                                  NO. 12-15-00077-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

ROXANNE YVETTE DAVIS,                           §      APPEAL FROM THE 241ST
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Roxanne Yvette Davis appeals her conviction for theft, for which she was sentenced to
confinement for sixteen months. In two issues, Appellant argues her sentence is excessive and
grossly disproportionate to the crime of which she was convicted. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with theft. The indictment further alleged that
Appellant had twice been previously convicted of theft. Appellant pleaded “guilty,” and the
matter proceeded to a trial on punishment. Ultimately, the trial court sentenced Appellant to
confinement for sixteen months, and this appeal followed.


                              CRUEL AND UNUSUAL PUNISHMENT
       In her first and second issues, Appellant argues that the sixteen month 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 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); Ajisebutu v. State, 236 S.W.3d 309, 311–12 (Tex. App.–Houston [1st Dist.] 2007,
no pet.) (waiver with regard to Texas Code of Criminal Procedure, Article 1.09); 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 she 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 theft of property valued at less than $1,500 with two prior theft
convictions, the punishment range for which is one hundred eighty days to two years. See TEX.
PENAL CODE ANN. §§ 12.35(a), 31.03(e)(4)(D) (West Supp. 2014). 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



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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. 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––theft of less than $1,500 with
two prior theft convictions––is more serious than the combination of offenses committed by the
appellant in Rummel, while Appellant’s sixteen month 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 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 first and
second issues are overruled.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.
                                                                  JAMES T. WORTHEN
                                                                     Chief Justice
Opinion delivered September 2, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                              (DO NOT PUBLISH)


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         SEPTEMBER 2, 2015


                                         NO. 12-15-00077-CR


                                   ROXANNE YVETTE DAVIS,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1149-14)

                        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.
