Solem test in Texas

2019“Only if [the court] infer[red] that the sentence [was] grossly disproportionate to the offense [would they] consider the remaining factors of the Solem test . . . .” Id.

2019“Only if [the court] infer[red] that the sentence [was] grossly disproportionate to the offense [would they] consider the remaining factors of the Solem test . . . .” Id.

2021McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.—Texarkana 2006, no pet.).

2013Then, “only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors—(1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.” Id. (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Dunn v. State, 997 S.W.2d 885, 892 (Tex. App.—Waco 1999, pet. ref’d); Lackey v. State, 881 S.W.2d 418 , 420–21 (Tex. App.— Dallas 1994, pet. ref’d)).

2010App. P. 38.1(h); see also Jackson v. State , 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.) (noting that even if the court wanted to consider the other Solem factors, there was no evidence in the record reflecting sentences imposed for similar offenses in Texas or other jurisdictions to which to compare the appellant’s sentence).

2010App. P. 38.1(h); see also Jackson v. State , 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.) (noting that even if the court wanted to consider the other Solem factors, there was no evidence in the record reflecting sentences imposed for similar offenses in Texas or other jurisdictions to which to compare the appellant’s sentence).

2021See Solem, 463 U.S. at 296–300, 103 S. Ct. at 3012–15; see also Harmelin, 501 U.S. at 998–1005, 111 S. Ct. at 2703–07 (Kennedy, J., concurring in part and concurring in judgment) (modifying Solem analysis and discussing precedent in threshold step-one determination). 9 300, 103 S. Ct. at 3012–15 (applying steps two and three).

2021See Solem, 463 U.S. at 296–300, 103 S. Ct. at 3012–15; see also Harmelin, 501 U.S. at 998–1005, 111 S. Ct. at 2703–07 (Kennedy, J., concurring in part and concurring in judgment) (modifying Solem analysis and discussing precedent in threshold step-one determination). 9 300, 103 S. Ct. at 3012–15 (applying steps two and three).

2020See Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.—Corpus Christi–Edinburg 1998, no pet.); see also Evans v. State, No. 13-18-00658-CR, 2019 WL 3955459 , at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 22, 2019, no pet.) (mem. op., not designated for publication) (relying on Sullivan and denying to apply Solem factors because the appellant failed to raise Solem in the trial court).

2013As this court noted in Trevino, however, “the viability and mode of application of the proportionate analysis in non-death penalty cases has been questioned since the Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957 , 111 S.Ct. 2680 , L.Ed.2d 836 (1991).” Trevino, 174 S.W.3d at 928 (citing McGruder v. Puckett, 954 F.2d 313 , 315–16 (5th Cir. 1992)); see Sullivan v. State, 975 S.W.2d 755 , 757–58 (Tex. App.—Corpus Christi 1998, no pet.). 6 Assuming arguendo the viability of the Solem factors, life imprisonment is not a grossly disproportionate sentence given the gravity of the off

2024The 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.

2024The 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.

2005Therefore, we assess the proportionality of Rodriguez' sentence by applying the Solem test in keeping with our approach in Davis v. State , 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref'd), and consistent with the Fifth Circuit's modified test as set out in McGruder .

2005Therefore, we assess the proportionality of Rodriguez' sentence by applying the Solem test in keeping with our approach in Davis v. State , 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref'd), and consistent with the Fifth Circuit's modified test as set out in McGruder .

2000Subsequent Texas cases construing Solem and Harmelin have concluded that a disproportionality analysis survives, and have applied the original Solem test or a modification thereof as articulated by the Fifth Circuit Court of Appeals in McGruder v. Puckett , 954 F.2d 313, 316 (5 th Cir.), cert. denied , 506 U.S. 849 , 113 S.Ct. 146 (1992).

2000Subsequent Texas cases construing Solem and Harmelin have concluded that a disproportionality analysis survives, and have applied the original Solem test or a modification thereof as articulated by the Fifth Circuit Court of Appeals in McGruder v. Puckett , 954 F.2d 313, 316 (5 th Cir.), cert. denied , 506 U.S. 849 , 113 S.Ct. 146 (1992).

