                                   NO. 12-18-00089-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 RONALD JAY COLLINS,                               §       APPEAL FROM THE 349TH
 APPELLANT

 V.                                                §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §       HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Ronald Jay Collins appeals his conviction for possession of a prohibited item in a
correctional facility. In one issue, Appellant argues that his sentence is grossly disproportionate
to his offense. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with possession of a prohibited item in a correctional
facility, enhanced by four prior felony offenses. He pleaded “not guilty” to the offense, and the
matter proceeded to a jury trial. The jury found Appellant “guilty” as charged. Appellant pleaded
“true” to the enhancement paragraphs, and the jury assessed his punishment at imprisonment for
thirty years. 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 thirty years. See
U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. Specifically, he contends that his sentence is
grossly disproportionate to his offense, considering the facts and circumstances of the offense and
compared 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. When a defendant fails to object to the disproportionality of his sentence
in the trial court, he forfeits such error on appeal. See TEX. R. APP. P. 33.1; 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 sentence.
Therefore, any error in this regard has been forfeited. See id.
       However, despite Appellant’s failure to preserve error, we conclude that his sentence 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 assessed 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 possession of a prohibited item in a correctional
facility, enhanced, the punishment range for which is twenty-five to ninety-nine years or life in
prison. See TEX. PENAL CODE ANN. §§ 12.42(d), 38.11(d)(2), (g) (West Supp. 2018). 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. See Harris, 656 S.W.2d at
486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.




                                                  2
        Nevertheless, Appellant contends that his sentence is grossly disproportionate to his
offense because of his psychological history and because other offenders have received much
shorter sentences for the same offense committed with a “much more serious prohibited item.”1
We disagree.
        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 was modified by Texas courts and the Fifth Circuit Court
of Appeals after 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 second and third 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.). This threshold determination is made by comparing the gravity of the
offense to the severity of the sentence. See McGruder, 954 F.2d at 316. Thus, Appellant’s
psychological history and the sentences received by others are not factors that we consider in
determining whether his sentence is grossly disproportionate. See id.
        In determining whether Appellant’s sentence is grossly disproportionate, 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 considered 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, 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.


        1
          Appellant was convicted of possessing in the Houston County Jail a deadly weapon, specifically, a piece of
metal with a point on one end.


                                                         3
         In the case at hand, the charged offense of possession of a prohibited item in a correctional
facility, along with Appellant’s four enhancement offenses—burglary of a building, felony
possession of a controlled substance, and two cases of engaging in organized criminal activity, are
more serious than the combination of offenses committed by the appellant in Rummel, yet
Appellant’s thirty-year sentence is less severe than 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 here. 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 December 4, 2018.
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

                                         DECEMBER 4, 2018


                                         NO. 12-18-00089-CR


                                     RONALD JAY COLLINS,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 17CR-191)

                       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.
