                                 NO. 12-13-00309-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

LARRY DELTON WARREN,                            §      APPEAL FROM THE 3RD
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Larry Delton Warren appeals his conviction for murder, for which he was sentenced to
imprisonment for sixty years. In one issue, Appellant argues his sentence is excessive and
grossly disproportionate to the crime of which he was convicted. We affirm.

                                         BACKGROUND
       Appellant was charged by indictment with murder and pleaded “not guilty.” The matter
proceeded to trial, and a jury found Appellant “guilty” as charged. Following a bench trial on
punishment, the trial court sentenced Appellant to imprisonment for sixty years. This appeal
followed.


                              CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that his sentence 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 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 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). 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.
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



                                                 2
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––murder––was more serious
than any of the offenses committed by the appellant in Rummel, while Appellant’s sixty 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.



                                                                  JAMES T. WORTHEN
                                                                     Chief 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. 12-13-00309-CR


                                   LARRY DELTON WARREN,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                  Appeal from the 3rd District Court
                          of Anderson County, Texas (Tr. Ct. No. 31182)

                        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.
