                                 NO. 12-09-00339-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

MONTRELL HIGH,                                    '           APPEAL FROM THE 7TH
APPELLANT

V.                                                '           JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                          '           SMITH COUNTY, TEXAS


                                   MEMORANDUM OPINION
       Montrell High appeals his conviction for engaging in organized criminal activity. In two
issues, he argues that the trial court’s sentence is disproportionate to the crime committed under
the United States and Texas constitutions. We affirm.


                                           BACKGROUND
       Appellant, a member of a criminal street gang, was at the helm of a vicious assault against
the victim. Appellant and his friends beat the victim so severely that he lost his senses of taste and
smell. It was not until the victim’s daughter covered him up that the assault ceased. Appellant
was arrested and indicted for engaging in organized criminal activity, a first degree felony. Along
with other codefendants involved in the assault, Appellant entered a nonnegotiated open plea of
guilty. The trial court accepted Appellant’s plea, and thereafter sentenced him to twenty-five
years of imprisonment.




                                 DISPROPORTIONATE SENTENCE
       In his first issue, Appellant contends that the trial court’s sentence was disproportionate to

                                                  1
the crime committed and violates the Eighth Amendment to the United States Constitution. In his
second issue, he argues that the sentence is disproportionate to the crime committed when
analyzed under article I, section 13 of the Texas Constitution.1
         Appellant did not object to his sentence when it was assessed. Because Appellant did not
object in the trial court, he has not preserved his complaint for appellate review. See TEX. R. APP.
P. 33.1(a); Robertson v. State, 245 S.W.3d 545, 549 (Tex. App.–Tyler 2007, pet. ref’d) (holding
failure to object waived United States and Texas constitutional cruel and unusual punishment
arguments).
         But, even if Appellant had preserved this complaint for review, he still would not prevail.
Generally, a sentence authorized by statute within the statutory range will not be considered cruel
and unusual punishment. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983).
Appellant was convicted of engaging in organized criminal activity, a first degree felony, with a
possible punishment of life or any term of not more than ninety-nine years or less than five years.
See TEX. PENAL CODE ANN. §§ 12.32 (Vernon Supp. 2009); 71.02(a)(1), (b) (Vernon Supp. 2009).
He was sentenced to twenty-five years of imprisonment, which is within the statutory range. See
Smith v. State, 256 S.W.3d 341, 343-44 (Tex. App.–San Antonio 2007, no pet.) (holding
twenty-five year sentence for organized criminal activity passed constitutional muster).
         Appellant concedes that his punishment is within the statutory range, but he nevertheless
contends it is grossly disproportionate to the facts of this case in violation of the United States and
Texas constitutions. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13; Solem v. Helm, 463
U.S. 277, 284, 103 S. Ct. 3001, 3006, 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. Solem, 463 U.S. at 292, 103 S. Ct. at 3011.
Unless Appellant establishes that his sentence is grossly disproportionate to his crime, we need not
address the second and third criteria set out in Solem. See McGruder v. Puckett, 954 F.2d 313,
316 (5th Cir. 1992); see also Robertson, 245 S.W.3d at 549.
         Appellant argues that his sentence is disproportionate to that of his codefendants because at

         1
           Texas courts have consistently concluded that there is no significant difference between the United States
and Texas constitutional provisions prohibiting cruel and unusual punishment, and so we analyze both of Appellant’s
issues together. See, e.g., Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997) (comparing Texas
Constitution article I, section 13 with United States Constitution amendment VIII).


                                                         2
the time of Appellant’s sentencing, two of his codefendants received fifteen years of
imprisonment, while he received twenty-five years of imprisonment. The different sentences
received by Appellant’s codefendants do not render Appellant’s lengthier sentence cruel and
unusual. See Gonzales v. State, 501 S.W.2d 644, 646 (Tex. Crim. App. 1973).
         Appellant also implicitly asserts that the disparate sentences arose from the trial court’s
displeasure with defense counsel’s pervasive tardiness from scheduled court hearings. Although
the trial court voiced displeasure with Appellant’s counsel’s pattern of tardiness and absence, we
see nothing in the record to support that this affected Appellant’s sentence.
         Appellant next contends that the length of his sentence is grossly disproportionate to the
nature of the crime committed. Specifically, Appellant claims that engaging in an aggravated
assault in furtherance of his gang activity does not warrant the sentence he received.           In
determining whether Appellant’s sentence is grossly disproportionate, we are guided by the
holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). After
considering the facts of the instant case in light of Rummel, we conclude that Appellant’s sentence
was not unconstitutionally disproportionate. See id., 445 U.S. at 266, 100 S. Ct. at 1134-35
(holding that life sentence is not cruel and unusual punishment for obtaining $120.75 by false
pretenses where appellant had a prior felony conviction for fraudulent use of credit card to obtain
$80 worth of goods or services and another for passing a forged check in amount of $28.36).
Absent a threshold showing of disproportionality, we need not address the second and third Solem
criteria. Therefore, we cannot conclude that Appellant’s sentence constitutes cruel and unusual
punishment. Both of Appellant’s issues are overruled.


                                                    DISPOSITION
         We affirm the judgment of the trial court.




                                                                  BRIAN HOYLE
                                                                     Justice



Opinion delivered July 21, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


                                                           3
(DO NOT PUBLISH)




       4
