                                        NO. 12-17-00082-CR

                               IN THE COURT OF APPEALS

                   TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

BOBBY BURRELL,                                            §        APPEAL FROM THE 87TH
APPELLANT

V.                                                        §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                  §        ANDERSON COUNTY, TEXAS

                                        MEMORANDUM OPINION
         Bobby Burrell appeals his conviction for six counts of aggravated assault with a deadly
weapon. In one issue, Appellant argues that his sentence was disproportionate to the crime for
which he was convicted. We affirm.


                                                  BACKGROUND
         Appellant was charged by indictment with six counts of second-degree felony aggravated
assault with a deadly weapon1 and pleaded “guilty.” Following a sentencing hearing, the trial
court found Appellant “guilty” as charged and sentenced him to imprisonment for twenty years. 2
This appeal followed.


                                    CRUEL AND UNUSUAL PUNISHMENT
         In his sole issue, Appellant argues that the twenty year sentence imposed by the trial
court 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


         1
             See TEX. PENAL CODE ANN. § 22.02 (West 2011).
         2
          The trial court sentenced Appellant to twenty years for each of the six counts, but the sentences are to run
concurrently.
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 his sentence 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 aggravated assault with a deadly weapon,
the punishment range for which is not less than two years but no more than twenty years. See
TEX. PENAL CODE ANN. §§ 12.33(a), 22.02 (West 2011). Thus, 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 contends that his sentence is “grossly disproportionate.” 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



                                                 2
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 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 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.
       In the case at hand, the offense committed by Appellant—aggravated assault with a
deadly weapon—is far more serious than the combination of offenses committed by the appellant
in Rummel, while Appellant’s twenty 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, neither is the sentence assessed against
Appellant in the present case. 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 sole issue is overruled.


                                          DISPOSITION
       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                BRIAN HOYLE
                                                                   Justice


                                                3
Opinion delivered August 9, 2017.
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

                                            AUGUST 9, 2017


                                         NO. 12-17-00082-CR


                                        BOBBY BURRELL,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 87th District Court
                     of Anderson County, Texas (Tr.Ct.No. 87CR-16-32850)

                        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., Hoyle, J., and Neeley, J.
