NO. 12-17-00197-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE MATTER OF P.D.W.,

A JUVENILE

§

§

§

APPEAL FROM THE

COUNTY COURT AT LAW

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

P.D.W., a juvenile, appeals from the trial court’s order committing him to the Texas 

Juvenile Justice Department (TJJD). In one issue, Appellant argues that his disposition is grossly 

disproportionate to his offense and not in his best interest. We affirm. 

BACKGROUND

At his original adjudication hearing, P.D.W. was found to have engaged in delinquent 

conduct by grabbing his mother’s breast and sexual organ, pinning her to the bed, stating that he 

wanted to have sex with her, and threatening her by saying that she would have sex with him one 

way or another. Had he been an adult, this conduct could have constituted a second degree 

felony.1 The trial court ordered that P.D.W. be placed on probation until his eighteenth birthday 

and admitted to G4S Youth Services until he successfully completed their program. P.D.W. was 

unsuccessfully discharged from that program after eleven months. 

The State filed a motion to modify the disposition, and P.D.W. was subsequently placed 

at Grayson County Juvenile Services Bootcamp Sex Offender Program. He was unsuccessfully 

discharged from that program after about eight months. The State filed another motion to 

modify the disposition. After a hearing, the trial court ordered P.D.W. committed to TJJD. This 

appeal followed.

 

1 See TEX. PENAL CODE ANN. §§ 15.01(a), (d) (West 2011); 22.011(a), (f) (West Supp. 2017).
2

CRUEL AND UNUSUAL PUNISHMENT

In his sole issue, P.D.W. argues that the trial court violated the constitutional prohibition 

against cruel and unusual punishment by ordering him committed to TJJD. See U.S. CONST.

amend. VIII; TEX. CONST. art. I, § 13. Specifically, he contends that the disposition is grossly 

disproportionate to his offense, considering the facts and circumstances of the offense and in 

comparison with sentences imposed on other defendants for the same offense. See Solem v. 

Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983).

The State argues that Appellant failed to preserve error for our review by a timely objection 

or motion in the trial court. See TEX. R. APP. P. 33.1. When a defendant fails to object to the 

disproportionality of his sentence in the trial court, he forfeits such error on appeal. See Solis v. 

State, 945 S.W.2d 300, 301-02 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); see also

Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (Texas cruel or unusual 

punishment error forfeited where defendant failed to object); Curry v. State, 910 S.W.2d 490, 

497 (Tex. Crim. App. 1995) (Eighth Amendment cruel and unusual punishment error not 

preserved where defendant failed to object). 

Here, Appellant did not make any objection in the trial court regarding the 

constitutionality of his disposition. Therefore, any error in this regard has been forfeited. See 

Solis, 945 S.W.2d at 301-02; see also Rhoades, 934 S.W.2d at 120; Curry, 910 S.W.2d at 497.

Moreover, after considering P.D.W.’s issue on its merits, we conclude that the disposition 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 
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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 this case, P.D.W. was adjudicated as having engaged in conduct that could constitute 

attempted sexual assault. The trial court placed him on probation until his eighteenth birthday. 

After finding that P.D.W. violated a condition of his probation, the trial court ordered him 

committed to TJJD. Commitment of a juvenile who engaged in felonious conduct to TJJD after a 

subsequent probation violation is authorized under the juvenile justice code. See TEX. FAM.

CODE ANN. § 54.05(f) (West Supp. 2017). Therefore, the commitment here is not prohibited as 

cruel, unusual, or excessive per se. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952;

Davis, 905 S.W.2d at 664.

Nonetheless, Appellant contends that commitment to TJJD is a grossly disproportionate 

penalty considering his circumstances and best interests. Under the three part test originally set 

forth in Solem v. Helm, 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. 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 disposition 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 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, 
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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, P.D.W.’s conduct was more severe than the combination of offenses 

committed by the appellant in Rummel, yet P.D.W.’s disposition was far less severe than a life 

sentence like that upheld by the Supreme Court in Rummel. P.D.W. was committed to TJJD for 

only about seven months until his eighteenth birthday. See TEX. FAM. CODE ANN. § 54.05(b)

(West Supp. 2017) (disposition expires on eighteenth birthday). Thus, it is reasonable to 

conclude that if the sentence in Rummel was not unconstitutionally disproportionate, then 

neither is P.D.W.’s disposition in this case. 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. Consequently, we cannot conclude that the trial court erred 

by making a grossly disproportionate disposition in this case.

Nor can we conclude that the trial court’s disposition is in error because it is not in P.D.W.’s 

best interest. In some parts of the family code, the best interests of children are paramount. But in 

the juvenile justice code, the best interests of children who engage in serious and repeated delinquent 

conduct are superseded to the extent they conflict with public safety. In re J.P., 136 S.W.3d 629, 

633 (Tex. 2004). When a juvenile commits a felony and subsequently violates a condition of his 

probation, the code allows a trial court to decline giving him third and fourth chances. Id. A trial 

court’s decision to commit a child to TJJD for a probation violation is subject to review for abuse 

of discretion. Id. at 632.

Here, the evidence at the modification hearing showed that although the State pursued 

only one count of attempted sexual assault by P.D.W., he had attempted to sexually assault his 

mother on several occasions. He also disclosed in treatment that he had repeatedly attempted to 

force sexual behaviors, such as grabbing and groping, onto girls his age. P.D.W. had been in 

behavioral treatment intermittently since age four. His treatment records showed a pattern and 

progression of assaultive, abusive, aggressive, and sexually inappropriate behavior. While 

P.D.W. was at the Grayson County facility, he showed a pattern of disrespecting the staff and his 

peers, making racial slurs directed at the staff and his peers, and consistently and intentionally 

breaking the rules. P.D.W. seemed to understand the lessons he was taught in his counseling 

sessions, but he failed to apply those skills to his behavior. 
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After hearing the evidence and arguments of the parties, the trial court found that (1) 

P.D.W. was in need of rehabilitation, (2) action was required to protect P.D.W. and the public, 

(3) P.D.W. required a structured therapeutic environment to meet his needs and the needs of the 

community, and (4) the State made and exceeded all reasonable efforts to establish a least 

restrictive environment for P.D.W. Under the facts and circumstances of this case, we conclude 

that the trial court did not abuse its discretion by modifying the previous disposition order to 

commit P.D.W. to TJJD. See id. Accordingly, we overrule Appellant’s sole issue.

DISPOSITION

Having overruled Appellant’s sole issue, we affirm the trial court’s order committing 

P.D.W. to TJJD.

GREG NEELEY

Justice

Opinion delivered December 13, 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

DECEMBER 13, 2017

NO. 12-17-00197-CV

IN THE MATTER OF P.D.W., A JUVENILE

Appeal from the County Court at Law 

of Anderson County, Texas (Tr.Ct.No. J15-03)

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

order of the trial court.

It is therefore ORDERED, ADJUDGED and DECREED that the trial 

court’s order committing P.D.W. to TJJD be in all things affirmed, and that this decision be 

certified to the court below for observance.

Greg Neeley, Justice.

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