NO. 12-16-00245-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JIMMY ANDREW DAVIS, JR., 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE 3RD

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Jimmy Andrew Davis, Jr. appeals his convictions for aggravated assault causing serious 

bodily injury and kidnapping. In one issue, Appellant argues that his sentences are grossly 

disproportionate to his offenses. We affirm.

BACKGROUND

Appellant was charged by indictment with aggravated assault causing serious bodily 

injury and aggravated kidnapping. He pleaded “not guilty,” and the matter proceeded to a jury 

trial. 

At trial, the evidence showed that Ashley Webb was homeless and Appellant allowed her 

to stay at a mobile home he shared with two other roommates. After Webb refused Appellant’s 

repeated sexual advances, Appellant struck Webb with his fist, rendering her unconscious. 

When Webb awoke, her face was so swollen that she could not talk, and two of her teeth were 

detached and lying inside her mouth. Thereafter, Appellant kept Webb in a bedroom, locked 

from the outside, and told her that she could not leave. Eventually, after waking up in the room 

and seeing Appellant sleeping, Webb found a hidden key to the door and escaped. 

Webb was subsequently treated for a fractured jaw and shattered cheekbone. Doctors 

performed reconstructive surgery to her face and mouth and placed titanium plates in the right 
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side of her face. Webb’s jaw was wired shut for six months. At the time of trial, she was still 

unable to fully open her mouth.

Ultimately, the jury found Appellant “guilty” of aggravated assault causing serious bodily 

injury and kidnapping, enhanced by two prior felonies, and assessed his punishment at 

imprisonment for life in each case. This appeal followed.

CRUEL AND UNUSUAL PUNISHMENT

In his sole issue, Appellant argues that the trial court violated the constitutional 

prohibition against cruel and unusual punishment by sentencing him to imprisonment for life. 

See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. Specifically, he contends that a life 

sentence 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 object in the trial court to the disproportionality of his sentences. 

Therefore, any error in this regard has been forfeited. See Solis, 945 S.W.2d at 301-02; see also

Rhoades, 934 at 120; Curry, 910 S.W.2d at 497. 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.
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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 this case, Appellant was convicted of aggravated assault causing serious bodily injury 

and kidnapping, enhanced, the punishment range for which is twenty-five to ninety-nine years or 

life in prison. See TEX. PENAL CODE ANN. §§ 12.33(a), 12.34(a), 12.42(d), 20.03, 22.02 (West 

2011 & Supp. 2016). 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 contends that his sentence is “extremely disproportionate.”

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 sentence is grossly disproportionate. In so 

doing, we are guided by the holding in Rummel v. Estelle, 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, 
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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 265-66, 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 284-85, 100 S. Ct. at 1144-45.

In the case at hand, the offense committed by Appellant—aggravated assault causing 

serious bodily injury and kidnapping—is more severe than the combination of offenses 

committed by the appellant in Rummel, and Appellant received a life sentence like that 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 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.

Accordingly, we overrule Appellant’s sole issue.

DISPOSITION

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

GREG NEELEY

Justice

Opinion delivered August 9, 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

AUGUST 9, 2017

NO. 12-16-00245-CR

JIMMY ANDREW DAVIS, JR.,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 3rd District Court 

of Anderson County, Texas (Tr.Ct.No. 31763)

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.

Greg Neeley, Justice.

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