Arthur Ray Collier v. the State of Texas

NO. 12-23-00233-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ARTHUR RAY COLLIER, § APPEAL FROM THE 349TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Appellant, Arthur Ray Collier, appeals his sentence for driving while intoxicated. In his
sole issue, he alleges that his sentence was grossly disproportionate to the crime committed. We
affirm.

BACKGROUND
Appellant pleaded “guilty” to the offense of driving while intoxicated, third or more, and
elected to have the court assess punishment. At the punishment hearing, Appellant pleaded
“true” to two enhancements. The court found only one enhancement (alleging a previous felony
conviction) to be “true,” and imposed a sentence of twenty years’ imprisonment, as well as a
$2,500.00 fine. This appeal followed.

CRUEL AND UNUSUAL PUNISHMENT
In his sole issue, Appellant argues that his sentence of twenty years’ imprisonment is
grossly disproportionate to the crime committed and amounts to cruel and unusual punishment
under the United States Constitution and the Texas Constitution. Appellant contends that his
sentence is grossly disproportionate to his conduct in committing the offense and that the trial
court should have imposed a shorter sentence.
Before a complaint may be presented for appellate review, the record must show that
Appellant raised the complaint to the trial court by a timely request, objection, or motion. TEX.
R. APP. P. 33.1(a)(1); see Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.
ref’d). A complaint that a sentence is grossly disproportionate and constitutes cruel and unusual
punishment may be preserved by objecting at the punishment hearing, or when the sentence is
pronounced. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); Kim, 283 S.W.3d at
475. An appellant may raise a sentencing issue for the first time in a motion for new trial only if
he did not have an opportunity to object when the sentence was imposed. Burt, 396 S.W.3d at
577 n.4. In this case, the record does not show that Appellant objected when the sentence was
imposed at trial, and he does not assert that he lacked an opportunity to raise such an objection.
Therefore, it appears that Appellant did not properly preserve error on this issue. However,
assuming arguendo that Appellant did preserve this complaint for appellate review, we cannot
grant him relief because his sentence does not constitute cruel and unusual punishment.
The United States Constitution provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend.
VIII. This provision was made applicable to the states by the Due Process Clause of the
Fourteenth Amendment. Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010).
Similarly, the Texas Constitution provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel or unusual punishment inflicted.” TEX. CONST. art. 1, § 13.
The difference between the Eighth Amendment’s “cruel and unusual” phrasing and the Texas
Constitution’s “cruel or unusual” phrasing is insignificant. Cantu v. State, 939 S.W.2d 627, 645
(Tex. Crim. App. 1997).
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 this case, Appellant
was convicted of driving while intoxicated for the third time, a third-degree felony with a
punishment range from two to ten years of imprisonment. TEX. PENAL CODE ANN. §§ 49.09(b),
12.34 (West 2023). Additionally, the court’s finding of “true” regarding Appellant’s previous

2
felony conviction increased the available punishment range to a minimum of two years’
imprisonment and a maximum of twenty years’ imprisonment, and a fine of no more than
$10,000.00. Id. §§ 12.42(a); 12.33 (West 2023). Thus, the twenty-year sentence imposed by the
trial court falls within the range set forth by the legislature. Therefore, the punishment is not
prohibited as cruel, unusual, or excessive per se. See Harris, 656 S.W.2d at 486; Jordan, 495
S.W.2d at 952; Davis, 905 S.W.2d at 664.
Nevertheless, Appellant urges this Court to consider the factors 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. Id., 463
U.S. at 292, 103 S. Ct. at 3011. 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 v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a
threshold determination that the sentence is grossly disproportionate to the crime before
addressing the remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.
1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v.
State, 989 S.W.2d 842, 845–46 (Tex. App.—Texarkana 1999, no pet.).
We are guided by the holding in Rummel v. Estelle in making the threshold
determination of whether Appellant’s sentence is grossly disproportionate to his crime. 445 U.S.
263, 100 S. Ct. 1133, 63 L.Ed. 2d 382 (1980). In Rummel, the Supreme Court considered 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. See id., 445 U.S. at 266, 100 S. Ct. at 1135. In that case, the appellant received a life
sentence because he 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 265–66, 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 284–85, 100 S. Ct. at 1144–45.

3
In this case, the offense Appellant committed — a third offense of driving while
intoxicated — is much more serious than the combination of offenses committed by the appellant
in Rummel, while Appellant’s sentence is significantly less severe than the life sentence upheld
by the Supreme Court in Rummel. Thus, it is reasonable to conclude that if the sentence in
Rummel is not unconstitutionally disproportionate, neither is Appellant’s sentence in this case.
Because we do not find that the threshold test is satisfied, we need not apply the remaining
elements of the Solem test. Accordingly, we overrule Appellant’s sole issue.

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

GREG NEELEY
Justice

Opinion delivered December 14, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

4
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 14, 2023

NO. 12-23-00233-CR

ARTHUR RAY COLLIER,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 349th District Court
of Anderson County, Texas (Tr.Ct.No. 349CR-19-34076)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.