## NO. 12

- 17

- 00226

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THOMAS SIMPSON, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FRO M THE 349TH

JUDICIAL DISTRICT COURT

HOUSTON COUNTY, TEXA S

MEMORANDUM OPINION Thomas Simpson appeals his conviction for possession of phencyclidine. In one issue Appellant argues that his sentence was disproportionate to the crime of which he was co nvicted.
We affirm.

B ACKGROUND Appellant was charged by indictment with manufacture or delivery of between four and two hundred grams of phencyclidine. Pursuant to a plea agreement with the State, Appellant pleaded “guilty” to the lesser included offens e of possession of the same quantity of phencyclidine. The trial court deferred finding Appellant “guilty” and placed him on community supervision for eight years. Thereafter, the State moved to proceed to a final adjudication alleging that Appellant
vio lated certain terms and conditions of his community supervision. Appellant pleaded “true” to three of the allegations in the State’s motion and “not true” to the remaining allegations. Following a hearing on the matter, the trial court found that several of the allegations that Appellant violated his community supervision to be “true.” As a result, the trial court revoked Appellant’s community supervision, found Appellant “guilty” of possession of between four and2

two hundred grams of phencyclidine, and sentenced him to imprisonment for twelve years. This appeal followed.

C RUEL AND U NUSUAL P UNISHMENT In his sole issue, Appellant argues that the twelve year 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 T exas 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 court 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 t o preserve error, we conclude that the sentence about which he complains 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 f ines imposed, nor cruel and unusual punishments inflicted.” U.S. C ONST

. 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) (ci ting 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, pe t. 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 possession of between four and two hundred grams of phencyclidine, the puni shment range for which is two to twenty years. See
T EX

. H EALTH & S AFETY C ODE A NN

. §§ 481.102(8), 481.115(a), (d) (West 2017 & Supp. 2017);
T EX

. P ENAL C ODE A NN

. § 12.33(a) (West 2011). Thus, the sentence imposed by the trial court3

falls within the range s et 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 disproportionate to the crime of which he was convicted. Under the three part t est 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 o ther 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 Ci rcuit 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 addressi ng 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.).
We fi rst must determine whether Appellant’s sentence is grossly disproportionate. In so doing, we are guided by the holding in Rummel v. Estelle , 445 U.S. 263, 100 S. Ct. 1133, 63 L.
Ed. 2d 382 (1980). In Rummel , the Supreme Court addressed the proportionalit y 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 imp osed 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 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 the case at hand, the offense committed by Appellant

–– possession of between four and two hundred grams of phencyclidine

–– is more serious than the combination of offenses committed by t he appellant in Rummel , while Appellant’s twelve year sentence is less severe than the life sentence upheld by the Supreme Court in Rummel . Thus, it is reasonable to4

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 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 also Jackson , 989 S.W.2d a t 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 March 15, 2018. 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

MARCH 15 , 2018

NO. 12

- 17

- 00226

- CR

THOMAS SIMPSON, Appellant V. THE STATE OF TEXAS, Appellee

Ap peal from the 349th District Court of Houston County, Texas (Tr.Ct.No. 14CR

- 017) 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 jud gment. 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

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