NO. 12-21-00207-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JUSTIN JAREL TILLMAN, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 3RD 

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Justin Jarel Tillman appeals his convictions for aggravated kidnapping, assault family 

violence with a previous conviction, and unauthorized use of a vehicle. In his sole issue, 

Appellant argues that his sentences are grossly disproportionate to the offenses and constitute 

cruel and unusual punishment. We affirm.

BACKGROUND

Appellant was charged by indictment with aggravated kidnapping, assault family 

violence with a previous conviction, and unauthorized use of a vehicle. He pleaded “not guilty”

to the charges, and the matter proceeded to a jury trial.

At trial, the evidence showed that Appellant and Natalie Herran met online and dated for 

five months. For the first two months, Appellant was “awesome,” funny, and charming. That 

changed one night when Appellant became upset, knocked Herran out, and shot and killed her 

dog. Afterwards, Herran was afraid to leave Appellant because he made threats against her 

disabled parents. 

Later, Appellant and Herran were evicted from their home and staying with Herran’s 

parents when Herran’s parents, Gay and Victor Crawford, asked them to take Gay’s car to go and 

buy groceries. Herran was the only one given permission to drive the car. There is conflicting
2

evidence regarding what happened next. Gay testified that she went into the kitchen at about the 

time Appellant and Herran should have returned and found the groceries on the counter, but

Appellant, Herran, her car, and her debit card were missing. In contrast, Herran testified that 

they bought the groceries but did not take them home because they had an argument at Kroger,

after which Appellant was upset, intimidating, and insisted on driving the car. Herran tried not 

to further provoke him because she “had been hit in the head so many times . . . they told [her] if 

[she was] hit in the head again, it wouldn’t be good.” Appellant seemed paranoid about 

something and drove around for a while before stopping at an Express Inn and Suites. 

The couple stayed at the hotel for three nights in three different rooms. Appellant had 

possession of Herran’s cell phone the entire time and text messaged her children from time to 

time saying she was okay, but she only stayed because he threatened her and she was too afraid 

to leave. On their last night at the hotel, Appellant left Herran alone in the room. She cleaned 

and dressed herself and started to leave but met Appellant and his brother, Aaron, as they were 

coming into the room. When Appellant saw that Herran had showered while he was out, he “lost 

it.” Herran started to explain, and then Appellant picked her up and threw her into the bathtub, 

causing her head to hit a bar. When she arose, he grabbed her, “took [her] across the counter,” 

and “was just throwing [her] around and slamming [her] around.” During the assault, Aaron was 

telling Appellant to stop assaulting Herran and leave with him. Eventually, Appellant stopped 

and left with Aaron. 

When Herran felt it was safe, she made her way to the hotel office for help. She hid 

behind a pillar while she waited for the police to arrive. Photographs of Herran taken at the 

scene and the police station show scratches on her neck and chest, bruises on her arm, leg, and 

hand, and a busted lip. Also in evidence is a judgment adjudicating Appellant guilty of assault 

family violence strangulation in Travis County.

Ultimately, the jury found Appellant “guilty” of the charges and assessed Appellant’s

punishment at imprisonment for twenty-eight years in the aggravated kidnapping case and ten 

years in the assault family violence case, and incarceration for two years in the unauthorized use 

of a vehicle case. This appeal followed.
3

CRUEL AND UNUSUAL PUNISHMENT

In Appellant’s sole issue, he argues that his sentences are grossly disproportionate to his 

offenses and constitute cruel and unusual punishment in violation of the United States and Texas 

Constitutions. We disagree.

Before a complaint may be presented for appellate review, the record must show that it 

was made to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1).

An appellant fails to preserve error by failing to object when he has the opportunity. Burt v. 

State, 396 S.W.3d 574, 577-78 (Tex. Crim. App. 2013). A sentencing issue may be preserved by 

objecting at the punishment hearing, or when the sentence is pronounced. Id. at 577. An 

appellant may raise a sentencing issue for the first time in a motion for new trial only if he did 

not have an opportunity to object during the punishment hearing. Id. at 577 n.4. 