2000Subsequent Texas cases construing Solem and Harmelin have concluded that a disproportionality analysis survives, and have applied the original Solem test or a modification thereof as articulated by the Fifth Circuit Court of Appeals in McGruder v. Puckett , 954 F.2d 313, 316 (5 th Cir.), cert. denied , 506 U.S. 849 , 113 S.Ct. 146 (1992).

2000Subsequent Texas cases construing Solem and Harmelin have concluded that a disproportionality analysis survives, and have applied the original Solem test or a modification thereof as articulated by the Fifth Circuit Court of Appeals in McGruder v. Puckett , 954 F.2d 313, 316 (5 th Cir.), cert. denied , 506 U.S. 849 , 113 S.Ct. 146 (1992).

2003"In continuing the analysis using the Solem factors, we note that there is no evidence in the appellate record of the sentences imposed on criminals in Texas or other jurisdictions who committed a similar offense; therefore we may not engage in a comparative evaluation." Id . (citing Simmons v. State , 944 S.W.2d 11, 15 (Tex. App-Tyler 1996, no pet.)).

2000Compare, e.g., Mathews v. State , 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996, pet. ref'd)(applying modification of Solem test); Puga v. State , 916 S.W.2d 547, 549-50 (Tex. App.--San Antonio 1996, no pet.)(same); Lackey v. State , 881 S.W.2d 418, 421 (Tex. App.--Dallas 1994, pet. ref'd)(same); with Simmons v. State , 944 S.W.2d 11, 14 (Tex. App.--Tyler 1996, pet. ref'd)(applying Solem test); Davis v. State , 905 S.W.2d 655, 664 (Tex. App.--Texarkana 1995, pet. ref'd).

2014Puga v. State, 916 S.W.2d at 548-49 , quoting Solem 5 v. Helm, 463 U.S. 277, 290 , 103 S.Ct. 3001, 3009 , 77 L.Ed.2d 637 (1983); see Winchester v. State, 246 S.W.3d at 389 (stating that a court first compares the gravity of the offense to the severity of the sentence and only if the court infers the sentence is grossly disproportionate to the offense should the court then consider the remaining factors in the Solem test).

2014Puga v. State, 916 S.W.2d at 548-49 , quoting Solem 5 v. Helm, 463 U.S. 277, 290 , 103 S.Ct. 3001, 3009 , 77 L.Ed.2d 637 (1983); see Winchester v. State, 246 S.W.3d at 389 (stating that a court first compares the gravity of the offense to the severity of the sentence and only if the court infers the sentence is grossly disproportionate to the offense should the court then consider the remaining factors in the Solem test).

2015See Solem, 463 U.S. at 292 , 103 S.Ct. 3001 ; Sullivan v. State, 975 S.W.2d 755 , 757– 58 (Tex.App.-Corpus Christi 1998, no pet.); Simmons v. State, 944 S.W.2d 11, 14 (Tex.App.-Tyler 1996, pet. ref'd).” ( Trevino, supra, 174 S.W.3d 928, 929 ) It appears that the issues involved in Trevino, supra, and the instant case are very similar.

2013As this court noted in Trevino, however, “the viability and mode of application of the proportionate analysis in non-death penalty cases has been questioned since the Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957 , 111 S.Ct. 2680 , L.Ed.2d 836 (1991).” Trevino, 174 S.W.3d at 928 (citing McGruder v. Puckett, 954 F.2d 313 , 315–16 (5th Cir. 1992)); see Sullivan v. State, 975 S.W.2d 755 , 757–58 (Tex. App.—Corpus Christi 1998, no pet.). 6 Assuming arguendo the viability of the Solem factors, life imprisonment is not a grossly disproportionate sentence given the gravity of the off

2015Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App. – Texarkana 2002). i. The gravity of the offense is grossly disproportionate to the harshness of the penalty Burglary of a habitation with intent to commit another felony (other than a felony theft) is a first degree offense punishable by five to ninety-nine years in prison.

2015Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App. – Texarkana 2002). i. The gravity of the offense is grossly disproportionate to the harshness of the penalty Burglary of a habitation with intent to commit another felony (other than a felony theft) is a first degree offense punishable by five to ninety-nine years in prison.

