Floyd P. Tarvin v. State

Opinion issued February 19, 2004 In The Court of Appeals For The First District of Texas NO. 01-02-01034-CR FLOYD P. TARVIN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 881716 MEMORANDUM OPINIONAppellant Floyd P. Tarvin pleaded not guilty to a felony driving while intoxicated (DWI) offense, having been twice previously convicted of DWI. A jury found Tarvin guilty. At the punishment hearing, the trial court found two felony enhancement paragraphs true, including Tarvin’s earlier convictions for involuntary manslaughter and for possession of a controlled substance with intent to deliver. The trial court sentenced Tarvin to 60 years’ confinement. We conclude that Tarvin failed to raise in the trial court his contention that his assessed punishment violates the cruel and unusual punishment provision of the Eighth Amendment to the United States Constitution. Moreover, the trial court’s sentence is not constitutionally infirm. We therefore affirm. Cruel and Unusual Punishment In his sole issue, Tarvin contends that his 60-year sentence for DWI violates the cruel and unusual punishment provisions of the Eighth Amendment to the United States Constitution because the sentence imposed is 120 times the maximum punishment for the unenhanced offense. See U.S. Const. amend. VIII. To preserve error for appellate review, an appellant must make a timely, specific objection, at the earliest opportunity, and obtain an adverse ruling. See Tex. R. App. P. 33.1. Tarvin did not object at the sentencing hearing to his 60-year sentence on the basis of cruel or unusual punishment, nor did he file a motion for new trial. Accordingly, he has waived this issue. See Curry v. State, 910 S.W.2d 490, 497-98 (Tex. Crim. App. 1995); Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Even if Tarvin had preserved this complaint, his contention fails. The State need not treat an accused charged under a recidivist statute in the same manner as one charged as a first-time offender. See Rummel v. Estelle, 445 U.S. 263, 284, 100 S. Ct. 1133, 1144 (1980); Smallwood v. State, 827 S.W.2d 34, 38 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). The Eighth Amendment does not require strict proportionality between the crime and sentence; rather, it forbids extreme sentences that are “grossly disproportionate” to the crime. Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 1186-87 (2003) (plurality opinion) (rejecting constitutional challenge to 25 years to life sentence imposed on shoplifter under California’s three-strikes law). In determining whether the sentence is grossly disproportionate, this court considers not only the present offense but also the defendant’s criminal history. See Smallwood, 827 S.W.2d at 38. The State presented a lengthy account of Tarvin’s criminal history during the sentencing hearing. In 1982, a jury convicted Tarvin of involuntary manslaughter for killing a pedestrian while driving intoxicated. Later that year, while out on bond, Tarvin robbed a supermarket clerk at gunpoint, and the State charged him with aggravated robbery. He was convicted of those two offenses and received seven years’ confinement. In July 1987, he was convicted of possession of a controlled substance with intent to deliver and received a 12-year sentence. That same month, he was convicted of a second DWI and received 30 days in the Harris County jail. In 1989, Tarvin was convicted of driving while his license was suspended and received 10 days in the Harris County jail. In 1994, he was convicted of a third DWI-related offense and received two years’ probation. In 2002, he was convicted of possession of marijuana and received one-year probation. Punishment assessed within the statutory limits does not violate federal and state constitutional prohibitions of cruel and unusual punishment. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Pequeno v. State, 710 S.W.2d 709, 711 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d). The trial court enhanced Tarvin’s punishment under the following statute: If it is shown on the trial of a felony offense other than a state jail felony. . . 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 he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2004). Tarvin’s 60-year sentence fell within the statutory range. Moreover, given Tarvin’s criminal history, we hold that the trial court’s punishment was not cruel and unusual, as it was not unconstitutionally disproportionate. Conclusion Tarvin waived any constitutional challenge to the excessiveness of his sentence because he failed to raise it in the trial court. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Justices Taft, Keyes, and Bland. Do not publish. Tex. R. App. P. 47.2(b).