NO. 12-15-00233-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JAMES EDWARD MULLINNIX, III, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 349TH 

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

James Edward Mullinnix, III appeals his conviction for aggravated robbery with a deadly 

weapon, for which he was sentenced to imprisonment for seventy years. In two issues, Appellant 

argues the evidence is insufficient to support the jury’s verdict and his sentence amounted to 

cruel and unusual punishment. We affirm.

BACKGROUND

Appellant was charged by indictment with aggravated robbery with a deadly weapon and 

pleaded “not guilty.” The matter proceeded to a jury trial. The jury found Appellant “guilty” as 

charged and assessed his punishment at imprisonment for seventy years. The trial court 

sentenced Appellant accordingly, and this appeal followed.

EVIDENTIARY SUFFICIENCY

In his first issue, Appellant argues that the evidence is insufficient to support his 

conviction for aggravated robbery. 
2

Standard of Review

The Jackson v. Virginia1legal sufficiency standard is the only standard that a reviewing 

court should apply in determining whether the evidence is sufficient to support each element of a 

criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. 

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional 

minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a 

criminal conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo 

v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a 

legal sufficiency challenge is whether any rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 

2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is 

examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 

2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in 

rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 

S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).

The sufficiency of the evidence is measured against the offense as defined by a 

hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997). Such a charge would include one that “accurately sets out the law, is authorized by the 

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict 

the State’s theories of liability, and adequately describes the particular offense for which the 

defendant is tried.” Id.

In order to demonstrate that Appellant was guilty of aggravated robbery, the State was 

required to prove beyond a reasonable doubt that Appellant (1) during the course of committing 

a theft,2(2) and with intent to obtain or maintain control of the property, (3) intentionally or 

knowingly threatened or placed another in fear of imminent bodily injury or death, and (4) used 

or exhibited a deadly weapon. See TEX. PENAL CODE ANN. §§ 29.02(a), 29.03(a)(2), 31.03 

(West 2011 & Supp. 2015).

 

1 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979). 

2 A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the 

property. See TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2015). Appropriation of property is unlawful if it is 

without the owner’s effective consent. Id. at §31.03(b) (West Supp. 2015).
3

Analysis

In the instant case, David Gross, the victim, testified at trial. Gross testified that he 

discovered Appellant and two other men inside a house he owned and that one of the men told 

Gross they were “scrapping.” Gross further testified that the men had loaded property of his into 

their truck. According to Gross, he followed the men to their truck and attempted to stop them

from leaving. Gross stated that when he reached into the truck to grab the keys, Appellant 

brandished a pistol, pointed it in Gross’s face, and twice pulled the trigger.3 Gross further stated 

that, at this moment, he was afraid he going to die. Gross testified that Appellant and the other 

two men fled the scene and he followed them in his vehicle. Gross further testified that after

Appellant and one of the other men were apprehended by police, he was able to identify some of 

his property found in Appellant’s possession––a pocket watch and a fishing lure.

We have reviewed the record in the light most favorable to the jury’s verdict. Based on 

that review, with due consideration given to Gross’s testimony, we conclude that the jury 

reasonably could have found beyond a reasonable doubt that Appellant committed aggravated 

robbery and, in the course thereof, exhibited a firearm. Therefore, we hold that the evidence is 

legally sufficient to support the jury’s verdict. Appellant’s first issue is overruled.

CRUEL AND UNUSUAL PUNISHMENT

In his second issue, Appellant argues that his seventy year sentence 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.

 

3 A firearm is per se a deadly weapon. Young v. State, 806 S.W.2d 340, 343 n.1 (Tex. App.–Austin 1991, 

pet. ref’d).
4

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 aggravated robbery with a deadly 

weapon, the punishment range for which is five to ninety-nine years, or life. See TEX. PENAL 

CODE ANN. §§ 12.32(a), 29.03(b) (West 2011). 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 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. 

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. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L.
5

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 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––aggravated robbery with a 

deadly weapon––is far more serious than the combination of offenses committed by the appellant 

in Rummel, while Appellant’s sentence is no more 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 unconstitutionally disproportionate, then neither are the sentences 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 second issue is 

overruled.

DISPOSITION

Having overruled Appellant’s first and second issues, we affirm the trial court’s 

judgment.

BRIAN HOYLE

Justice

Opinion delivered July 29, 2016.

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

JULY 29, 2016

NO. 12-15-00233-CR

JAMES EDWARD MULLINNIX, III,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 349th District Court 

of Anderson County, Texas (Tr.Ct.No. 31982)

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., Hoyle, J., and Neeley, J.