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

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APPEAL FROM THE 3RD

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

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, Appellant argues his 

sentence is excessive and grossly disproportionate to the crime of which he was convicted. We 

affirm.

BACKGROUND

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.

CRUEL AND UNUSUAL PUNISHMENT

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 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, 
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910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United 

States Constitution); see also TEX R. APP. 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 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 of aggravated robbery, the punishment range for which is five to 

ninety-nine years or life. See TEX. PENAL CODE ANN. §§ 12.32(a), 29.03(b) (West 2011). Here, 

the 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, 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. 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. denied, 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 determine 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 habitual 

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 felony 
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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 case at hand, the offense committed by Appellant––aggravated robbery––was 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 reasonable 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.

DISPOSITION

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

BRIAN HOYLE

Justice

Opinion delivered August 13, 2014.

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

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 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 Worthen, C.J., Griffith, J., and Hoyle, J.