                                  NO. 12-16-00245-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JIMMY ANDREW DAVIS, JR.,                        §     APPEAL FROM THE 3RD
APPELLANT

V.                                              §     JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §     ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
         Jimmy Andrew Davis, Jr. appeals his convictions for aggravated assault causing serious
bodily injury and kidnapping. In one issue, Appellant argues that his sentences are grossly
disproportionate to his offenses. We affirm.


                                         BACKGROUND
         Appellant was charged by indictment with aggravated assault causing serious bodily
injury and aggravated kidnapping. He pleaded “not guilty,” and the matter proceeded to a jury
trial.
         At trial, the evidence showed that Ashley Webb was homeless and Appellant allowed her
to stay at a mobile home he shared with two other roommates. After Webb refused Appellant’s
repeated sexual advances, Appellant struck Webb with his fist, rendering her unconscious.
When Webb awoke, her face was so swollen that she could not talk, and two of her teeth were
detached and lying inside her mouth. Thereafter, Appellant kept Webb in a bedroom, locked
from the outside, and told her that she could not leave. Eventually, after waking up in the room
and seeing Appellant sleeping, Webb found a hidden key to the door and escaped.
         Webb was subsequently treated for a fractured jaw and shattered cheekbone. Doctors
performed reconstructive surgery to her face and mouth and placed titanium plates in the right
side of her face. Webb’s jaw was wired shut for six months. At the time of trial, she was still
unable to fully open her mouth.
       Ultimately, the jury found Appellant “guilty” of aggravated assault causing serious bodily
injury and kidnapping, enhanced by two prior felonies, and assessed his punishment at
imprisonment for life in each case. This appeal followed.


                                CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the trial court violated the constitutional
prohibition against cruel and unusual punishment by sentencing him to imprisonment for life.
See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. Specifically, he contends that a life
sentence is grossly disproportionate to his offense, considering the facts and circumstances of the
offense and in comparison with sentences imposed on other defendants for the same offense. See
Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983).
       The State argues that Appellant failed to preserve error for our review by a timely objection
or motion in the trial court. See TEX. R. APP. P. 33.1. When a defendant fails to object to the
disproportionality of his sentence in the trial court, he forfeits such error on appeal. See Solis v.
State, 945 S.W.2d 300, 301-02 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); see also
Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (Texas cruel or unusual
punishment error forfeited where defendant failed to object); Curry v. State, 910 S.W.2d 490,
497 (Tex. Crim. App. 1995) (Eighth Amendment cruel and unusual punishment error not
preserved where defendant failed to object).
       Here, Appellant did not object in the trial court to the disproportionality of his sentences.
Therefore, any error in this regard has been forfeited. See Solis, 945 S.W.2d at 301-02; see also
Rhoades, 934 at 120; Curry, 910 S.W.2d at 497. But even despite Appellant’s failure to
preserve error, we conclude that the sentence about which he complains does 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.




                                                 2
Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010) (citing Robinson v. California,
370 U.S. 660, 666-67, 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 aggravated assault causing serious bodily injury
and kidnapping, enhanced, the punishment range for which is twenty-five to ninety-nine years or
life in prison. See TEX. PENAL CODE ANN. §§ 12.33(a), 12.34(a), 12.42(d), 20.03, 22.02 (West
2011 & Supp. 2016). Thus, 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 contends that his sentence is “extremely disproportionate.”
Under the three part test originally set forth in Solem v. Helm, 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. 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 first must determine whether Appellant’s sentence is grossly disproportionate. In so
doing, we are guided by the holding in Rummel v. Estelle, 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,



                                                 3
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 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 the case at hand, the offense committed by Appellant—aggravated assault causing
serious bodily injury and kidnapping—is more severe than the combination of offenses
committed by the appellant in Rummel, and Appellant received a life sentence like that 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 the threshold test has not been satisfied,
we need not apply the remaining elements of the Solem test. See McGruder, 954 F.2d at 316; see
also Jackson, 989 S.W.2d at 845-46.
         Accordingly, we overrule Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered August 9, 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

                                            AUGUST 9, 2017


                                         NO. 12-16-00245-CR


                                  JIMMY ANDREW DAVIS, JR.,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 31763)

                        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.
