

NO. 12-01-00360-CR


IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT


TYLER, TEXAS



BILLY COOPER,§
		APPEAL FROM THE 114TH
APPELLANT

V.§
		JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE§
		SMITH COUNTY, TEXAS




PER CURIAM
	Billy Cooper ("Appellant") appeals his conviction for robbery, for which he was sentenced
to imprisonment for twenty years.  Appellant raises one issue on appeal.  We affirm.
	The indictment alleged that Appellant, while in the course of committing theft of property
and with the intent to obtain and maintain control of property owned by Patricia Ward ("Ward"), did
intentionally and knowingly threaten Ward by grabbing, squeezing, or striking her with his hand.  
Appellant initially entered a guilty plea before the court without a plea bargain.  Subsequently, under
local rules, he elected not to accept the trial court's sentence and pleaded guilty to a jury which
assessed his punishment at the maximum of twenty years.
 In his sole issue, Appellant contends that the sentence imposed by the trial court constituted
cruel and unusual punishment under both the Texas and United States Constitutions.  Initially, we
note that Appellant made no objection to the trial court raising the issue of cruel and unusual
punishment and has, therefore, waived such an issue with respect to any alleged violation of his
rights under the Texas Constitution.  See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.
1996); Tex. R. App. P. 33.1.  However, even absent waiver, we conclude that Appellant's sentence
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 pleaded guilty
to robbery.  See Tex. Pen. Code Ann. § 29.02.  The punishment range for such an offense is
between two and twenty years.  See Tex. Pen. Code Ann. § 12.33(a) (Vernon 1994).  Here, the
punishment assessed by the trial court falls within the range set forth by the legislature.  Id.
Therefore, the punishment is not prohibited as cruel, unusual or excessive per se.
	Nonetheless, Appellant urges the Court to perform the three-part test set out 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. (1)  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, to
require a threshold determination that the sentence is grossly disproportionate to the crime before
addressing the remaining elements.  See, e.g., McGruder, 954 F.2d at 316; see also Jackson v. State,
989 S.W.2d 842, 845-46 (Tex. App.-Texarkana 1999, no pet.).
	In determining whether Appellant's sentence is grossly disproportionate, we are guided by
Rummel v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). (2)  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 for
obtaining $120.75 by false pretenses.  Id., 445 U.S. at 266, 100 S. Ct. at 1135.  The 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 1134-135.  After both recognizing the
legislative prerogative to classify offenses as felonies and 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.  Considering Appellant's
sentence in light of the holding in Rummel, the distinction between the two cases is clear.  The
offense of robbery committed by Appellant was more severe than any of the offenses committed by
the appellant in Rummel, while Appellant's twenty-year sentence is less severe than the life sentence
upheld by the Supreme Court.  Thus, it follows 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.
 Accordingly, the judgment of the trial court is affirmed.

Opinion delivered August 30, 2002.
Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.









(DO NOT PUBLISH)
1.  The strict application of the Solem test has been questioned since the Supreme Court rendered its opinion
in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991).  See Simmons, 944 S.W.2d at
15.  The Texarkana Court of Appeals discussed the applicability of Solem in Davis v. State, and observed that five
members of the Supreme Court in Harmelin rejected application of the three-factor test.  Id. (citing Davis, 905
S.W.2d at 664).  However, the court in Davis nevertheless evaluated the sentence under the elements of Solem,
recognizing that seven of the justices in Harmelin still supported an Eighth Amendment prohibition against grossly
disproportionate sentences.  See Davis, 905 S.W.2d at 664 (citing 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), and Lackey v. State, 881 S.W.2d 418,
421 (Tex. App.-Dallas 1994, pet. ref'd).
2.  Incidentally, the Fifth Circuit has referred to Rummel as a "handy guide" to assist in conducting a
proportionality review. See McGruder, 954 F.2d at 317.

