                                    IN THE
                            TENTH COURT OF APPEALS

                                No. 10-17-00401-CR

BOBBY JOE NICHOLS, JR.,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                            From the 54th District Court
                             McLennan County, Texas
                            Trial Court No. 2016-986-C2


                            MEMORANDUM OPINION


      Bobby Joe Nichols, Jr. appeals from a conviction for failure to register as a sex

offender for which he was sentenced to ten years in prison. Nichols complains that his

sentence violated the Eighth Amendment's prohibition against cruel and unusual

punishment, violated Article I, Section 13 of the Texas Constitution's guarantee against

cruel or unusual punishment, and violated the Eighth Amendment and Article I, Section

13 of the Texas Constitution's prohibition against unusual punishment because it was

grossly disproportionate.
         The Eighth Amendment to the Constitution of the United States provides:

"Excessive 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.               Robinson v.

California, 370 U.S. 660, 675, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). The Texas Constitution

provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or

unusual punishment be inflicted." TEX. CONST. art. I, § 13.

         In issues two and three, in addition to his complaints regarding the United States

Constitution, Nichols complains that his sentence violates the Texas Constitution which

should provide different protections than the United States Constitution due to the

difference in the phrase "cruel and unusual punishment" contained in the Eighth

Amendment and "cruel or unusual punishment" contained in Article I, Section 13 of the

Texas Constitution. (emphasis added). However, the Court of Criminal Appeals has

considered the distinction between "and" and "or" and determined that there is no

significant difference between protection against cruel "and" unusual punishment under

the United States Constitution and the protection against cruel "or" unusual punishment

under the Texas Constitution. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).

Because we are required to follow established precedent of the Court of Criminal

Appeals, we cannot say that the Texas Constitution provides any additional protections

on this basis. We will therefore consider Nichols's issues pursuant to the same standards

in the two constitutions.

Nichols, Jr. v. State                                                                  Page 2
         When a sentence falls within the range of punishment provided by the legislature,

it is generally not grossly disproportionate to the offense committed. State v. Simpson, 488

S.W.3d 318, 323 (Tex. Crim. App. 2016). Here, Nichols concedes that his ten year sentence

is within the statutory range of punishment for the offense of which he was convicted.

See TEX. PENAL CODE ANN. § 12.34 (punishment for third degree felony is two to ten years'

imprisonment); TEX. CODE CRIM. PROC. ANN. § 62.102(b)(2) (offense is third degree

felony).

         However, even if a sentence falls within the statutory punishment range, the

sentence may violate the Eighth Amendment if the sentence is grossly disproportionate

to the offense or to sentences in other similar offenses. See Solem v. Helm, 463 U.S. 277,

289-90, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). To determine whether a sentence for a

term of years is grossly disproportionate for a particular defendant's crime, we consider

the severity of the sentence in light of the harm caused or threatened to the victim, the

culpability of the offender, and the offender's prior adjudicated and unadjudicated

offenses. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (citing Graham v.

Florida, 560 U.S. 48, 60, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); McGruder v. Puckett, 954

F.2d 313, 316 (5th Cir. 1992) (noting that the Supreme Court's holding in Harmelin v.

Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), modified the gross-

disproportionality test previously set out in Solem, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed.

2d 637 (1983)). In the rare case in which this analysis leads to an inference of gross

disproportionality, we compare the defendant's sentence with the sentences received by

Nichols, Jr. v. State                                                                  Page 3
other offenders in the same jurisdiction and with the sentences imposed for the same

crime in other jurisdictions. Graham, 560 U.S. at 60. If this comparative analysis confirms

that the sentence is grossly disproportionate, the sentence is cruel and unusual. Id.

         As a prerequisite to presenting a complaint regarding gross disproportionality for

appellate review, the record must show that the complaint was made to the trial court

either by objection or through a motion for new trial, and the trial court either ruled

against or refused to rule on the complaint. TEX. R. APP. P. 33.1(a). Nichols filed a motion

for new trial in which he called to the attention of the trial court that he challenged the

sentence assessed against him, specifically alleging that the sentence created a violation

of the prohibition against cruel and unusual punishment as proscribed by the Eighth

Amendment of the United States Constitution and was also a violation of the prohibition

against cruel or unusual punishment as set forth in Article 1, Section 13 of the Texas

Constitution.           Nichols claimed the penalty which he was assessed is grossly

disproportionate to the conduct which precipitated the charge, which was the failure to

register as a sex offender because his business address had changed to his personal

residence when he began working from home. His home address was already registered

as his home address and did not change. Nichols contends that there was no evidence

presented of additional offenses committed by him because he denied each contention

when asked by the State regarding pending allegations of criminal conduct against him.

Nichols argues that when weighing the severity of the sentence in light of the harm

caused or threatened in what is in essence, a "technical and harmless" crime, the sentence

Nichols, Jr. v. State                                                                   Page 4
of the maximum punishment allowed is grossly disproportionate.

         In an effort to comply with the second and third prongs of the tests in Solem and

Harmelin, Nichols has provided us with what he represents to be the statutes and ranges

of punishment for the forty-nine other states which would be the equivalent or rough

equivalent of the punishment range for the level of registration in Texas's offense of

failure to register as a sex offender. See TEX. CODE CRIM. PROC. ANN. § 62.102(b)(2). It is

pointed out in Nichols's brief that eight other states have statutes which impose penalties

which are the same or more severe than Texas. However, the range of statutory penalties

of the various states is not one of the measures under the three-pronged test mentioned

in Solem and Harmelin; the test, rather, is the range of sentences which are actually

assessed. No proof of the sentences that even might potentially be actually assessed has

been provided.

         Additionally, when a claim of this nature has not been presented to the trial court,

the trial court has had no opportunity to examine its ruling in light of the claim of

disproportionality. Nichols did file a motion for new trial which raises the issue of

disproportionate sentencing. However, at the hearing on that motion, no evidence or

argument was presented which would go toward satisfaction of the tests which must be

met under Solem and Harmelin. The trial court was not presented with the extensive list

of statutes from across the nation as presented to this Court to aid it in ruling on this issue

once it was raised. Even if we were to conclude that the threshold factor in Solem and

Harmelin should be resolved in Nichols's favor, because he failed to proffer evidence to

Nichols, Jr. v. State                                                                    Page 5
the trial court with his motion for new trial showing sentences for failure to register as a

sex offender in this or other jurisdictions involving defendants with a criminal history

similar to his, Nichols failed to carry his burden to show that his ten-year sentence was a

grossly disproportionate sentence that was unconstitutional. See Hammer v. State, 461

S.W.3d 301, 304 (Tex. App.—Fort Worth 2015, no pet.).

         The trial court must be given the opportunity to rule on the issues and should be

accorded the opportunity to be informed prior to making its decision. When the trial

court has not been presented the evidence upon which to rule, even if the burden had

been met at this level to show the imposition of a disproportionate sentence, this claim

has not been adequately preserved for appeal. See Pantoja v. State, 496 S.W.3d 186, 193

n.4 (Tex. App.—Fort Worth 2016, pet. ref'd). Nichols's issue regarding disproportionate

sentencing is overruled.

CONCLUSION

         Having found no reversible error, we affirm the judgment of the trial court.




                                                  TOM GRAY
                                                  Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed October 9, 2019
Do not publish
[CR25]



Nichols, Jr. v. State                                                                   Page 6
