## NO. 12

- 19

- 00048

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

ARTURO GARZA MEDINA, JR., APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 3RD

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEX AS

MEMORANDUM OPINION Arturo Garza Medina, Jr., appeals his conviction for aggravated robbery. In one issue, Appellant argues that his sentence constitutes cruel and unusual punishment and is grossly disproportionate to the crime he committed. We affirm.

B ACKGROUND Appellant was indicted for the first

- degree felony offense of aggravated robbery. In 2011, Appellant pleaded “guilty” to the offense, and the trial court placed Appellant on deferred adjudication community supervision. In 2018, the State filed an application to adjudicate Appellant’s guilt for various alleged violations of the terms of his community supervision, including a con viction for failure to comply with mandatory sex offender registration requirements. Appellant pleaded “not true” to the allegations in the State’s application. After a hearing, the trial court adjudicated Appellant’s guilt, found several of the State’s allegations in its application to be “true,” found him “guilty” of the underlying offense, revoked his community supervision, and sentenced him to forty years of imprisonment. This appeal followed.2 C RUEL AND U NUSUAL P UNISHMENT In his sole issue, Appellant argues that the forty

- year sentence imposed by the trial court is grossly disproportionate to the crime committed and amounts to cruel and unusual punishment. “To preserve for appellate review a complaint that a sentence is gr ossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.” Kim v. State , 283 S.W.3d 473, 475 (Tex. App.

— Fort W orth 2009, pet. ref’d); see also Rhoades v. State , 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver of complaint of cruel and unusual punishment under the Texas Constitution because defendant presented his argument for first time on appeal); Curry v.
Sta te , 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (defendant waived complaint that statute violated his rights under the United States Constitution when raised for first time on appeal); 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.”); T EX

. R.
A PP

. P. 33.1. A review of t he record shows that Appellant lodged no objection to the constitutionality of his sentence at the trial court level, and has, therefore, failed to preserve error for appellate review. See Kim , 283 S.W.3d at 475; see also Rhoades , 934 S.W.2d at 120; Curry
, 910 S.W.2d at 497; Mays , 285 S.W.3d at 889; T EX

. R. A PP

. P. 33.1 However, despite Appellant’s failure to preserve error, we conclude his sentence does not constitute cruel and unusual punishment. The Eighth Amendment to the Constitution of the Unit ed States provides that “[e] xcessive bail shall not be required, nor excessive fines imposed, nor 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 Fourtee nth Amendment. Meadoux v. State , 325 S.W.3d 189, 193 (Tex. Crim. App. 2010) (citing Robinson v. California , 370 U.S. 660,
666

– 667, 82 S. Ct. 1417, 1420

– 21, 8 L. Ed. 2d 758 (1962)). The legislature is vested with the power to define crimes and prescribe p enalties. 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 prescribe d 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. Appellant was convicted of3 aggravated robbery with a firearm, the punishment range for which is no less than five years but no more than ninety

- nine years or life imprisonment. See T EX

. P ENAL C ODE A NN

. §§ 12.32(a)
, 29.03(a)(2), (b) (West 2019). Thus, th e 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. See Harris , 656 S.W.2d at 486; Jordan , 495 S.W.2d at 952; Davis , 905 S.W.2d

at 664. Nevertheless, 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. Id. , 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 (1 992); see also Jackson v. State , 989 S.W.2d 842, 845

– 46 (Tex. App.

— Texarkana 1999, no pet.). We are guided by the holding in Rummel v. Estelle in making the threshold determination of whether Appellant’s sentence is grossly disproportionate to his crime. 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rummel , the Supreme Court considered 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. In that case, the appellant received a life sentence because he had two prior felony convictions

— one for fraudulent use of a credit card to obtain $80 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 habi tual 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

– 45.4 In this case, the offense committed by Appellant

— aggravated robbery

— is no less serious than the combination of offenses committed by the appellant in Rummel , while Appellant’s forty

year sentence is far 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 is not constitutionally disproportionate, neither is the sentence assessed against Appellant in this case. In his brief, Appellant makes a conclusory statement that his forty

- year sentence is grossly disproportionate when compared t o sentences in this jurisdiction and other jurisdictions. However, he cites to

no authority to support this contention. See T EX

. R. A PP

. P. 38.1( i ) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to the authorities and to the record.”). Because we do not conclude that Appellant’s sentence is disproportionate to his crime, we need not apply the remaining elements of the Solem test. Appellant’s sole issue is
overruled.

D ISPOSITION Having overr uled Appellant’s sole issue, we affirm the judgment of the trial court.

B RIAN H OYLE Justice
Opinion delivered March 25, 2020. 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

MARCH 25 , 2020

NO. 12

- 19

- 00048

- CR

ARTURO GARZA MEDINA, JR., Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 3rd District Court of Anderson County, Texas (Tr.Ct.No. 29721) 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 t here 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. Brian Hoyle , Justice

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