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

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§

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APPEAL FROM THE 3RD

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

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 sentence 

amounted to cruel and unusual punishment. We affirm.

BACKGROUND

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 to imprisonment for sixty years, and 

this appeal followed.

CRUEL AND UNUSUAL PUNISHMENT

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 with 
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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 assault on a public servant, the punishment 

range for which, considering enhancements, is twenty-five to ninety-nine years, or life. See TEX.

PENAL CODE ANN. §§ 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 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 
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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. 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––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, it 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 need not apply 

the remaining elements of the Solem test. Appellant’s sole issue is overruled.

DISPOSITION

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

JAMES T. WORTHEN

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 STATE 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 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.

James T. Worthen, Chief Justice.

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