                                  NO. 12-16-00323-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

CARL DONNELL,                                   §      APPEAL FROM THE 369TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Carl Donnell appeals his convictions for tampering with physical evidence and
possession of a controlled substance. In one issue, he argues that his punishment is excessive
and grossly disproportionate to the crimes for which he was convicted. We affirm.


                                         BACKGROUND
       Appellant was charged by a two count indictment with (1) tampering with physical
evidence, a third degree felony, punishable by not less than two years but not more than ten years
imprisonment, and (2) possession of a controlled substance, a state jail felony, punishable by not
less than one hundred and eighty days but not more than two years in a state jail facility.
Appellant’s indictment contained two enhancement provisions alleging that he had previously
been finally convicted of the felony offense of possession of a controlled substance and then,
sequentially, finally convicted of the felony offense of manufacture or delivery of a controlled
substance. The enhancements elevated the punishment range to not less than twenty-five years
but not more than ninety-nine years or life imprisonment for the tampering charge and not less
two years but not more than twenty years imprisonment for the possession charge.
       Appellant entered a plea of “not guilty” and the case proceeded to a jury trial. The jury
returned a verdict of “guilty” on both counts and, after finding the enhancement allegations to be
“true,” assessed punishment at thirty years imprisonment on the tampering charge and twenty
years imprisonment on the possession charge.1 This appeal followed.


                                    CRUEL AND UNUSUAL PUNISHMENT
         In his sole issue, Appellant argues that the thirty year and twenty year sentences
recommended by the jury and imposed by the trial court are grossly disproportionate to the
crimes committed and amount to cruel and unusual punishment. “To preserve for appellate
review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual
punishment, a defendant must present to the trial court a timely request, objection, or motion
stating the specific grounds for the ruling desired.” Kim v. State, 283 S.W.3d 473, 475 (Tex.
App.—Fort Worth 2009, pet. ref’d); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.
App. 1996) (waiver of complaint of cruel and unusual punishment under the Texas Constitution
because defendant presented his argument for first time on appeal); Curry v. State, 910 S.W.2d
490, 497 (Tex. Crim. App. 1995) (defendant waived complaint that statute violated his rights
under the United States Constitution when raised for first time on appeal); 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.”); TEX. R. APP. P. 33.1. A
review of the record shows that Appellant lodged no objection to the constitutionality of his
sentences at the trial court level, and has, therefore, failed to preserve error for appellate review.
See Kim, 283 S.W.3d at 475; see also Rhoades, 934 S.W.2d at 120; Curry, 910 S.W.2d at 497;
Mays, 285 S.W.3d at 889; TEX. R. APP. P. 33.1.
         However, despite Appellant’s failure to preserve error, we conclude his sentences do 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.


         1
           Appellant’s brief contains inconsistent statements regarding Appellant’s sentences, indicating both that he
was sentenced to thirty years imprisonment for the tampering charge and twenty years imprisonment for the
possession charge and that he was sentenced to life imprisonment. The record indicates that the trial court imposed
the jury recommended sentence of thirty years imprisonment on the tampering charge and twenty years
imprisonment on the possession charge.


                                                          2
Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010) (citing Robinson v. California,
370 U.S. 660, 666-667, 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 this case, Appellant was convicted of tampering with physical evidence and possession of a
controlled substance, the punishment ranges for which, considering enhancements, is twenty-five
to ninety-nine years, or life imprisonment and two to twenty years imprisonment, respectively.
See TEX. PENAL CODE ANN. §§ 12.33(a), 12.42(d), 12.425(b), 37.09 (a)(1),(c) (West 2011, 2016
and West Supp. 2016); TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)-(b) (West 2017).
Thus, the sentences recommended by the jury and imposed by the trial court fall within the range
set forth by the legislature. Therefore, the punishment is not prohibited as cruel, unusual, or
excessive per se. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905
S.W.2d at 664.
       Nevertheless, 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. Id., 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.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 are guided by the holding in Rummel v. Estelle in making the threshold
determination of whether Appellant’s sentence is grossly disproportionate to his crime. 445 U.S.



                                                3
263, 100 S. Ct. 1133, 63 L.Ed. 2d 382 (1980). In Rummel, the Supreme Court considered 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. In that case, the appellant received a
life sentence because he 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 this case, the offenses committed by Appellant—tampering with physical evidence and
possession of a controlled substance—are certainly no less serious than the combination of
offenses committed by the appellant in Rummel, while Appellant’s thirty year and twenty
year sentences are far less severe than the life sentence upheld by the Supreme Court in
Rummell.        Thus, it is reasonable to conclude that if the sentence in Rummell is not
constitutionally disproportionate, neither are the sentences assessed against Appellant in this
case. In his brief, Appellant makes a conclusory statement that his thirty year and twenty year
sentences are grossly disproportionate, but cites to no authority to support this contention. See
TEX. R. APP. P. 38.1(i) (“[t]he brief must contain a clear and concise argument for the
contentions made, with appropriate citations to the authorities…”). Because we do not conclude
that Appellant’s sentences are disproportionate to his crimes, 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 September 20, 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

                                        SEPTEMBER 20, 2017


                                         NO. 12-16-00323-CR


                                        CARL DONNELL,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 369th District Court
                    of Anderson County, Texas (Tr.Ct.No. 369CR-16-32686)

                        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.
