig hts beca use of de fenda

nt’s prior cr iminal hist ory ).
Davidson also had two prior misdemeanor convictions for the offe ns e o f d ri ving while 6 intox icated, and evidenc e of those convictions was prese nted at sentenc ing. Thus, this was actua lly her f ifth DWIconviction.
2disproportionate to the offe nse so as to constitute crue l and unusual punishment. W e o verr ule 7 Davidson’s sole point of e rror
.

We affir m the district court’s judg ment of convic tion.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose
Affir med Filed: August 1, 2014
Do Not Publish

See R ummel , 445 U.S. at 284 (“The purpose of a rec idivist statute

. . . [i s] t o deter repe at 7 offe nders and, at some point in t h e l i fe of one who repe atedly commits criminal offe nses serious enoug h to be punished as felonies, to seg reg ate that person from the rest of society for an extended period of time. This seg reg ation and its duration are based not mere ly on that person’ s most rec ent offe nse but also on the propensities he has demonstrated over a period of time during which he has been c onvicted of a

nd sentenc ed for

other c rimes.”)

.

3