## NO. 12

- 23

- 00057

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TYRON DWUAN MARK , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL F

ROM THE 349TH

JUDICIAL DISTRICT COURT

HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION
Appellant, Tyr on Dwuan Mark
, appe als his s entence for murder . In one issue , he alleg es that the sentence was grossly dis proportio nate to the crime committed

. We affirm

.

B ACKGROUND On April 19, 2022, Appel lant was indicted for the offense of murder
, alleged to have
occurred on or a bout February 1, 2019. Appel lant pleaded “ not guilty, ” and the case proceeded to a jury trial. After hearing the case, the jury found Appellan t “ guilty. ” Appellant e lected to have the judge determine punishme nt. During the punishment phase, the S tate al leged as an enhance ment that in 1997 , Appellant was finally convicted of the
felon y offenses of agg ravated sexua l assault and aggravated kidnap ping

. Appellant p leaded

“ true ” to the enhancement

. The judge found the enhancement paragraph “ true ” and assesse d punishment of life i mp risonment. This appeal followed.

C RUEL AND U NUSUAL P U NISHMENT

In hi s first issue, Appellan t argues th at the sentence of life imprisonment is grossly disproportionate to the crime committed and a mount s to crue l a nd unusual punishme nt und e r the2

United S ta tes Constitution and the Texas Constitution

. Appellant conten ds that his sentence is grossly disprop or tionate to his c o ndu ct in committing the offense and tha t the trial court should
h ave impose d a shorter sentence

. Before a c omplai nt may be presented for appellate review, the rec ord must show that Appellant raised the c omp laint t o the trial court by a t imely request, obje ction, or motion

. T EX

. R

. A PP

. P

. 33.1(a)(1); see Kim v. St ate , 283 S.W.3d 473, 475 (Te x. App.

— Fo rt Worth 2 009, pet. ref ’ d)

. A complaint that a sentence is grossl y disp roportionate and constitutes cruel and unusual puni shment may be pres erved by objectin g at the punishment hearing, or w hen the sentence is

pr onounc ed. Burt v. State , 396 S.W.3 d 574, 577 (Tex. Cri m. App. 2013) ; Kim , 283 S.W.3d at 475

. An appellant may raise a sent encing issue for the first t ime in a motion for new trial only if
he did not have an opportunity to object when the sentence was imposed

. Bu rt , 396 S .W.3d at 577 n.4. I n this cas e, the rec ord does not show that Appella nt objected when the sentence w as imposed at trial , and he does not assert that he lacked an opportu ni ty to raise such an objection. Therefore, it appears that Appellant did not properly pres er ve error on th i s issue

. However, assuming ar

guendo tha t Appella nt did preserve this complaint for appellate review , we cannot grant him relief becaus e his sentence do es not co nstitute cru el an d unusual punis hment.
The United Sta tes Constitution provi d es that “[e]xcessive bail shall not be require d, nor

exce ssive fine s imposed, nor cruel and unusual punishments inflicted.” U.S. C ONST

. amend.
VIII. This provision was made appl icable to the s tates by the Due Pro cess Cl ause of the
Fo urteenth Amendmen t. Me a doux v. State , 325 S.W.3d 189, 19 3 (Tex. Crim. A pp. 2010)

. Similarl y, the Texas Constitution provides that “[e]xcessive bail shall not be required, nor

e xcessive fines imposed, nor cruel or un usual punishment inf licted. ” T EX

. C ONST

. art. 1, § 13.
The diff e rence between the Eighth Amendme nt ’ s “cruel an d unusual” p hrasing a nd the Texas
Constitution ’ s “cruel or unusual” phrasing is insi gnificant. Cantu v. Sta te , 939 S.W.2d 627, 6 45 (Tex. Crim. App . 199 7). The legisla ture is vested with t he power to defin e cri m es and prescribe penalties. Se e Davis v. State
, 905 S.W.2 d 655, 664 (Tex. App.

— Texarkana 1995, pet. ref ’ d); see also Simmons
v. State , 944 S.W.2d 11, 15 (Tex. App.

