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

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§

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APPEAL FROM THE 349TH 

JUDICIAL DISTRICT COURT

HOUSTON COUNTY, TEXAS

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 convicted. 

We affirm.

BACKGROUND

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 offense 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 

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

appeal followed.

CRUEL AND UNUSUAL PUNISHMENT

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 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; 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 to 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 fines imposed, nor cruel and unusual 

punishments 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) (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.–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 punishment range for which is two to twenty years. See

TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(8), 481.115(a), (d) (West 2017 & Supp. 2017); 

TEX. PENAL CODE ANN. § 12.33(a) (West 2011). Thus, the sentence imposed by the trial court 
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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 disproportionate to the crime 

of which he was convicted. 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 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.).

We first 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 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 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 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 the 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 to 
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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 at 845–46. 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 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

Appeal 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 

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.

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