## NO. 12

- 13

- 00337

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JHAMERRICK RHAISHARD MILTON, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 3 RD

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEX AS MEMORANDUM OPINION
Jhamerrick Rhaishard Milton appeals his conviction for aggravated robbery, for which he was sentenced to imprisonment for twenty

- five years. In one issue, App ellant argues his

sentence is excessive and grossly disproportionate to the crim e of which he was convicted. We
affirm.

B ACKGROUND Appellant was charged by indictment with aggravated robbery and pleaded “guilty.” The matter proceeded to a jury trial on punishment. Ultimately, the jury assessed Appellant’s punishment at imprisonment for twenty

- five years. The trial court sentenced Appellant accordingly, and this appeal followed.

C RUEL AND U NUSUAL P UNISHMENT In his sole issue, Appellant argues that his sentence 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, failed to pre serve 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
,2

910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United
S tates Constitution) ; see also T EX R. A PP

. P. 33.1

. Even so , we conclude that the sentence about
which Appellant complains does not constitute cruel and unusual punishment. The legislature is vested with the power to define crimes and prescribe penalties. 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 val id 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 of aggrav ated robbery, 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), 29.03(b) (West 2011)

. Here,

t he sentence imposed by the trial court falls within the range set forth by the legislature. Therefore, the punishment is not 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, t he 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 cr ime in other jurisdictions. 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 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.),
cert. den ied , 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 first must determin e whether Appellant ’ s sentence is grossly disproportionate. In so doing, we are guided by the holding 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 hab itual offender statute for a conviction of obtaining $120.75 by false pretenses. See id. , 445 U.S. at 266,
100 S. Ct. at 1135 . A life sentence was imposed because the appellant also had two prior felony3

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, consi dering 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 case at hand, the offense committed by Appellant

–– aggravated robbery

–– w as more serious than any of the offenses committed by the appellant in Rummel , while Appellant ’ s twenty

- five year sentence is far less severe than the life sentence upheld by the Supreme Court in
Rummel . Thus, it is reasona ble to conclude that if the sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence 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 delivered August 13, 2014

. Panel consisted of Worthe n, C.J., Griffith, J., and Hoyle, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 13 , 2014

NO. 12

- 13

- 00337

- CR

JHAMERRICK RHAISHARD MILTON,

Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 3rd District Court of Anderson County, Texas (Tr.Ct.No. 31112) 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 tha t 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., Griffith, J., and Hoyle , J

.