## NO. 12

- 21

- 00207

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

JUSTIN JAREL TILLMAN , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APP EAL FROM THE 3RD

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Justin Jarel Tillman ap peals his conviction s for aggravated kidnapping, assault family violence with a previous conviction, and unauthorized use of a vehicle . In his sole issue, Appellant argues that his sentenc e s are grossly disproportionate t o the offenses and constitute

crue l and unusual punishment

. We affirm.

B ACKGROUND Appellant was charged by indictment wit h aggravated kidnapping, assault family
violence with a previous conviction, and unauthorized use of a vehicle

. He pleaded “ not guilty ” to the charge s , 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 firs t two months, Appellant was “awesome,” funny, and charming. That changed one night when Appella nt became upset, knocked Herran out, and shot and killed her dog. After wards, Herran was afraid to leave Appellant because he made threats against her
disabled parents. Later, Appellant and Herran w ere 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 t he car. There is conflict ing2 evidence regard ing what happened next. Gay testified that she went into the kitche n at about the
time Appellant and Herran should have returned and found the groceries on the counter, but Appellant, Herran, her car, and her d ebit 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 d riving the car

. Herran tried not

to fu rther 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 In n and Suites. The couple stayed at the hotel for three nights in three different rooms. Appellant had possessi on 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 th reatened her and she was too afraid
to leave. On the ir 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 in to the room

. Wh en Appellant saw that Herran had showered w hile 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 co unter,”
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 m ade 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 scratc hes on her neck and chest , bruises on her arm, leg, and
hand , and a bu sted lip. A lso in evidence is a judgment adjudicating Appellant guilt y of assault family violence strangulatio n in Travis County. Ultimately, the jury found Appellant “guilty” of the charges and assessed Appellant’s punishment at imprisonment for twenty

- e ight years in the aggravated kidnapping case and ten
year s in the assault family violence case, and incarcerati on for two years in the un authorized use
of a vehicle case

. This appeal followed.3 C RUEL AND U NUSUAL P UNISHMENT In Appellant’s sole issue, h e argues that his sentence s are grossly disproportionate to his
offense s and constitute cruel and unusual punishmen t in violation of the United States and Texas
Constitutions. We disagree. Before a complaint may be presented for appellate review, the reco rd must show that it
was made to the trial court by a timely request, objection, or motion. T EX

. R. A PP

. 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. Cri m. 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 op portunity to object during the punishment hearing. Id. at 577 n.4. In this case, Appellant did not object at th e punishment hearing when his sentence was pronounced. Because Appellant had the opportunity to object to his sentence at the punishment
hea ri ng and failed to do so, we conclude that he failed to preserve t his issue for our review. See
T EX

. R. A PP

. 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 do es not constitute cruel and unusual punishment

. The United Sta t es Constitution provides that “[e]xcessive bail s hall not be required, nor excessive fin es imposed, nor cruel and unusual punishment inflicte d.” U.S. C ONST

. amend. VIII. This provision was m ad e 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, t he Texas Constitution provides that “[e]xcessive bail shall not be required, nor excessive fine s impo sed, nor cruel or unusual punishment inflicted.” T EX

. C ONST

. art. 1, § 13. The difference between the Eight h Amendment’s “cruel and unusual” phrasing and the Texas Constitution’s “cruel or unusual” ph ra sing 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 penal ties. See
Davis v. State , 905 S.W.2d 655, 664 (T ex. App

. — Texarkana 1995, pet. r ef ’ d); see also Simmons
v. State , 944 S.W.2d 11, 15 (Tex. App

. — Tyler 1996, pet. r ef ’ d). Courts have repeatedly held that punishment falling within the limits prescribed by a v alid statute is not excessive, cruel, or
unusual. Se e Harris v. State , 656 S.W.2d 481, 486 (Tex

. Crim. App. 1983); Jordan v. State , 495
S.W. 2d 949, 952 (Tex. Crim. A pp. 1973); Davis , 905 S.W.2d at 664. In Count 1, Appellant was4 convicted of aggravated ki dnapping , a first degree felony, the punishment rang e for which is imprisonment for five to ninety

- nine years or life and a possible fine of no more than $10,000.00.
See T EX

. P ENAL C ODE A NN

. § § 20.04 ( a) , ( c ) , 12. 3 2 (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 pr o hibited as cru el , unusual, or excessive per se. See Harris , 656 S.W.2d at 486; Jordan , 495 S.W.2d at 952; D avis , 905 S.W.2d at 6 64.
In Count 2 , Appellant was convicted of assault family violence with a previous
conviction , a first degree felony, the punishment range fo r which is imprisonment for two to ten
years and a possible fine of no more than $10,000.00. See T EX

