COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

STANLEY DEON SPENCER,

Appellant,

v. THE STATE OF TEXAS,

Appellee. §

§ § § § § No. 08

- 12

- 00329

- CR

Appeal from 195 th District Court of Dallas County, Texas (TC # F

- 1250832

- N )

O P I N I O N In two points of error Stanley Deon Spencer challenges the sentence he received following his trial and conviction for possession with intent to deliver cocaine. For the reasons that follows , we affirm. FACTUAL SUMMARY Appellant was indicted for the second degree felony offense of possession with intent to deliver more than one gram and less than four grams of cocaine , a violation of T EX
. H EALTH &
S AFETY C ODE A NN . §§ 481.112(a), (c)(West 2010 )

. The indi ctment included one enhancement paragraph based upon a prior felony conviction

. Before trial, t he State also filed notice of its intent to use an additional prior felony conviction to further enhance the punishment range to 25 to 99 years or life imprisonment. See T EX .P ENAL C ODE A NN
. § 12.42(d )(West Supp. 2013)

. Additionally, the State filed notice of intent to seek a finding that the offense was committed in a2

drug

- free zon e, increasing the minimum confinement by five years

. See T EX
. H EALTH & S AFETY C ODE A NN . § 481.134(c) ( West Supp. 2013 ). Appellant entered a plea of not guilty and a j ury trial was held

. The jury f ound him guilty and also found that the offense was committed in a drug

- fr ee zone. During the punishment phase, Appellant entered pleas of not true to the enhanc emen t allegations. The jury found the enhancement allegations true and assessed punishment at life confinement in the Texas Department of Criminal Justice.
THE ARREST Dallas Police Officers Chris Nilsen and Marshall Milligan were together on patrol around 9:00 p.m. on January 4, 2012 , when they noticed Appellant riding a bicycle in the street without a helmet or an illuminated headlight which, respectively , are violations of the Dallas City Code and the Texas Traffic Code. When the Officers instructed him to stop, he turned, looked at them, yelled “ h ey, hey, hey , ” and stood up on the pedals and began pedaling more quickly . Officer Milligan observed Appellant motion with his left hand. Officer Nilsen , who wa s driving, was able to block Appellant w ith the patrol car, and Officer Milligan opened the passenger

- side door and knocked Appellant to the ground. Appellant refused to show the o fficers his hands and made furtive gestures towards his waist . He and the o fficers struggled for approximately fifteen seconds before the o fficers managed to handcuff him. Officer Jeffery Grandy was in a separate patrol vehicle directly behind Nil s en and Milligan when he saw Appellant throw a “ small package or bag right onto the street. ” Grandy stopped and recovered a plastic baggie containing fifteen off

- white “ rocks ” that appeared to be crack cocaine. All t ested positively for cocaine. During trial, the prosecution relied on the testimony of the o fficers and on a map creat ed by Dallas County Public Works to establish that3

the area where these events took place was within a drug

- free zone. See T EX .H EALTH & S AFETY C ODE A NN . § 481.134(c)

.

ENHANCEMENTS AND PRIOR CONVICTIONS During the punishment phase, the State introduced evi dence of Appellant ’s prior felony convictions, including those alleged in the enhancement. Deputy Margaret Brown, a fingerprint expert with the Dallas County Sheriff’s Department, testified that Appellant’s fingerprints matched those of the individual convicted and fingerprinted in the certified judgments and convictions in six earlier cases. Specifically, the evidence reveal ed that Appellant had been convicted for unlawful possession of cocaine in 2010 , an d possession with intent to deliver cocaine in 2003 . I n each of those cases , he was sentenced to five years in prison. I n 1990, Appellant was placed on deferred adjudication fo r unauthorized use of a vehicle, violated the conditions of the deferm ent and was sentenced to a boot

- camp program and ten years of probation. His probation for that offense was revoked in 1991 and he was sentenced to six years in prison. In 1992, he was convicted of burglarizing a vehicle and received a five

- year sentence. Appel lant was also convicted in 2000 of two misdemeanors: possession of marijuana and family

violence assault. That same year, he wa s arrested for selling cocaine and found to be in possession of a handgun. This arrest resulted in his 2003 conviction for poss ession with intent to deliver cocaine (which was used in the enhancement in the instant case), as well as a nother separate felony conviction for unlawful possession of a firearm by a felon. ANALYSIS Appellant contends that his sentence is grossly disprop ortionate to the offense such that the sentence is unconstitutional under the Eighth Amendment of the U.S. Constitution and Article I, Section 13 of the Texas Constitution. A criminal sentence must be proportionate to the4

crime for which a defendant has b een convicted. Solem v. Helm , 463 U.S. 277, 290 , 103 S.Ct. 2001, 77 L.Ed.2d 627 (1983); Lackey v. State , 881 S.W.2d 418, 421 (Tex.App.

