Randal Walter Wright v. the State of Texas

NO. 12-21-00236-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RANDAL WALTER WRIGHT, § APPEAL FROM THE 7TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Randal Walter Wright appeals his conviction for driving while intoxicated, third or more
(DWI third or more). In one issue, he argues that his sentence is grossly disproportionate to the
offense and constitutes cruel and unusual punishment. We affirm.

BACKGROUND
On October 1, 2020, Appellant was indicted for DWI third or more, a third degree
felony. 1 The indictment contained two enhancement paragraphs, alleging that Appellant had
been previously convicted of two sequential felonies, which elevated his punishment range to
twenty five years to life in prison. 2 On October 11, 2021, Appellant waived his right to a jury
trial, pleaded “guilty” to the charged offense, and pleaded “true” to the enhancement allegations.
The trial court accepted Appellant’s plea of “guilty” and pleas of “true,” ordered a presentence
investigate report (PSI), and set the matter for a sentencing hearing before the court.

See TEX. PENAL CODE ANN. §§ 49.04 (West Supp. 2021) (driving while intoxicated), 49.09(b)(2) (West
1

Supp. 2021) (enhanced offenses and penalties).
2
See id. § 12.42 (d) (West 2019) (“... if it is shown on the trial of a felony offense...that the defendant has
previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense
that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be
punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99
years or less than 25 years.”).
On November 10, 2021, Appellant appeared before the trial court for sentencing. The
trial court reviewed the PSI and heard testimony from Appellant’s mother about Appellant’s
mental health and substance abuse struggles. In closing argument, the State pointed to the PSI,
which summarized the circumstances surrounding the offense. According to the PSI, Appellant
struck another vehicle, attempted to leave the scene, and in so doing, almost struck another
vehicle. Appellant stopped and began emptying beers from his vehicle in an apparent attempt to
conceal his alcohol consumption. When the police arrived on scene, Appellant, though clearly
intoxicated, was belligerent and argumentative with the responding officers. In argument, the
State emphasized Appellant’s nineteen previous criminal convictions, including two for felony
DWI, two for misdemeanor DWI, family violence, and assault. The State asked the trial court to
sentence Appellant to fifty years of imprisonment.
Appellant, in closing, argued for leniency based upon his extensive mental health
problems and substance abuse struggles. At the conclusion of the hearing, the trial court
sentenced Appellant to forty years imprisonment. This appeal followed.

CRUEL AND UNUSUAL PUNISHMENT
In his sole issue, Appellant argues that the forty year sentence assessed by the trial court
is grossly disproportionate to the offense and constitutes cruel and unusual punishment. The
State counters that Appellant did not preserve this issue for appellate review because he did not
object in the trial court.
In his brief, Appellant concedes he made no timely objection raising the issue of cruel
and unusual punishment in the trial court and thus, failed to preserve any such error. 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); see also TEX. R. APP. P. 33.1;
Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (“Preservation of error is a systemic
requirement that a first-level appellate court should ordinarily review on its own motion[;] . . . it
[is] incumbent upon the [c]ourt itself to take up error preservation as a threshold issue.”). But
even despite Appellant’s failure to preserve error, we conclude that the sentence about which he
complains does not constitute cruel and unusual punishment.

2
“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). Courts have repeatedly held
that punishment which falls within the limits prescribed by a valid statue 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 DWI third or more, and pleaded “true” to two enhancement allegations. The
sentence of forty years of imprisonment imposed by the trial court is within the applicable
statutory, enhanced punishment range due to Appellant’s two prior sequential felony convictions.
See TEX. PENAL CODE ANN. §§ 12.42(d), 49.04(a), 49.09(b),(2) (West 2019 and West Supp.
2021). Therefore, Appellant’s 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.
Nonetheless, Appellant urges this 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. Texas courts and the Fifth Circuit Court of Appeals have
modified the application of the Solem test in light of the United States 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, 445 U.S. 263, 100 S. Ct. 1133, 63 L.
Ed. 2d 382 (1980), in making the threshold determination of whether Appellant’s sentence is
grossly disproportionate to his crime. In Rummel, the Supreme Court addressed the
proportionality claim of an appellant who 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 Rummel, the appellant received a life
sentence because he had two prior felony convictions—one for fraudulent use of a credit card to

3
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 considering the purpose of the habitual offender
statute, the Supreme 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 this case, Appellant’s offense—DWI third or more—is no less serious than the
combination of offenses committed by the appellant in Rummel, but Appellant’s forty year
sentence is significantly less than the life sentence upheld in Rummel. Thus, it is reasonable to
conclude that if the sentence in Rummel is not constitutionally disproportionate, neither is the
sentence imposed upon Appellant. Because we do not conclude that Appellant’s sentence is
disproportionate to his crime, we need not apply the remaining elements of the Solem test. See
McGruder, 954 F.2d at 316; Jackson, 989 S.W.2d at 845-46.
Finally, Appellant asserts that rights under Article I Section 13 of the Texas Constitution
should be interpreted more broadly than rights under the Eighth Amendment. In support of this
proposition, Appellant notes that Article I Section 13 prohibits “cruel or unusual punishment”
while the Eighth Amendment prohibits “cruel and unusual punishment.” The Court of Criminal
Appeals has rejected the distinction Appellant proposes. See Cantu v. State, 939 S.W.2d 627,
639 (Tex. Crim. App. 1997); see also Lewis v. State, 448 S.W.3d 138, 147 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d). Therefore, an analysis of this issue under the Texas Constitution is
identical to an analysis under the United States Constitution. See id. As we have previously
determined that Appellant failed to preserve this issue for appeal, his sentence is within the
statutory range of punishment, and that he failed to show that his sentence was constitutionally
disproportionate, we overrule his sole issue. 3

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

3
Appellant’s brief omits numerous factual circumstances that undoubtedly contributed to the trial court’s
sentencing determination. In Appellant’s brief, the only relevant circumstances described are Appellant’s struggles
with alcohol abuse and mental health. He neglects to mention that this is his fifth DWI, his blood alcohol content
was .187 (over twice the legal limit), his belligerence to the officers who asked him to provide a blood or breath
sample, or his extensive criminal history which includes four prior DWI convictions in addition to convictions for
assault and family violence. Omissions such as these could be considered a lack of candor towards the tribunal, a
violation of the Texas Disciplinary Rules of Professional Conduct. See TEX. RULES DISCIPLINARY P. R. 3.03(a)(2),
reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West 2019).

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BRIAN HOYLE
Justice

Opinion delivered July 29, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 29, 2022

NO. 12-21-00236-CR

RANDAL WALTER WRIGHT,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1620-20)

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.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.