                                 NO. 12-15-00008-CR

                          IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JEANNE MILES,                                  §      APPEAL FROM THE 3RD
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Jeannie Miles appeals her sentence following the revocation of her deferred adjudication
community supervision. In one issue, Appellant argues that her sentence amounted to cruel and
unusual punishment. We affirm.


                                         BACKGROUND
       In 2005, Appellant was charged by indictment with possession of less than one gram of
methamphetamine and pleaded “guilty.” The trial court deferred finding Appellant guilty and
placed her on deferred adjudication community supervision. In 2011, the terms of Appellant’s
community supervision were modified, and the length of her community supervision was
extended.
       On December 3, 2014, the State filed an amended motion to revoke Appellant’s
community supervision and to proceed to final adjudication alleging that Appellant had violated
certain terms of her community supervision. On December 12, 2014, the trial court conducted a
hearing on the State’s motion. At the hearing, Appellant pleaded “true” to the allegations in the
State’s motion.
       Ultimately, the trial court found that Appellant had violated the terms of her community
supervision as alleged in the State’s motion. Thereafter, the trial court revoked Appellant’s
community supervision, adjudicated her guilty of possession of methamphetamine as charged, and
sentenced her to imprisonment for two years. This appeal followed.


                                CRUEL AND UNUSUAL PUNISHMENT
       In her sole issue, Appellant argues that the two 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 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 she 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 possession of less than one gram of methamphetamine, the punishment
range for which is one hundred eighty days to two years. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(6), 481.115(b) (West 2010); TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 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


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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. 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, the offense committed by Appellant––possession of less than one gram
of methamphetamine––is more serious than the combination of offenses committed by the
appellant in Rummel, while Appellant’s two year sentence is far 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 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.
                                                                  GREG NEELEY
                                                                     Justice
Opinion delivered May 13, 2015.
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

                                              MAY 13, 2015


                                         NO. 12-15-00008-CR


                                        JEANNE MILES,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 28114)

                        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.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
