proportionality claim in Texas

2006In determining whether Appellant’s sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estelle, 445 U.S. 263 , 100 S.Ct. 1133 , 63 L.Ed.2d 382 (1980). 4 In Rummel , the Su *597 preme Court addressed 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 for obtaining $120.75 by false pretenses.

2006In determining whether Appellant’s sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estelle, 445 U.S. 263 , 100 S.Ct. 1133 , 63 L.Ed.2d 382 (1980). 4 In Rummel , the Su *597 preme Court addressed 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 for obtaining $120.75 by false pretenses.

2025The analysis appellant invokes is based on Solem, which held that “a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem, 463 U.S. at 292 .

2021The appropriate proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, 13 Section 13, of the Texas Constitution is guided by (1) “the gravity of the offense compared 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 v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d).

2015When conducting a proportionality analysis, the reviewing court must first determine whether “comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” See Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring in part and concurring in judgment).

2015Harmlein was a plurality opinion in which two justices rejected the Solem proportionality test altogether, see id. at 962 ; three justices said there was a narrow proportionality principle contained within the Eighth Amendment, see id. at 997 ; and four justices said that, in essence, Solem was correctly decided.

2006Id. 4: See Moore v. State , 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d) (adopting McGruder proportionality analysis to address Eighth Amendment proportionality claims); see also McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir.), cert. denied , 506 U.S. 849 (1992) (adopting the proportionality analysis urged by Justice Kennedy in his concurrence in Harmelin v. Michigan , 501 U.S. 957, 1004-05 , 111 S. Ct. 2680, 2706-07 (1991) (Kennedy, J., concurring) ). 5: See Jordan v. State , 495 S.W.2d 949, 952 (Tex. Crim.

2005In addressing his Eighth Amendment claim, Appellant admits that there is confusion in the law regarding whether the Eighth Amendment contains a proportionality guarantee after the United States Supreme Court decision in Harmelin v. Michigan , 501 U.S. 957 , 111 S. Ct. 2680 (1991). 2 However, we have previously chosen to follow the United States Court of Appeals for the Fifth Circuit in applying a proportionality analysis in addressing Eighth Amendment proportionality complaints. 3 Moore v. State , 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d).

2013The narrow proportionality principle in the Eighth Amendment “‘does not require strict proportionality between crime and sentence’ but rather ‘forbids only extreme sentences that are “grossly disproportionate” to the crime.’ ” Graham v. Florida, 560 U.S. 48 , 130 S.Ct. 2011, 2021 , 176 L.Ed.2d 825 (2010) (quoting the controlling opinion in Harmelin v. Michigan, 501 U.S. 957, 997 , 111 S.Ct. 2680 , 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)); see also McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir.1992) (discussing the application of the divided opin

2013The narrow proportionality principle in the Eighth Amendment “‘does not require strict proportionality between crime and sentence’ but rather ‘forbids only extreme sentences that are “grossly disproportionate” to the crime.’” Graham v. Florida, 130 S.Ct. 2011 , 2021 (2010) (quoting the controlling opinion in Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring in part and concurring in judgment)); see also McGruder v. Puckett, 954 F.2d 313 , 315–16 (5th Cir. 1992) (discussing the application of the divided opinions in Harmelin).

2022In conducting a proportionality analysis, we “must judge the severity of the sentence in light of the harm caused or threatened to the victim[s], the culpability of the offender, and the offender’s prior adjudicated and unadjudicated offenses.” Id. at 323 ; see Graham v. Florida, 560 U.S. 48, 60 (2010); Bolar v. State, 625 S.W.3d 659 , 666 (Tex. App.—Fort Worth 2021, no pet.).

2021However, “a narrow proportionality principle applicable to non-capital cases has evolved concerning a punishment scheme’s ‘categorical’ application to ‘an entire class of offenders.’” McCain v. State, 582 S.W.3d 332 , 338 (Tex. App.—Fort Worth 2018, no pet.) (quoting Graham v. Florida, 560 U.S. 48, 61, 67 (2010)).

2021See State v. Stewart, 282 S.W.3d 729, 736 (Tex. App.—Austin 2009, no pet.).

2019See State v. Stewart, 282 S.W.3d 729, 736 (Tex. App.—Austin 2009, no pet.).

2018See Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no pet.) and Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd).

2015See Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no pet.) and Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd).

2016See Ewing v. California, 538 U.S. 11, 20 , 123 S. Ct. 1179, 1185 , 155 L.

2016See Ewing v. California, 538 U.S. 11, 20 , 123 S. Ct. 1179, 1185 , 155 L.

2021The appropriate proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, 13 Section 13, of the Texas Constitution is guided by (1) “the gravity of the offense compared 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 v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d).

2019See Solem v. Helms, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d).

2018See Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no pet.) and Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd).

2015See Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no pet.) and Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd).