2007"Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions." Alberto , 100 S.W.3d at 530 (citing McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir.1992)).

2007"Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions." Alberto , 100 S.W.3d at 530 (citing McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir.1992)).

2013Then, “only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors—(1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.” Id. (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Dunn v. State, 997 S.W.2d 885, 892 (Tex. App.—Waco 1999, pet. ref’d); Lackey v. State, 881 S.W.2d 418 , 420–21 (Tex. App.— Dallas 1994, pet. ref’d)).

2000Compare, e.g., Mathews v. State , 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996, pet. ref'd)(applying modification of Solem test); Puga v. State , 916 S.W.2d 547, 549-50 (Tex. App.--San Antonio 1996, no pet.)(same); Lackey v. State , 881 S.W.2d 418, 421 (Tex. App.--Dallas 1994, pet. ref'd)(same); with Simmons v. State , 944 S.W.2d 11, 14 (Tex. App.--Tyler 1996, pet. ref'd)(applying Solem test); Davis v. State , 905 S.W.2d 655, 664 (Tex. App.--Texarkana 1995, pet. ref'd).

2013Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to (1) sentences for similar crimes in the same jurisdiction, and (2) sentences for the same crime in other jurisdictions. 3 Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

2013Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to (1) sentences for similar crimes in the same jurisdiction, and (2) sentences for the same crime in other jurisdictions. 3 Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

2009Cf. Guin v. State , 209 S.W.3d 682, 687-88 (Tex. App.--Texarkana 2006, no pet.); Williamson v. State , 175 S.W.3d 522, 525 (Tex. App.--Texarkana 2005, no pet.); Alberto , 100 S.W.3d at 530 .

2009Cf. Guin v. State , 209 S.W.3d 682, 687-88 (Tex. App.--Texarkana 2006, no pet.); Williamson v. State , 175 S.W.3d 522, 525 (Tex. App.--Texarkana 2005, no pet.); Alberto , 100 S.W.3d at 530 .

2013Then, “only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors—(1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.” Id. (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Dunn v. State, 997 S.W.2d 885, 892 (Tex. App.—Waco 1999, pet. ref’d); Lackey v. State, 881 S.W.2d 418 , 420–21 (Tex. App.— Dallas 1994, pet. ref’d)).

2009McGruder , 954 F.2d at 316 ; Mullins v. State , 208 S.W.3d 469, 470 (Tex. App.--Texarkana 2006, no pet.); Dunn , 997 S.W.2d at 892 ; Lackey , 881 S.W.2d at 420-21 .

2022See 501 U.S. at 965 , 985–90, 111 S. Ct. at 2686 , 2696–99 (Scalia, J., joined by Rehnquist, C.J., in an opinion); see also McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Fulton, 2020 WL 3969851 , at *3; Medina v. State, No. 12-19-00048-CR, 2020 WL 1443565 , at *2 (Tex. App.—Tyler Mar. 25, 2020, no pet.) (mem. op., not designated for publication); Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d).

2022See 501 U.S. at 965 , 985–90, 111 S. Ct. at 2686 , 2696–99 (Scalia, J., joined by Rehnquist, C.J., in an opinion); see also McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Fulton, 2020 WL 3969851 , at *3; Medina v. State, No. 12-19-00048-CR, 2020 WL 1443565 , at *2 (Tex. App.—Tyler Mar. 25, 2020, no pet.) (mem. op., not designated for publication); Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d).

2006Williamson , 175 S.W.3d at 525 ; see also McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir. 1992) (“Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test . . . .”); Dale v. State , 170 S.W.3d 797 , 799–800 (Tex. App.—Fort Worth 2005, no pet.) (same).

2006Williamson , 175 S.W.3d at 525 ; see also McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir. 1992) (“Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test . . . .”); Dale v. State , 170 S.W.3d 797 , 799–800 (Tex. App.—Fort Worth 2005, no pet.) (same).

2005Jackson , 989 S.W.2d at 846 ; see Harmelin , 501 U.S. at 1005 ; see also Alberto v. State , 100 S.W.3d 528, 530 (Tex. App.—Texarkana 2003, no pet.); Fluellen v. State , 71 S.W.3d 870, 873 (Tex. App.—Texarkana 2002, pet. ref'd); Latham v. State , 20 S.W.3d 63, 69 (Tex. App.—Texarkana 2000, pet. ref'd).

