## NO. 12

- 15

- 00280

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICHARD GROSS, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 3RD

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEX AS

MEMORANDUM OPINION Richard Gross appeals his conviction for assault on a public servant, for which he was sentenced to imprisonment for sixty years. In one issue, Appellant argues that his sent ence amounted to cruel and unusual punishment. We affirm.

B ACKGROUND Appellant was charged by indictment with assault on a public servant and pleaded “not guilty.” The State later filed a notice of enhancements to be submitted to the factfinder at the punishment phase. This notice included allegations that Appellant had three prior felony
convictions. A jury found Appellant “guilty” as charged, and the matter proceeded to a bench trial on punishment. Ultimately, the trial court sentenced Appellant t o imprisonment for sixty years, and this appeal followed.

C RUEL AND U NUSUAL P UNISHMENT In his sole issue, Appellant argues that the sixty 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 with2

regard to rights under the Texas Constitut ion); 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 sys temic 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 erro r, 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, n or 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) (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 assault on a public servant, the punishment range for which, considering enhancements, is twenty

- five to ninety

- nine years, or life. See T EX

. P ENAL C ODE A NN

. §§ 12.32(a), 12.42(d), 22.01(a)(1), (b)(1) (West 2011 & Supp. 2015). Thus, the sentence imposed by the trial court falls within the range set forth by the legislature. Therefore, the pu nishment 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

pr oportionality 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 i n 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 Harmelin3

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. den ied , 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 guide d 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 had received a mandatory life sentence under a prior version of the Texas ha bitual 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 car d 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, cons idering 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 b y Appellant

–– assault on a public servant

–– is far more serious than the combination of offenses committed by the appellant in Rummel , while Appellant’s sixty year sentence is less severe than the life sentence upheld by the Supreme Court
in Rummel . Thus, i t is reasonable to 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 we do not find the threshold test to be satisfied, we nee d not apply the remaining elements of the Solem test. Appellant’s sole issue is overruled.

D ISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
J AMES T. W ORTHEN Chief Justice
Opinion delivered July 20, 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 20 , 2016

NO. 12

- 15

- 00280

- CR

RICHARD GROSS, Appellant V. THE STA TE OF TEXAS, Appellee

Appeal from the 3rd District Court of Anderson County, Texas (Tr.Ct.No. 32004) 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 wa s 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.

James T. Worthen , Chief Justice

. Panel consiste d of Worthen, C.J., Hoyle, J., and Neeley, J.