. P ENAL C ODE A NN

. § § 22.01 ( a) (1) , ( b ) (2)(A) (West Supp. 2021 ), 12. 3 4 (West 2019 ). Thus, the ten year sentence imposed by the trial court falls within the ra nge set forth by the legislature. Therefore, the punishment is not prohibited as cruel, unusual, or excessive pe r 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 unauthorize d use of a vehicle , a state jail felony, the punishment range for which is confinement for 1 80 days to two years an d a possible fine of no more than $10,000.00. See T EX

. P ENAL C ODE A NN

. § § 31.07 (West 2016 ), 12. 3 5 (West 2019 ). Thus, the t wo year sentence im posed by the trial court falls within the range set forth by the legislature. Therefore, the punishment is not p rohibited 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.
Neverth el ess, Appellant urges us to consider the factors originally set forth in Solem v.
Helm , 463 U.S. 277, 103 S. Ct. 3 001 77 L. Ed. 2d 63 7 (1983). Under Solem , the proportionality of a sentence is evaluated by con s idering (1) the gravity of the offense and t he harshness o f the penalty, (2) the sentences imposed on other criminals in the same juri s diction, and (3) the

sen tences imposed for commission of the same crime in other jurisdictions. Id

. , 463 U.S. at 292,
103 S. Ct. a t 3011. The application of the So le m test has been modified by Tex a s courts and the
Fifth Circuit Court o f Appeals in light of the Sup re me Court’s d ecision in Harmelin v. Michigan , 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a thresh old
determination that the senten ce is grossly disproportionate to the crime before addressing the remaining elemen t s. See, e.g. , McGruder v. Pucke tt , 954 F.2d 313, 316 ( 5th Cir. 1992), cert. d

enied , 506 U.S. 849, 113 S. Ct. 14 6, 1 2 1 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 t he threshold determination of whether Appellant’s sentence is grossly disproportionate to his offense. 445 U.S. 263, 100 S. Ct. 1133, 63 L. E d. 2d 382 (1980)

. In Rummel , the Supreme Court considered the proportionality claim of an appellant wh o received a mandatory life sen t ence under a prior
version of the Texas habitual offender statute for a conviction of obtaining $120.7 5 by false pretense s. See id. , 445 U.S. at 266, 100 S. Ct. a t 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 g o ods or services and the other for passin g a forged check in the amount of $28.36. I d. , 445 U.S. at 265

- 66, 100 S. Ct. a t 1134

- 35. After re c ognizing the l egislative prerogative to classify offenses as felonies and, further, considering the purpose of the habitual
offender s tatute, the court det er mined that the appellant’s mandatory life sentence did not constitute cruel and unusual punishment. I d. , 445 U.S . at 284

- 85, 100 S. Ct. a t 1144

- 45. In this case, the offenses committed by Appellant

— aggravated kidnapping, assault family
violence with a pr evious offense, and unauthorized use of a vehicle

— are more serious than the combination of offenses committed by the appellant in Rummel , while Appellant’s sentence s are less than the one upheld by th e Supreme Court in Rummel

. Thus, it is reasonable to co nclude
that if the sentence in Rummel is not constitutionally disproportionate, then neither is Appellant’s sente nce in this case. Therefore, the threshold test has not been satisfied, and we need not apply the remaining elements of the Solem test. See M cGruder , 954 F.2d at 316; see also Jackson , 989 S.W.2d at 845

- 46. Accordingly , we overrule Appellant’s sole issue

.

D ISPOSITION
Ha ving overruled Appellant’s sole issue , we affirm the trial court’s judgment.

G REG N EELEY Justice
Opinion delivered Augus t 24 , 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( D O NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 24 , 2022

NO. 12

- 21

- 00207

- CR

JUSTIN JAREL T ILLMAN , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 3rd District Court
of A nderson County, Texas ( Tr.Ct.No. 3CR

- 19

- 34130 ) THIS CAUSE came to be heard on the appellate record and brief s filed herein, and the same being considered, it is t he opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED th at the judgment of the
court below be in all things affirmed , and that this decision be certified to the court below for
observance. Greg Ne el ey , Justice

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