                                   NO. 12-18-00096-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

 TIMOTHY CRAIG BAILEY,                            §      APPEAL FROM THE 3RD
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      ANDERSON COUNTY, TEXAS

                                   MEMORANDUM OPINION
        The State filed a motion for rehearing, which is granted. The court’s opinion and judgment
dated December 12, 2018, are withdrawn, and the following opinion and judgment are substituted
in its place.
        Timothy Craig Bailey appeals his conviction for evading arrest or detention with a vehicle,
for which he was sentenced to imprisonment for twenty-five years. In two issues, Appellant argues
that his sentence is grossly disproportionate to the crime of which he was convicted and the trial
court failed to properly admonish him with regard to enhancement allegations. We affirm.


                                          BACKGROUND
        Appellant was charged by indictment with evading arrest or detention with a vehicle. The
State later gave notice of its intent to submit to the factfinder that Appellant previously was
convicted of two felonies––burglary of a habitation and manufacture or delivery of between one
and four grams of a controlled substance in Penalty Group 1. Appellant pleaded “not guilty,” and
the matter proceeded to a jury trial.
        Ultimately, the jury found Appellant “guilty” as charged. At his trial on punishment,
Appellant pleaded “true” to the enhancement allegations, and the jury assessed his punishment at
imprisonment for twenty-five years. The trial court sentenced Appellant accordingly, and this
appeal followed.
                                   CRUEL AND UNUSUAL PUNISHMENT
        In his first issue, Appellant argues that his twenty-five year sentence 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); 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 he 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 evading arrest or detention with a vehicle,
the punishment range for which, considering enhancements, is twenty-five to ninety-nine years.
See TEX. PENAL CODE ANN. §§ 12.42(d) (West Supp. 2018); 38.04(b)(2) (West 2016). 1 Thus, the


        1
           During the 2011 legislative session, Section 38.04 of the Texas Penal Code was amended multiple times,
resulting in two different punishment schemes. Both punishment schemes remain codified in Section 38.04 to this


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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 contends that his sentence is grossly disproportionate to the crime
of which he was convicted. Under 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), 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. Id., 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 sentence is grossly disproportionate. In so
doing, we are guided by the holding in Rummel v. Estelle, 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 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 265–66, 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 284–85, 100 S. Ct. at 1144–45.


day. See TEX. PENAL CODE ANN. § 38.04. The Fort Worth Court of Appeals analyzed this variance and concluded
the statutory amendments were capable of being harmonized pursuant to the Texas Code Construction Act. See
Adetomiwa v. State, 421 S.W.3d 922, 925–27 (Tex. App.–Fort Worth 2014, no pet.). The court further noted that
even if the amendments were irreconcilable, the amendment making the offense a third degree felony in a situation
where the defendant used a motor vehicle without having been previously convicted of the same offense, was the final
amendment of the legislative session and would be the prevailing amendment under Section 311.025(b) and (d) of the
Texas Code Construction Act. See id. We agree. See Thompson v. State, No. 12-13-00264-CR, 2014 WL 3662239,
at *1–2 (Tex. App.–Tyler July 23, 2014, no pet.) (mem. op., not designated for publication).


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       In the case at hand, the offense committed by Appellant––evading arrest or detention with
a vehicle with two prior felony convictions––is more serious than the combination of offenses
committed by the appellant in Rummel, while Appellant’s twenty-five year sentence is 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 the threshold test has not
been satisfied, we need not apply the remaining elements of the Solem test. See McGruder, 954
F.2d at 316; see also Jackson, 989 S.W.2d at 845–46. Appellant’s first issue is overruled.

                 VOLUNTARINESS OF PLEAS TO ENHANCEMENT ALLEGATIONS
       In his second issue, Appellant argues that the trial court failed to make proper inquiries
pursuant to Texas Code of Criminal Procedure, Article 26.13, thereby rendering involuntary his
pleas of “true” to the enhancement allegations. Specifically, Appellant contends that the trial court
failed to admonish him as to the range of punishment with the enhancements and to inquire into
his competency to enter the plea.
       Article 26.13 provides that prior to accepting a plea of guilty or a plea of nolo contendere,
the court shall admonish the defendant of the range of punishment attached to the offense. See
TEX. PENAL CODE ANN. § 26.13(a)(1) (West Supp. 2018). Moreover, no plea of guilty or plea of
nolo contendere shall be accepted by the court unless it appears that the defendant is mentally
competent and the plea is free and voluntary. Id. § 26.13(b).
       “However, it is well established that the provisions of Article 26.13, including the
requirement that a defendant be admonished on the range of punishment, apply only to pleas of
guilty or nolo contendere to the charged offense, not to pleas of true to allegations in the
enhancement paragraphs.” Simmons v. State, No. 03-14-00707-CR, 2017 WL 1130372, at *2
(Tex. App.–Austin Mar. 23, 2017, no pet.) (mem. op., not designated for publication); see also
Brazell v. State, 828 S.W.2d 580, 582–83 (Tex. App.–Austin 1992, pet. ref’d).
       Here, Appellant pleaded “not guilty,” and was tried by a jury. Because the provisions of
Article 26.13 do not apply to pleas of “true,” to enhancement allegations, we hold that the trial
court was not required to admonish Appellant at this stage in the proceedings. Appellant’s second
issue is overruled.




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                                                  DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered March 12, 2019.
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

                                           MARCH 12, 2019


                                         NO. 12-18-00096-CR


                                   TIMOTHY CRAIG BAILEY,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee



                             Appeal from the 3rd Judicial District Court
                      of Anderson County, Texas. (Tr.Ct.No. 3CR-17-33121)


                       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., Griffith, J., and Hoyle, J.




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