— Tyl er 199 6, pet. ref ’ d). Cou rts h ave repeatedly held
th at punishment which falls withi n the limits prescribed by a valid statute is not ex ce ssive, cr uel,

or un usual. See Harris v. State , 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. Stat e , 495 S.W.2d 949, 952 (Tex. Crim. App. 1973 ); D avis , 905 S .W.2d a t 664. In thi s case, Appellant3

was co nvicted of murder
, a first

- d egree felon y with a puni shment range fr om five to ninety

- nine

ye ars of i mp risonment , or life imprisonment

. T EX

. P ENAL C ODE A NN

. § § 19.02 (c) , 1 2.3 2 ( West 2023)

. With the en ha ncement regarding prior felony convictions to which Appellant ple aded

“ true , ” the applicable punishme nt range was a minimu m of f ifteen years ’ imprisonment and a

m aximum of ninety

- nine years ’ imprisonment, or life imprisonmen t

. Id. § 12.42 (c) ( 1) ( West 2023)

. Thus
, the sentence of li fe impr isonment i mposed by the trial court falls wit hin the range

set fort h by the le gislature. Therefore, the punishment is not prohibited as cruel, unusua l, or
excessi ve per se. See Harris
, 6 56 S.W.2d at 486; Jo rdan , 495 S.W.2d a t 952 ; Davis , 905
S.W.2d a t 664.
Neverthel ess, Appellant urges th is C ourt t o consider the facto rs o riginally s et forth in
Sol em v. Helm , 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). U nder this test , the

pro porti onality of a sen tence is evaluated by c onsidering (1) the gr avity of the off ense and the
harshnes s of the pe nalty, (2) the s enten ces imposed on other crimi nals in the same jurisdiction, and (3) the sentences imposed for commissi on o f the same crime in othe r jurisdictions. Id. , 463
U.S. at 292, 103 S. Ct. at 3011. T he application o f the Solem test has been modi fied by Texas

cour ts an d th e Fifth Cir cuit Court of A ppeals in light of the Supreme Court ’ s decision in
Harme lin v. Michig an , 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed . 2d 836 (1991) to requ ire a
threshold deter mination that th e sentence is grossly disp ropo rtionate to the cr ime b efor e addressin g the remai ning elements. See, e.g., McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir

. 19 92), cert. denie d , 506 U .S. 849, 113 S. Ct. 146, 121 L. Ed . 2d 98 (1992); see also J ackson v.
State
, 989 S.W.2d 842, 845

– 46 (T ex. App.

— Texarkana 199 9, no pet .).
We are guided by t he holding in Rummel v. Estelle in making the threshold
dete rmination of whet her Appellant ’ s sentence is grossly di sproportionate to his c rime . 445 U.S. 263, 100 S. Ct. 1133, 63 L.Ed. 2d 382 (19 8 0). In Rum mel , the Supreme Cou rt co nsid ered the

pr oportionali ty claim of an appellant who had received a mandatory lif e sentence unde r a prior
version of the Texa s habitual of fender statute for a co nvict ion of obtaining $120.75 by false

p retenses. See id.
, 445 U.S. at 266, 100 S. Ct. a t 113 5. I n that case , the appel lant received a life sentence because he had two prior fe lony conviction s

— one for fraudulen t use of a credit card to obtain $80 .00 w orth of go ods or services and the other for p assing a forged ch ec k in th e amount of $28.36. I

d. , 4 45 U .S. at 265

– 66, 100 S. Ct. at 1134

– 35. After recognizing the legislative

preroga tive to classif

y offenses as felo nies and, f urther, consi dering the purpose of t he ha bitual4

offender statute, the court determined that th e appell ant ’ s mandatory life s enten ce d id not

cons titute crue l and unusual punishment. Id. , 445 U.S. at 284

– 85, 100 S. Ct. at 1144

– 45

. In this case, t he offense Appellant com mitted

— murder

— is far more serious t han the
combi nation of offenses committed by th e appe lla nt in Rummel , while Appel lant ’ s sentenc e is equival ent to the life sentence up held by the Supreme Court in Rummel

. Thus, it is reasonable

t o c onclu de that if the se ntence in Rumme l i s not un consti tutionall y disproportionate, neith er is App ellant ’ s sent ence in this case. Because we do not find th at th e thre sho ld test is satisfied , we need not apply the remaining elements of the Sol em test. Ac cor dingl y, we overrule App ellant ’ s sole is sue

.

D ISPOSITION Having ove rruled Appell ant ’ s sole issue , we a ffirm th e trial court ’ s judgment

.

G REG N EELEY Justice
Opinion d elivered October 6 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRIC T OF TEXAS

JUDGMENT

OCT OBER 6 , 2023

NO. 12

- 23

- 00057

- CR

TYRON DWUAN MARK , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 349th District Court
of Houston Cou nt y, Texas (Tr.Ct.No. 19CR

- 080 ) 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 DECRE ED that the judgment
of the court below be in all things affirmed
, and that this decision be certif ied to the cou rt below for observance.

Greg Neeley , Justice

. Panel consisted of Wort hen, C.J., Hoyle, J., and Ne eley, J.