## NO S . 12

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- CR 12

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- CR 12

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- 00280

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IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RODERICK CREAG, SR., APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 349T H

JUDICIAL DISTRICT COURT

HOUSTON COUNTY, TEXA S MEMORANDUM OPINION
Roderick Demetrius Cr e ag, Sr. appeals his convictions for murder, unlawful possession of a firearm by a felon, and ag gravated assault with a deadly weapon, for which he was sentenced to imprisonment for life, twenty years, and life respectively. In one issue, Appellant argues that his

sentence s are excessive and grossly disproportionate to the crime s of which he was con victed. We
affirm.

B ACKGROUND Appellant was charged by separate indictments with murder, unlawful possession of a firearm by a felon, and aggravated assault with a deadly weapon. Appellant pleaded “not guilty” to these charges, and the matters proceed ed to a jury trial, following which the jury found Appellant “guilty” as charged of each offense. Following a trial on punishment, the jury assessed Appellant’s punishments at imprisonment for life for murder, imprisonment for twenty years for unlawful po ssession of a firearm by a felon, and imprisonment for life for aggravated assault with a deadly weapon. The trial court sentenced Appellant accordingly, and this appeal followed.2 C RUEL AND U NUSUAL P UNISHMENT
In his sole issue, Appellant argues that eac h of his sentence s amounts to cruel and unusual punishment in violation of the United States and Texas constitutions. However, Appellant made no timely objection to the trial court raising the issue of cruel and unusual punishment and has, therefore, fail ed 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 T EX R. A PP

. P. 33.1. Even so , we conclude that the sentences about which Appellant complains do not constitute cruel and unusual punishment. The legislature is vested with the power to define crimes and prescribe pen alties. 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 the case at hand, Appellant was convicted o f murder, the punishment range for which is five to ninety

- nine years, or
life. See T EX

. P ENAL C ODE A NN

. §§ 12.32(a), 19.02(c) (West 2011)

. Appellant was also convicted of unlawful possession of a firearm by a felon, the punishment range for which
, consi dering enhancements, is two to t wenty years. See T EX

. P ENAL C ODE A NN

. §§ 12.3 3 (a), 12.42(a), 46.04(e) (West 2011 & Supp. 2013 )

. Further still, Appellant was convicted of aggravated assault with a deadly weapon, the punishment range for which is five to n inety

- nine years, or life. See T EX

. P ENAL C ODE A NN

. §§ 12.32(a), 22.02(b)(1) (West 2011)

. Here, each

sentence imposed by the trial court falls within the applicable range of punishment set forth by the legislature. Therefore, none of Appellant’s sentenc es is prohibited as cruel, unusual, or excessive

per se. Nonetheless, Appellant urges the 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 proportionali ty 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 jur isdictions. Solem , 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 Harmelin3

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.), cert. denied
, 506 U.S. 84 9, 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 must first determin e whether Appellant ’ s sentence s are grossly disproportionate. In so doing, we are guided by the holdin g in Rummel v. Estell , 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) . In Rummel , the Supreme 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 of obtaining $120.75 by false pretenses. Id. , 445 U.S. at 266, 100 S. Ct. at
1135 . A life sentence was imposed because the appellant also 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 266, 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 285, 100 S. Ct. at 1145

. In the instant case , the offenses committed by Appellant

–– murder , unlawful possession of a firearm by a felon, and aggravated assault with a deadly weapon

–– w ere each more serious than any of the offenses committed by the appellant in Rummel , while none of Appellant ’ s sentence s are more severe than the life sentence uph eld by the Supreme Court in Rummel . Thus, it is logical
that if the sentence in Rummel was not unconstitutionally disproportionate, then neither are any of
the sentence s assessed against Appellant in the case at hand. Therefore, since we do not find the threshold test to be satisfied, we need not apply the remaining elements of the Solem test. Appellant ’ s sole issue is overruled.

D ISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
B RIAN H OYLE Justice Opinion deliv ered June 30 , 201 4

. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30 , 2014

NO. 12

- 13

- 00278

- CR

RODERICK CREAG, SR., Appellant V. THE STAT E OF TEXAS, Appellee

Appeal from the 349th District Court of Houston County, Texas (Tr.Ct.No. 12CR

- 145) 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 Wo rthen, C.J., Griffith, J., and Hoyle, J.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30 , 2014

NO. 12

- 13

- 0027 9

- CR

RODERICK CREAG, SR., Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 349th District Court of Houston County, Texas (Tr.Ct.No. 12CR

- 14 6 ) 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, ADJ UDGED 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., Griffith, J., and Hoyle, J.

## COURT OF APPEA LS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30 , 2014

NO. 12

- 13

- 002 80

- CR

RODERICK CREAG, SR., Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 349th District Court
of Houston C ounty, Texas (Tr.Ct.No. 12CR

- 147 )

THIS CAUSE c ame 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 i n all things affirmed , and that this decision be certified to the court
below for observance.

Brian Hoyle, Justice

. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.