                                NO. 12-14-00003-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

JESSICA DOLORES OSBORN,                        §      APPEAL FROM THE 241ST
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §      SMITH COUNTY, TEXAS

                                MEMORANDUM OPINION
       Jessica Dolores Osborn appeals her conviction for engaging in organized criminal
activity, for which she was sentenced to imprisonment for twenty-five years. In one issue,
Appellant argues that her sentence is excessive and is grossly disproportionate to the crime of
which she was convicted. We affirm.


                                        BACKGROUND
       Appellant was charged by indictment with engaging in organized criminal activity. The
indictment further alleged that Appellant had previously been adjudicated to have engaged in
delinquent conduct by committing robbery and was committed to the Texas Youth Commission.
Appellant pleaded “guilty” as charged and pleaded “true” to the enhancement allegation. The
matter proceeded to a trial on punishment. Following the presentation of evidence and argument
of counsel, the trial court found Appellant “guilty” as charged, and sentenced her to
imprisonment for twenty-five years. This appeal followed.


                             CRUEL AND UNUSUAL PUNISHMENT
       In her sole issue, Appellant argues that her sentence amounts 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. Even so, we conclude that the sentence about which Appellant complains does 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 engaging in organized criminal activity, the enhanced punishment
range for which is fifteen to ninety-nine years, or life.          See TEX. PENAL CODE ANN.
§§ 12.42(c)(1), 32.51(c)(3), 71.02(a)(8), (b) (West Supp. 2013); TEX. FAMILY CODE ANN.
§ 51.13(d) (West 2014). Here, the 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 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 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 sentence is 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.



                                                2
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 offense committed by Appellant––engaging in organized criminal
activity––was more serious than any of the offenses committed by the appellant in Rummel,
while Appellant’s twenty-five year sentence is 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 is the sentence 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 July 9, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                               JULY 9, 2014


                                          NO. 12-14-00003-CR


                                  JESSICA DOLORES OSBORN,
                                           Appellant
                                              V.
                                    THE STATE OF TEXAS,
                                           Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0881-13)

                        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.

                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