2015See Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.— Corpus Christi 1998, no pet.) (assuming without deciding that the defendant could assert a proportionality claim but finding that the sentence was not grossly disproportionate).

2004Sullivan v. State, 975 S.W.2d 755, 756 (Tex.App.-Corpus Christi 1998, no pet.); Fielding v. State, 719 S.W.2d 361, 363 (Tex.App.-Dallas 1986, pet. ref'd).

2012Rivera v. State, 363 S.W.3d 660 , 678 n.12 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.); see also Baldridge v. State, 77 S.W.3d 890 , 893–94 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). 3 The Eighth Amendment, which forbids cruel and unusual punishment, contains a narrow proportionality principle prohibiting a sentence from being greatly disproportionate to the crime it punishes.

2011See Baldridge , 77 S.W.3d at 893 .

2010See, e.g., Atchison v. State, 124 S.W.3d 755, 760 (Tex. App.–Austin 2003, pet. ref’d) (“Even if we were to perform a proportionality analysis, the correct question would be whether the twenty-year sentence was warranted by the crime for which appellant was convicted, and not whether it was warranted by the supervisory violations proved at the adjudication hearing.”). 2 the issue of the proportionality of the sentence was never litigated in the trial court, there is no evidence in the appellate record concerning the sentences assessed in similar cases.

2010See Smedley v. State , 99 S.W.3d 317 , 318–19 (Tex. App.—Texarkana 2003, no pet.) (applying same proportionality analysis to claims under Eighth Amendment and article I, section 13 without determining whether proportionality analysis applies to Texas provision before concluding that issue was not preserved); see also Atchison v. State , 124 S.W.3d 755, 760 (Tex. App—Austin 2003, pet. ref’d) (“Even if we were to perform a proportionality analysis [under article I, section 13] the correct question would be whether the twenty-year sentence was warranted by the crime for which appellant was convic

2010Acosta v. State, 160 S.W.3d 204, 212 (Tex. App.—Fort Worth 2005, no pet.).

2010Sentencing Davis argues that his sentence is excessive and disproportionate and that a lesser sentence is appropriate. (footnote: 2) Specifically, he contends that his taking responsibility for his crime by pleading guilty is a mitigating factor, rendering his sentence excessive, “shock[ing] the sense of humankind[,] and constitut[ing] cruel and unusual punishment by the United States and Texas Constitutions.” In conducting a proportionality analysis under the Eighth Amendment, we must first make a threshold comparison of the gravity of the offense against the severity of the sentence. (footno

2004Sullivan v. State, 975 S.W.2d 755, 756 (Tex.App.-Corpus Christi 1998, no pet.); Fielding v. State, 719 S.W.2d 361, 363 (Tex.App.-Dallas 1986, pet. ref'd).

2003Sullivan v. State , 975 S.W.2d 755, 756 (Tex. App.--Corpus Christi 1998, no pet.); Fielding v. State , 719 S.W.2d 361, 363 (Tex. App.--Dallas 1986, pet. ref'd).

2006Id. 4: See Moore v. State , 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d) (adopting McGruder proportionality analysis to address Eighth Amendment proportionality claims); see also McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir.), cert. denied , 506 U.S. 849 (1992) (adopting the proportionality analysis urged by Justice Kennedy in his concurrence in Harmelin v. Michigan , 501 U.S. 957, 1004-05 , 111 S. Ct. 2680, 2706-07 (1991) (Kennedy, J., concurring) ). 5: See Jordan v. State , 495 S.W.2d 949, 952 (Tex. Crim.

2005Ann. art. 62.10(a), (b)(1) (Vernon Supp. 2004-05). 3: See Moore v. State , 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d) (adopting McGruder proportionality analysis to address Eighth Amendment proportionality claims); see also McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir.), cert. denied , 506 U.S. 849 (1992) (adopting the proportionality analysis urged by Justice Kennedy in his concurrence in Harmelin v. Michigan , 501 U.S. 957, 1004-05 , 111 S. Ct. 2680, 2707 (1991) (Kennedy, J., concurring) ). 4: See Jordan v. State , 495 S.W.2d 949, 952 (Tex. Crim.

2022Rule of Civil Procedure 192.4 imposes a proportionality standard that requires “a case-by-case balancing of jurisprudential considerations.” K & L Auto In re Pilgrim's Pride Corp. Page 8 Crushers, 627 S.W.3d at 253 (quoting In re State Farm Lloyds, 520 S.W.3d 595, 599 (Tex. 2017) (orig. proceeding)).

2022As explained above, Rule of Civil Procedure 192.4 imposes a proportionality standard that requires “a case-by-case balancing of jurisprudential considerations.” K & L Auto Crushers, 627 S.W.3d at 253 (quoting State Farm Lloyds, 520 S.W.3d at 599 ).

