NO. 12-12-00337-CR

 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KIRK HOLT, § APPEAL FROM THE 349TH

APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § HOUSTON COUNTY, TEXAS

 

MEMORANDUM OPINION

Kirk Holt appeals his conviction for misapplication of fiduciary property of an elderly 

individual, for which he was sentenced to imprisonment for twenty-three years. In one issue, 

Appellant argues that his sentence amounts to cruel and unusual punishment. We affirm.

BACKGROUND

Appellant was charged by indictment with misapplication of fiduciary property of an elderly 

individual and pleaded “not guilty.” The matter proceeded to trial, and a jury found Appellant 

“guilty” as charged. Following a trial on punishment, the jury assessed Appellant’s punishment at 

imprisonment for twenty-three 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 
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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

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 

misapplication of fiduciary property of an elderly individual, the punishment range for which is five 

to ninety-nine years or life. See TEX. PENAL CODE ANN. §§ 12.32(a), 32.45(b), (c)(6), (d) (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 must first 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 
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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. Id., 445 U.S. at 266, 100 S. Ct. at 1135. 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 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––misapplication of fiduciary property 

of an elderly individual––was more serious than any of the offenses committed by the appellant in 

Rummel, while Appellant’s twenty-three year sentence is no more severe than the life sentence 

upheld by the Supreme Court in Rummel. Thus, it follows 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 July 10, 2013.

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

(DO NOT PUBLISH)
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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 10, 2013

NO. 12-12-00337-CR

KIRK HOLT,

Appellant

V.

THE STATE OF TEXAS,

Appellee

 

 Appeal from the 349th Judicial District Court

 of Houston County, Texas. (Tr.Ct.No. 11CR-058)

 

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.