## NO. 12

- 17

- 00152

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WALTER REED, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM T HE 349TH

JUDICIAL DISTRICT COURT

HOUSTON COUNTY, TEXA S

MEMORANDUM OPINION Walter Reed appeals his sentence following the revocation of his community supervision. In a single issue, Appellant argues that his sentence was disproportionate to the crim e for which
he was convicted. We affirm.

B ACKGROUND Appellant was charged by indictment with theft in an amount of $1,500 or more but less than $20,000. 1 Pursuant to a plea agreement, Appellant pleaded “guilty” and the trial court sentenced Appellant t o deferred adjudication community supervision for five years. In 2014, Appellant’s deferred adjudication community supervision was revoked. He was sentenced to imprisonment for two years, but the sentence was suspended and Appellant was placed on
communi ty supervision for five years. On December 21, 2016, the State filed a motion to revoke Appellant’s community supervision and alleged he had violated certain conditions thereof. On May 1, 2017, the trial court conducted a hearing on the State’s motion. Appellant pleaded “true” to several of the allegations in the State’s motion. The trial court found all of the State’s allegations to be “true,”

1 See Act of May 9, 2011, 82d Leg., R.S., ch. 120 § 1, 2011 Tex. Sess. Law Serv. 449, 609 (West) (current version at T EX

. P ENAL C ODE A NN

. § 31.03 (West Supp. 2016) )

.2

revoked Appellant’s community supervision, and sentenced him to imprisonment for twenty months. This appeal f

ollowed.

C RUEL AND U NUSUAL P UNISHMENT In his sole issue, Appellant argues that the twenty month sentence imposed by the trial court amounts to cruel and unusual punishment. 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 , 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; Mays v. State , 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (“Preservation of error is a systemic requirement that a first

- level appellate cou rt should ordinarily review on its own motion[;] ... it [is] incumbent upon the [c]ourt itself to take up error preservation as a threshold issue[]”). But even despite Appellant’s failure to preserve error, we
conclude that the sentence about which he com plains does not constitute cruel and unusual punishment. The Eighth Amendment to the Constitution of the United States provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. C ONST

. A MEND

. 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) (citing Robinson v. California , 370 U.S. 660, 666

– 67, 82 S. Ct. 1417, 1420

– 21, 8 L. Ed. 2d 758 (1962)). 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.

– Ty ler 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 a state jail felony, the punishment range for which is between 180 days and two years. See T EX

. P ENAL C ODE A NN

. § 12.35 (West Supp.3

201 6 ). Thus, 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 contends that his sentence is “grossly disproportiona te.” Under 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), 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 T exas 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.

– Tex arkana 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 e , 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 1 135. 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 26 5

- 6 6, 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 d id not constitute cruel and unusual punishment. Id ., 445 U.S. at 28 4

- 8 5, 100 S. Ct. at 114 4

- 45

. In the case at hand, the offense committed by Appellant

— theft in an amount of $1,500 or more but less than $20,000

— is more serious than the combination of offe nses committed by the appellant in Rummel , while Appellant’s twenty month 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 unconstitutionall y disproportionate, then neither is the sentence4

assessed against Appellant in the present case. Therefore, since the threshold test has not been satisfied, we need not apply the remaining elements of the Solem test. See McGruder , 954 F.2d at 316; see al so Jackson , 989 S.W.2d at 845

– 46. 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 September 20, 2017. 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

SEPTEMBER 20 , 2017

NO. 12

- 17

- 00152

- CR

WALTER REED, Appellant V. THE STATE OF TEXAS, Appellee

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

- 005) 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 th at 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 consiste d of Worthen, C.J., Hoyle, J., and Neeley, J.