In this case, Appellant did not object at the punishment hearing when his sentence was 

pronounced. Because Appellant had the opportunity to object to his sentence at the punishment 

hearing and failed to do so, we conclude that he failed to preserve this issue for our review. See

TEX. R. APP. P. 33.1(a)(1); Burt, 396 S.W.3d at 577-78.

Furthermore, even if Appellant preserved his issue, we could not grant him relief because 

his sentence does not constitute cruel and unusual punishment. The United States Constitution 

provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and 

unusual punishment inflicted.” U.S. CONST. amend. VIII. This provision was made applicable 

to the states by the Due Process Clause of the Fourteenth Amendment. Meadoux v. State, 325 

S.W.3d 189, 193 (Tex. Crim App. 2010). Similarly, the Texas Constitution provides that 

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual 

punishment inflicted.” TEX. CONST. art. 1, § 13. The difference between the Eighth 

Amendment’s “cruel and unusual” phrasing and the Texas Constitution’s “cruel or unusual” 

phrasing is insignificant. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).

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 falling 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 Count 1, Appellant was 
4

convicted of aggravated kidnapping, a first degree felony, the punishment range for which is

imprisonment for five to ninety-nine years or life and a possible fine of no more than $10,000.00.

See TEX. PENAL CODE ANN. §§ 20.04(a), (c), 12.32 (West 2019). Thus, the twenty-eight year

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. See Harris, 656 S.W.2d 

at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.

In Count 2, Appellant was convicted of assault family violence with a previous 

conviction, a first degree felony, the punishment range for which is imprisonment for two to ten 

years and a possible fine of no more than $10,000.00. See TEX. PENAL CODE ANN.

§§ 22.01(a)(1), (b)(2)(A) (West Supp. 2021), 12.34 (West 2019). Thus, the ten year 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. See Harris, 656 S.W.2d at 

486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.

In Count 3, Appellant was convicted of unauthorized use of a vehicle, a state jail felony, 

the punishment range for which is confinement for 180 days to two years and a possible fine of 

no more than $10,000.00. See TEX. PENAL CODE ANN. §§ 31.07 (West 2016), 12.35 (West 2019).

Thus, the two year 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. 

See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.

Nevertheless, Appellant urges us to consider the factors originally set forth in Solem v. 

Helm, 463 U.S. 277, 103 S. Ct. 3001 77 L. Ed. 2d 637 (1983). Under Solem, 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. Id., 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. 1992), 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.).
5

We are guided by the holding in Rummel v. Estelle in making the threshold 

determination of whether Appellant’s sentence is grossly disproportionate to his offense. 445 

U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered 

the proportionality claim of an appellant who 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. In that case, the appellant received a life 

sentence because he 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 265-66, 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 284-85, 100 S. Ct. at 1144-45. 

In this case, the offenses committed by Appellant—aggravated kidnapping, assault family 

violence with a previous offense, and unauthorized use of a vehicle—are more serious than the 

combination of offenses committed by the appellant in Rummel, while Appellant’s sentences are

less than the one upheld by the Supreme Court in Rummel. Thus, it is reasonable to conclude 

that if the sentence in Rummel is not constitutionally disproportionate, then neither is 

Appellant’s sentence in this case. Therefore, the threshold test has not been satisfied, and we 

need not apply the remaining elements of the Solem test. See McGruder, 954 F.2d at 316; see 

also Jackson, 989 S.W.2d at 845-46. Accordingly, we overrule Appellant’s sole issue. 

DISPOSITION

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

GREG NEELEY

Justice

Opinion delivered August 24, 2022.

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

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 24, 2022

NO. 12-21-00207-CR

JUSTIN JAREL TILLMAN,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 3rd District Court

of Anderson County, Texas (Tr.Ct.No. 3CR-19-34130)

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.

Greg Neeley, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.