                                   NOS. 12-13-00278-CR
                                        12-13-00279-CR
                                        12-13-00280-CR

                            IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

RODERICK CREAG, SR.,                             §      APPEAL FROM THE 349TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                   §   HOUSTON COUNTY, TEXAS
                                   MEMORANDUM OPINION
          Roderick Demetrius Creag, Sr. appeals his convictions for murder, unlawful possession of
a firearm by a felon, and aggravated assault with a deadly weapon, for which he was sentenced to
imprisonment for life, twenty years, and life 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 murder, unlawful possession of a
firearm by a felon, and aggravated assault with a deadly weapon. Appellant pleaded “not guilty”
to these charges, and the matters proceeded to a jury trial, following which the jury found
Appellant “guilty” as charged of each offense. Following a trial on punishment, the jury assessed
Appellant’s punishments at imprisonment for life for murder, imprisonment for twenty years for
unlawful possession of a firearm by a felon, and imprisonment for life for aggravated assault with
a deadly weapon. The trial court sentenced Appellant accordingly, and this appeal followed.
                                  CRUEL AND UNUSUAL PUNISHMENT
          In his sole issue, Appellant argues that each of his sentences 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 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 murder, the punishment range for which is five to ninety-nine years, or
life.     See TEX. PENAL CODE ANN. §§ 12.32(a), 19.02(c) (West 2011).             Appellant was also
convicted of unlawful possession of a firearm by a felon, the punishment range for which,
considering enhancements, is two to twenty years. See TEX. PENAL CODE ANN. §§ 12.33(a),
12.42(a), 46.04(e) (West 2011 & Supp. 2013).             Further still, Appellant was convicted of
aggravated assault with a deadly weapon, the punishment range for which is five to ninety-nine
years, or life. See TEX. PENAL CODE ANN. §§ 12.32(a), 22.02(b)(1) (West 2011). Here, each
sentence imposed by the trial court falls within the applicable range of punishment set forth by the
legislature. Therefore, none of Appellant’s sentences is 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


                                                    2
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.), 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 must first 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. 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 instant case, the offenses committed by Appellant––murder, unlawful possession of a
firearm by a felon, and aggravated assault with a deadly weapon––were each more serious than
any of the offenses committed by the appellant in Rummel, while none of Appellant’s sentences
are more severe than the life sentence upheld by the Supreme Court in Rummel. Thus, it is logical
that if the sentence in Rummel was not unconstitutionally disproportionate, then neither are any 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 sole issue is overruled.


                                                     DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
                                                                   BRIAN HOYLE
                                                                      Justice
Opinion delivered June 30, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



                                               (DO NOT PUBLISH)


                                                            3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JUNE 30, 2014


                                          NO. 12-13-00278-CR


                                      RODERICK CREAG, SR.,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 12CR-145)

                        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.
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JUNE 30, 2014


                                          NO. 12-13-00279-CR


                                      RODERICK CREAG, SR.,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 12CR-146)

                        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.
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JUNE 30, 2014


                                          NO. 12-13-00280-CR


                                      RODERICK CREAG, SR.,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 12CR-147)

                        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.
