                                  NO. 12-14-00025-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

WILLIS DEMOND CARWELL,                          §      APPEAL FROM THE 3RD
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Willis Demond Carwell appeals his conviction for five counts of sexual assault of a child,
for which he was sentenced to imprisonment for seventy-five years on each count with the
sentences in counts one and two running consecutively. In one issue, Appellant argues that his
consecutive sentences are excessive and grossly disproportionate to the crime of which he was
convicted. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with five counts of sexual assault of a child and
pleaded “guilty” to each count. The indictment further alleged that Appellant was previously
convicted of burglary of a habitation. The matter proceeded to a jury trial on punishment, at
which Appellant pleaded “true” to the enhancement allegation. Ultimately, the jury assessed
Appellant’s punishment at imprisonment for seventy-five years on each count. The trial court
sentenced Appellant accordingly and ordered that his sentences for counts one and two run
consecutively. The trial court further ordered that his sentences for counts three, four, and five
run concurrently with his sentence for count two. This appeal followed.
                                 CRUEL AND UNUSUAL PUNISHMENT
          In his sole issue, Appellant argues that his consecutive sentences amount 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; 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 five counts of sexual assault of a child, the punishment range for
which, considering the enhancement allegation, is five to ninety-nine years or life for each
offense. See TEX. PENAL CODE ANN. §§ 12.32(a), 12.42(b), 22.011(f) (West 2011 & Supp.
2014). Moreover, because the victim in this case was younger than seventeen years old, the trial
court was entitled to order that Appellant’s sentences run consecutively. See id. § 3.03(b)(2)(A)
(West 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, each of the five counts of sexual assault of a child was far more
serious than the combination of offenses committed by the appellant in Rummel, while
Appellant’s consecutive seventy-five year sentences are, in effect, no more 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 the consecutive
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 sole 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)



                                                          4
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                        FEBRUARY 11, 2015


                                        NO. 12-14-00025-CR


                                 WILLIS DEMOND CARWELL,
                                          Appellant
                                             V.
                                   THE STATE OF TEXAS,
                                          Appellee


                                 Appeal from the 3rd District Court
                          of Anderson County, Texas (Tr.Ct.No. 31064)

               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, for which execution may issue, 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.