2018See generally Solem v. Helm, 463 U.S. 277, 292 (1983); Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.—Texarkana 1995, pet. ref’d).

2005As this Court noted in Davis v. State , 905 S.W.2d 655 , 664–65 (Tex. App.—Texarkana 1995, pet. ref'd), Harmelin modified the Solem test.

2012See Harmelin, 501 U.S. at 994-95 , 111 S.Ct. at 2701 ; accord Wilkerson v. State, 347 S.W.3d 720, 723 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (Graham “turned strictly upon the application of the Eighth Amendment’s narrow proportionality principle, not the right to produce evidence of mitigating circumstances”). b.

2011See Harmelin , 501 U.S. at 994–95, 111 S. Ct. at 2701; accord Wilkerson v. State , No. 14-09-00025-CR, 2011 WL 1643567, at *2 (Tex. App.—Houston [14th Dist.] May 3, 2011, no pet.) ( Graham “turned strictly upon the application of the Eighth Amendment’s narrow proportionality principle, not the right to produce evidence of mitigating circumstances”). b.

2021“When faced with [] a categorical challenge, the judiciary, in determining whether the punishment at issue is grossly disproportionate to the offense, must consider: (1) whether there is a national consensus against imposing the punishment for the offense; (2) the moral culpability of the offenders at issue in light of their crimes and characteristics; (3) the severity of the punishment; and (4) whether the punishment serves legitimate penological goals.” Meadoux v. State, 325 S.W.3d 189, 194 (Tex. Crim.

2013Meadoux v. State, 325 S.W.3d 189, 194 (Tex.Crim.App.2010) (relying upon Graham v. Florida, 130 S.Ct. at 2022 & 2026).

2010See Smedley v. State, 99 S.W.3d 317 , 318–19 (Tex. App.—Texarkana 2003, no pet.) (applying same proportionality analysis to claims under Eighth Amendment and article I, section 13 without determining whether proportionality analysis applies to Texas provision before concluding that issue was not preserved); see also Atchison v. State, 124 S.W .3d 755, 760 (Tex. App—Austin 2003, pet. ref’d) (“Even if we were to perform a proportionality analysis [under article I, section 13] the correct question would be whether the twenty-year sentence was warranted by the crime for which appellant was convict

2010See Smedley v. State , 99 S.W.3d 317 , 318–19 (Tex. App.—Texarkana 2003, no pet.) (applying same proportionality analysis to claims under Eighth Amendment and article I, section 13 without determining whether proportionality analysis applies to Texas provision before concluding that issue was not preserved); see also Atchison v. State , 124 S.W.3d 755, 760 (Tex. App—Austin 2003, pet. ref’d) (“Even if we were to perform a proportionality analysis [under article I, section 13] the correct question would be whether the twenty-year sentence was warranted by the crime for which appellant was convic

1996He contends that the punishment assessed violates appellant’s constitutional rights under (1) the Eighth Amendment to the United States Constitution and (2) Article I, section thirteen of the Texas Constitution, as it is cruel and unusual being “grossly disproportionate to the crime.” The Eighth Amendment, which is applicable to the states by virtue of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 (1962), has been recognized as encompassing a narrow proportionality principle.

1996He contends that the punishment assessed violates appellant’s constitutional rights under (1) the Eighth Amendment to the United States Constitution and (2) Article I, section thirteen of the Texas Constitution, as it is cruel and unusual being “grossly disproportionate to the crime.” The Eighth Amendment, which is applicable to the states by virtue of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 (1962), has been recognized as encompassing a narrow proportionality principle.

2019Id.

2013See Alvarez, 63 S.W.3d at 581 ; see also Solem, 463 U.S. at 291-92 , 103 S. Ct. at 3010 ; McGruder, 954 F.2d at 316 .

2015And, if so, (3) Was the sentence different from sentences imposed in the same and other jurisdictions? 39 McGruder, 954 F. 2d at 316 . 40 Id. 41 Id. 42 See Winchester v. State, 246 S.W. 3d 386 , 388 – 391, (Tex. App. – Amarillo 2008, pet. ref’d.) for an excellent discussion of the evolution of disproportionality under the Solem, Harmelin and McGruder decisions, and for a complete list of the intermediate appellate courts following McGruder.

2014See e.g., Puga v. State, 916 S.W.2d 547, 548 (Tex. App.—San Antonio 1996, no pet.) (stating that the Eighth Amendment encompasses a narrow proportionality principle and a state criminal sentence must be proportionate to the crime for which the defendant has been convicted); see also Winchester v. State, 246 S.W.3d at 388-89 (stating that Texas courts recognize that a prohibition against grossly disproportionate sentences survives under the federal constitution apart from any consideration whether the punishment assessed is within the statute's range).

2012Jarvis, 315 S.W.3d at 162 .

2010See id. at 162 .