                                 NO. 12-12-00313-CR

                        IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

JAMAIOUS L. WHITAKER,                           §           APPEAL FROM THE THIRD
APPELLANT

V.                                              §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §           ANDERSON COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Jamious L. Whitaker appeals the revocation of his community supervision, following which
he was sentenced to imprisonment for ten years. In one issue, Appellant argues that his sentence
amounts to cruel and unusual punishment. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with engaging in organized criminal activity and
pleaded “guilty.”   The trial court found Appellant “guilty” as charged and sentenced him to
imprisonment for ten years, but suspended the sentence and placed Appellant on community
supervision for ten years.
       On July 10, 2012, the State filed a motion to revoke Appellant’s community supervision
alleging that Appellant had violated certain conditions thereof. On September 7, 2012, the trial court
conducted a hearing on the State’s motion. Appellant pleaded “not true” to the allegations in the
State’s motion. At the conclusion of the hearing, the trial court found multiple allegations in the
State’s motion to be “true,” revoked Appellant’s community supervision, and sentenced him to
imprisonment for ten years. This appeal followed.
                                 CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that his sentence amounts to cruel and unusual punishment
in violation of the United States and Texas constitutions. 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); see also
TEX R. APP. P. 33.1. Even so, we conclude that the sentence about which Appellant complains does
not constitute cruel and unusual punishment.
       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
engaging in organized criminal activity, the punishment range for which is, under the facts of this
case, two to ten years. See TEX. PENAL CODE ANN. §§ 12.34(a), 71.02 (West 2011 & Supp. 2012).
Here, 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 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.); see also Jackson v. State, 989 S.W.2d 842, 845–
46 (Tex. App.–Texarkana 1999, no pet.).

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         We must first 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. 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––engaging in organized criminal
activity––was more serious than any of the offenses committed by the appellant in Rummel, while
Appellant’s ten year sentence is no more severe than the life sentence upheld by the Supreme Court in
Rummel.         Thus, it follows 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.


                                                                    BRIAN HOYLE
                                                                      Justice

Opinion delivered June 25, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)


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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                             JUNE 25, 2013


                                         NO. 12-12-00313-CR


                                   JAMAIOUS L. WHITAKER,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                              Appeal from the 3rd Judicial District Court
                           of Anderson County, Texas. (Tr.Ct.No. 30343)


                       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.
                       Brian Hoyle, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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