                                   NOS. 12-09-00444-CR
                                        12-09-00445-CR
                                        12-09-00446-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

JOHN WESTLEY TURNER, JR.,                              '             APPEAL FROM THE 349TH
APPELLANT

V.                                                     '             JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                               '             HOUSTON COUNTY, TEXAS


                                       MEMORANDUM OPINION
          John Westley Turner, Jr. appeals his convictions for theft, for which he was sentenced to
imprisonment for two years, forgery, for which he was sentenced to imprisonment for two years,
and retaliation, for which he was sentenced for imprisonment for fifteen years. In one issue,
Appellant contends that the sentences he received amount to cruel and unusual punishment. We
affirm.


                                               BACKGROUND
          Appellant was charged by separate indictments with theft of between $500.00 and
$1,500.00 from an elderly individual, forgery, and retaliation. Appellant pleaded “not guilty,”
and the matter proceeded to a jury trial. Ultimately, the jury found Appellant “guilty” as charged
in each cause. Thereafter, the trial court sentenced Appellant to imprisonment for two years for
theft, two years for forgery, and fifteen years for retaliation.1 This appeal followed.


                                   CRUEL AND UNUSUAL PUNISHMENT



          1
           The State filed notice of its intent to seek habitual punishment pursuant to Texas Penal Code, section
12.42. At his trial on punishment, Appellant pleaded “true” to a prior felony conviction for possession of a
controlled substance.
                                                       1
       In his sole issue, Appellant argues that his sentences amount 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, waived such issues on appeal. 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); TEX R. APP. P. 33.1.      However, even absent waiver, we conclude that the
sentences about which Appellant complains did 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 theft of between $500.00 and $1,500.00 from an elderly individual,
the punishment range for which is one hundred eighty days to two years. See TEX. PENAL CODE
ANN. §§ 12.35(a), 31.03(a), (e)(3), (f)(3)(A) (Vernon Supp. 2010). Appellant was further
convicted of forgery, the punishment range for which is one hundred eighty days to two years.
See TEX. PENAL CODE ANN. §§ 12.35(a), 32.21(b), (d) (Vernon Supp. 2010). Finally, Appellant
was convicted of retaliation, the punishment range for which, considering Appellant’s plea of
“true” to a prior felony conviction, is two to twenty years.        See TEX. PENAL CODE ANN.
§§ 12.33(a), 12.42(a)(3), 36.06(a)(1)(A), (c) (Vernon Supp. 2010). In each instance, the sentence
imposed by the trial court falls within the range set forth by the legislature. Therefore, the
punishments are 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.),


                                                2
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 sentences are 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
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 offenses committed by Appellant––theft of between $500.00 and
$1,500.00 from an elderly person, forgery, and retaliation––were each more serious than any of
the offenses committed by the appellant in Rummel, while none of Appellant’s sentences are as
severe as the life sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the
sentence in Rummel was not unconstitutionally disproportionate, then neither are the sentences
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 in each
cause.


                                                                  JAMES T. WORTHEN
                                                                     Chief Justice


Opinion delivered March 31, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)

                                                           3
