                                NOS. 12-13-00345-CR
                                     12-13-00346-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

LAQUENTIN WASHINGTON,                           §        APPEALS FROM THE 241ST
APPELLANT

V.                                              §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §        SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
       LaQuentin Washington appeals his convictions for possession of between four and two
hundred grams cocaine with intent to deliver and tampering with physical evidence, for which he
was sentenced to imprisonment for forty-five years and twenty years respectively. In one issue,
Appellant argues that his sentences are excessive and grossly disproportionate to the crimes of
which he was convicted. We affirm.


                                         BACKGROUND
       Appellant was charged by separate indictments with possession of between four and two
hundred grams of cocaine with intent to deliver and tampering with physical evidence. Each
indictment also alleged that Appellant previously had been convicted of delivery of a controlled
substance. Appellant pleaded “guilty” to the charged offenses and “true” to the enhancement
allegations in each cause. Following a punishment hearing, the trial court sentenced Appellant to
imprisonment for forty-five years for the possession with intent to deliver offense and twenty
years for the tampering offense. This appeal followed.
                               CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that his sentences each amount to cruel and unusual
punishment in violation of the United States Constitution. 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 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 sentences
about which Appellant complains do 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 possession of between four and two hundred grams of cocaine with
intent to deliver, the punishment range for which, considering the enhancement allegation, is
fifteen to ninety-nine years, or life. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D),
481.112(d) (West 2010); TEX. PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2014). Moreover,
Appellant was convicted of tampering with physical evidence, the punishment range for which,
considering the enhancement allegation, is two to twenty years. See TEX. PENAL CODE ANN.
§§ 12.33(a), 12.42(a), 37.09(c) (West 2011 & Supp. 2014). Here, the sentences imposed by the
trial court fall within the range set forth by the legislature. Therefore, the punishments are 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,



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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.
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 sentences are 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 offenses committed by Appellant––possession of between four
and two hundred grams of cocaine with intent to deliver and tampering with physical evidence––
each were more serious than the combination of offenses committed by the appellant in Rummel,
while Appellant’s forty-five and twenty year sentences are each 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 are either of the
sentences 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 issue is overruled.




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

                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered February 11, 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

                                         FEBRUARY 11, 2015


                                         NO. 12-13-00345-CR


                                  LAQUENTIN WASHINGTON,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0592-13)

                        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.
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         FEBRUARY 11, 2015


                                         NO. 12-13-00346-CR


                                  LAQUENTIN WASHINGTON,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0593-13)

                        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.