-- Dallas 1994, pet. ref'd)

. 1 See also Baldridge v. State , 77 S.W.3d 890, 893 (Tex.App.

-- Houston [14th Dist.] 2002, pet. ref'd)(stating that Eighth Amendment has narrow proportionality principle); and Charcas v.
State , No. 08

– 07

– 00034

– CR, 2009 WL 132142 , at *2 (Tex.App.

-- El Paso Jan. 15, 2009, no pet.)( not designated for publication) (same)

. F or Appellant ’s complaints to be preserved for review, the record must demonstrate that he presented them to the trial court through a timely motion or objection. T EX .R.A PP .P . 33.1(a); Rhoades v. State , 934 S.W.2d 113, 120 (Tex.Crim.App. 1996) (noting that defendant w aived any error because he presented his argument for first time on appeal); Wynn v. State , 219 S.W.3d 54, 61 (Tex. App.

-- Hou ston [1st Dist.] 2006, pet. ref’d ) (holding a failure to raise cruel and unusual punishment objection to life imprisonment sentence at trial court level waived the argument on appeal ); and Cotton v. State , Nos. 05

- 12

- 01724

- CR, 05

- 12

- 01731

- CR, 05

- 12

- 017 32

- CR, 2014 WL 428699, at *2

- 3 (Tex.App.

-- Dalla s, Feb. 3, 2014, no pet.)(mem. o p., not designated for publication)(holding same
as to wa iver where appellant raised disproportionality issue under both the U.S. and Texas Constitutions).

1 The Texas Supreme Court transferred this appeal from the Fifth Court of Appeals to this c ourt pursuant to a docket equalization order. We will decide the case in accordance with the preceden t of the transferor court. See T EX .R.A PP .P . 41.3. The Fifth Court follows the federal Fifth Circuit Court of Appeals in holding that disproportionality under the Eighth Amendment survives the U.S. Supreme Court’s ruling in Harmelin v. Michigan , 501 U.S. 957, 965 , 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), wherein Justice Scalia wrote, in a plurality opinion: “ Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee. ” Lackey , 881 S.W.2d at 42 ( discussing and agreeing with 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). I n i nterpreting Harmelin , the Fifth Circuit concluded : “ By applying a head

- count analysis, we find that seven members of the Court supported a con tinued Eighth Amendment guaranty against disproportional sentences. . . . Thus, this much is clear: disproportionality survives [although] Solem does not. ” McGruder , 954 F.2d at 316

.5

Following the trial court’s pronouncement of s entenc ing , Appellant lodg ed no objection regarding proportionality, the Eighth Amendment, or Article I, Secti on 13. Likewise, he did not
assert them in his motion for new trial. Under these circumstances, we conclude he has not preserved these issues for our review. Moreover, as a general rule, punishment that is assessed within the statutory range for an offen se is not excessive or unconstitutionally cruel or unusual and complies w ith the objectives of the Penal Code. Jackson v. State , 68 0 S.W.2d 809, 814 (Tex.Crim.App. 1984); Harris v.
State , 656 S.W.2d 481, 486 (Tex.Crim.App. 1983); and Cotton , 2014 WL 428699, at *2

- 3. Appellant was convicted of pos session with intent to deliver one gram or more but less than four grams of cocaine, a second

- degree felony offense, which was enhanced by two previous felony convictions, making the applicable puni shment range 25 years to 99 years or life. See
T EX .H EALTH & S AFETY C ODE A NN . §§ 481.112(a), (c ); and T EX .P ENAL C ODE A NN
. § 12.42(d ). The life sentence assessed in this case was thus within the applicable statutory range of punishment. A punishment falli ng within the limits prescribed by a valid statute is not per se excessive, cruel, or unusual. Jackson , 680 S.W.2d at 814; Trevino v. State , 174 S.W.3d 925, 928 (Tex.App.

-- Corpus Christi 2005, pet. ref'd) . Accordingly, we cannot conclude the trial court abused its discretion

. See id

. We overrule Issues One and Two and affirm the judgment of the trial court.
August 6, 2014 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rivera, and Rodriguez, JJ. (Do Not Publish)