                                       NO. 12-17-00197-CV

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

                                                        §       APPEAL FROM THE
IN THE MATTER OF P.D.W.,
                                                        §       COUNTY COURT AT LAW
A JUVENILE
                                                        §       ANDERSON COUNTY, TEXAS

                                       MEMORANDUM OPINION
       P.D.W., a juvenile, appeals from the trial court’s order committing him to the Texas
Juvenile Justice Department (TJJD). In one issue, Appellant argues that his disposition is grossly
disproportionate to his offense and not in his best interest. We affirm.


                                                BACKGROUND
       At his original adjudication hearing, P.D.W. was found to have engaged in delinquent
conduct by grabbing his mother’s breast and sexual organ, pinning her to the bed, stating that he
wanted to have sex with her, and threatening her by saying that she would have sex with him one
way or another. Had he been an adult, this conduct could have constituted a second degree
felony.1 The trial court ordered that P.D.W. be placed on probation until his eighteenth birthday
and admitted to G4S Youth Services until he successfully completed their program. P.D.W. was
unsuccessfully discharged from that program after eleven months.
       The State filed a motion to modify the disposition, and P.D.W. was subsequently placed
at Grayson County Juvenile Services Bootcamp Sex Offender Program. He was unsuccessfully
discharged from that program after about eight months. The State filed another motion to
modify the disposition. After a hearing, the trial court ordered P.D.W. committed to TJJD. This
appeal followed.


       1
           See TEX. PENAL CODE ANN. §§ 15.01(a), (d) (West 2011); 22.011(a), (f) (West Supp. 2017).
                               CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, P.D.W. argues that the trial court violated the constitutional prohibition
against cruel and unusual punishment by ordering him committed to TJJD. See U.S. CONST.
amend. VIII; TEX. CONST. art. I, § 13. Specifically, he contends that the disposition 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 make any objection in the trial court regarding the
constitutionality of his disposition. Therefore, any error in this regard has been forfeited. See
Solis, 945 S.W.2d at 301-02; see also Rhoades, 934 S.W.2d at 120; Curry, 910 S.W.2d at 497.
Moreover, after considering P.D.W.’s issue on its merits, we conclude that the disposition 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. 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




                                                 2
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, P.D.W. was adjudicated as having engaged in conduct that could constitute
attempted sexual assault. The trial court placed him on probation until his eighteenth birthday.
After finding that P.D.W. violated a condition of his probation, the trial court ordered him
committed to TJJD. Commitment of a juvenile who engaged in felonious conduct to TJJD after a
subsequent probation violation is authorized under the juvenile justice code. See TEX. FAM.
CODE ANN. § 54.05(f) (West Supp. 2017). Therefore, the commitment here 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.
       Nonetheless, Appellant contends that commitment to TJJD is a grossly disproportionate
penalty considering his circumstances and best interests. 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 disposition is 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 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. 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,



                                                 3
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, P.D.W.’s conduct was more severe than the combination of offenses
committed by the appellant in Rummel, yet P.D.W.’s disposition was far less severe than a life
sentence like that upheld by the Supreme Court in Rummel. P.D.W. was committed to TJJD for
only about seven months until his eighteenth birthday. See TEX. FAM. CODE ANN. § 54.05(b)
(West Supp. 2017) (disposition expires on eighteenth birthday).            Thus, it is reasonable to
conclude that if the sentence in Rummel was not unconstitutionally disproportionate, then
neither is P.D.W.’s disposition in this case. 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. Consequently, we cannot conclude that the trial court erred
by making a grossly disproportionate disposition in this case.
        Nor can we conclude that the trial court’s disposition is in error because it is not in P.D.W.’s
best interest. In some parts of the family code, the best interests of children are paramount. But in
the juvenile justice code, the best interests of children who engage in serious and repeated delinquent
conduct are superseded to the extent they conflict with public safety. In re J.P., 136 S.W.3d 629,
633 (Tex. 2004). When a juvenile commits a felony and subsequently violates a condition of his
probation, the code allows a trial court to decline giving him third and fourth chances. Id. A trial
court’s decision to commit a child to TJJD for a probation violation is subject to review for abuse
of discretion. Id. at 632.
        Here, the evidence at the modification hearing showed that although the State pursued
only one count of attempted sexual assault by P.D.W., he had attempted to sexually assault his
mother on several occasions. He also disclosed in treatment that he had repeatedly attempted to
force sexual behaviors, such as grabbing and groping, onto girls his age. P.D.W. had been in
behavioral treatment intermittently since age four. His treatment records showed a pattern and
progression of assaultive, abusive, aggressive, and sexually inappropriate behavior.             While
P.D.W. was at the Grayson County facility, he showed a pattern of disrespecting the staff and his
peers, making racial slurs directed at the staff and his peers, and consistently and intentionally
breaking the rules. P.D.W. seemed to understand the lessons he was taught in his counseling
sessions, but he failed to apply those skills to his behavior.



                                                   4
         After hearing the evidence and arguments of the parties, the trial court found that (1)
P.D.W. was in need of rehabilitation, (2) action was required to protect P.D.W. and the public,
(3) P.D.W. required a structured therapeutic environment to meet his needs and the needs of the
community, and (4) the State made and exceeded all reasonable efforts to establish a least
restrictive environment for P.D.W. Under the facts and circumstances of this case, we conclude
that the trial court did not abuse its discretion by modifying the previous disposition order to
commit P.D.W. to TJJD. See id. Accordingly, we overrule Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s order committing
P.D.W. to TJJD.

                                                                 GREG NEELEY
                                                                    Justice



Opinion delivered December 13, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          5
                                    COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                          DECEMBER 13, 2017


                                          NO. 12-17-00197-CV


                            IN THE MATTER OF P.D.W., A JUVENILE


                                 Appeal from the County Court at Law
                            of Anderson County, Texas (Tr.Ct.No. J15-03)

                        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
order of the trial court.
                        It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s order committing P.D.W. to TJJD 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.