2005Jackson , 989 S.W.2d at 846 ; see Harmelin , 501 U.S. at 1005 ; see also Alberto v. State , 100 S.W.3d 528, 530 (Tex. App.—Texarkana 2003, no pet.); Fluellen v. State , 71 S.W.3d 870, 873 (Tex. App.—Texarkana 2002, pet. ref'd); Latham v. State , 20 S.W.3d 63, 69 (Tex. App.—Texarkana 2000, pet. ref'd).

2015See Harris v. State, 204 S.W.3d 19, 29 (Tex. 8 App.—Houston [14th Dist.] 2006, pet. ref’d).We overrule appellant’s second issue.

2015See Harris v. State, 204 S.W.3d 19, 29 (Tex. 8 App.—Houston [14th Dist.] 2006, pet. ref’d).We overrule appellant’s second issue.

2025See Simpson, 488 S.W.3d at 323 (concluding that appellant’s sentence was not grossly disproportionate to offense, making it unnecessary to consider sentences imposed on others).

2018See Solem, 463 U.S. at 290 ; Simpson, 488 S.W.3d at 323 ; Renfroe v. State, 529 S.W.3d 229, 234 (Tex. App.—Eastland 2017, pet. ref’d) (concluding that two-year sentence for theft offense was not grossly disproportionate); see also Bradley v. State, No. 08-15- 00035-CR, 2018 WL 1325154 , at *5 (Tex. App.—El Paso Mar. 15, 2018, no pet.) (mem. op., not designated for publication) (concluding that an enhanced sentence for theft offense was not grossly disproportionate). 8 Finally, appellant does not discuss the second and third Solem factors in his brief, see TEX.

2013“Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test . . . .” McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see Smith, 256 S.W.3d at 344 .

2013“Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test . . . .” McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see Smith, 256 S.W.3d at 344 .

2014Puga v. State, 916 S.W.2d at 548-49 , quoting Solem 5 v. Helm, 463 U.S. 277, 290 , 103 S.Ct. 3001, 3009 , 77 L.Ed.2d 637 (1983); see Winchester v. State, 246 S.W.3d at 389 (stating that a court first compares the gravity of the offense to the severity of the sentence and only if the court infers the sentence is grossly disproportionate to the offense should the court then consider the remaining factors in the Solem test).

2014Puga v. State, 916 S.W.2d at 548-49 , quoting Solem 5 v. Helm, 463 U.S. 277, 290 , 103 S.Ct. 3001, 3009 , 77 L.Ed.2d 637 (1983); see Winchester v. State, 246 S.W.3d at 389 (stating that a court first compares the gravity of the offense to the severity of the sentence and only if the court infers the sentence is grossly disproportionate to the offense should the court then consider the remaining factors in the Solem test).

2018Assuming the viability of the Solem factors, specifically the first factor that addresses the gravity of the offense relative to the harshness of the penalty, the trial court’s sentence of two years in a state jail facility is not a grossly disproportionate sentence for appellant’s offense of possession of a controlled substance—a serious drug offense.2 See Alvarez v. State, 525 S.W.3d 890, 893 (Tex. App.—Eastland 2017, pet. ref’d); Sneed, 406 S.W.3d at 643 ; Francis v. State, 877 S.W.2d 441 , 443–44 (Tex. App.— Austin 1994, pet. ref’d).

2000Id; see Francis v. State , 877 S.W.2d 441, 444 (Tex. App.--Austin 1994, pet. ref'd) (assuming the Texas Constitution requires proportionality and applying the Solem test).

2015See id.

2015See id.

2025Ajisebutu v. State, 236 S.W.3d 309, 315 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

2025Ajisebutu v. State, 236 S.W.3d 309, 315 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

2015Under the Solem 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.” Contreras, 369 S.W.3d at 690 (citing Solem v. Helm, 463 U.S. 277, 292 (1983)).

2015Under the Solem 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.” Contreras, 369 S.W.3d at 690 (citing Solem v. Helm, 463 U.S. 277, 292 (1983)).