                                 NO. 12-17-00241-CR

                         IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

STEPHYN CORNELL PRINE,                          §      APPEAL FROM THE 3RD
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Stephyn Cornell Prine appeals his convictions for continuous sexual abuse of a child and
sexual assault of a child. In one issue, he argues that his punishment is excessive and grossly
disproportionate to the crimes for which he was convicted. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with one count of continuous sexual abuse of a
child, a first degree felony punishable by not less than twenty-five years but not more than
ninety-nine years or life imprisonment, and two counts of sexual assault of a child, a second
degree felony, punishable by not less than two years but not more than twenty years
imprisonment.
       Appellant entered a plea of “not guilty” and the case proceeded to a jury trial. The jury
returned a verdict of “guilty” on the continuous sexual abuse of a child count and on one of the
sexual assault of a child counts.       The jury assessed punishment at ninety-nine years
imprisonment on the continuous sexual abuse count, and twenty years imprisonment on the
sexual assault of a child count, to run concurrently. This appeal followed.
                               CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the ninety-nine and twenty year sentences
recommended by the jury and imposed by the trial court are grossly disproportionate to the
crimes committed and amount to cruel and unusual punishment. “To preserve for appellate
review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual
punishment, a defendant must present to the trial court a timely request, objection, or motion
stating the specific grounds for the ruling desired.” Kim v. State, 283 S.W.3d 473, 475 (Tex.
App.—Fort Worth 2009, pet. ref’d); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.
App. 1996) (waiver of complaint of cruel and unusual punishment under the Texas Constitution
because defendant presented his argument for first time on appeal); Curry v. State, 910 S.W.2d
490, 497 (Tex. Crim. App. 1995) (defendant waived complaint that statute violated his rights
under the United States Constitution when raised for first time on appeal); Mays v. State, 285
S.W.3d 884, 889 (Tex. Crim. App. 2009) (“Preservation of error is a systemic requirement that a
first-level appellate court should ordinarily review on its own motion[;] ... it [is] incumbent upon
the [c]ourt itself to take up error preservation as a threshold issue.”); TEX. R. APP. R. 33.1. A
review of the record indicates that Appellant did not object to the constitutionality of his
sentence at the trial court level, and has, therefore, failed to preserve error for appellate review.
See Kim, 283 S.W.3d at 475; see also Rhoades, 934 S.W.2d at 120; Curry, 910 S.W.2d at 497;
Mays, 285 S.W.3d at 889; TEX. R. APP. P. 33.1.
       Despite Appellant’s failure to preserve error, we conclude his sentences do 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 a 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.



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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 continuous sexual abuse of a child and sexual assault of a child, the
punishment ranges for which are twenty-five to ninety-nine years, or life imprisonment and two
to twenty years imprisonment, respectively. See TEX. PENAL CODE ANN. §§ 12.33(a), 21.02(h),
22.011(f) (West 2011 and West Supp. 2017). Thus, the sentences recommended by the jury and
imposed by the trial court fall within the range set forth by the legislature. Therefore, the
punishment 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.
       Nevertheless, Appellant urges this 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. Id., 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 are guided by the holding in Rummel v. Estelle in making the threshold
determination of whether Appellant’s sentences are grossly disproportionate to his crimes. 445
U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered
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, 100 S. Ct. at 1135. In that case, the appellant received a life
sentence because he had two prior felony convictions—one for fraudulent use of a credit card to
obtain $80 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




                                                 3
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 this case, the offenses committed by Appellant—continuous sexual abuse of a child
and sexual assault of a child—are certainly more serious than the combination of offenses
committed by the appellant in Rummel, while Appellant’s ninety-nine year and twenty year
sentences are no more severe than the life sentence upheld by the Supreme Court in Rummell.
Thus, it is reasonable to conclude that if the sentence in Rummell is not constitutionally
disproportionate, neither are the sentences assessed against Appellant in this case. Because we
do not conclude that Appellant’s sentences are disproportionate to his crimes, 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.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered April 11, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 11, 2018


                                         NO. 12-17-00241-CR


                                  STEPHYN CORNELL PRINE,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                  Appeal from the 3rd District Court
                      of Anderson County, Texas (Tr.Ct.No. 3CR-16-32998)

                        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.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
