                                       NO. 12-17-00152-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

WALTER REED,                                            §       APPEAL FROM THE 349TH
APPELLANT

V.                                                      §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                §       HOUSTON COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Walter Reed appeals his sentence following the revocation of his community supervision.
In a single issue, Appellant argues that his sentence was disproportionate to the crime for which
he was convicted. We affirm.


                                                BACKGROUND
        Appellant was charged by indictment with theft in an amount of $1,500 or more but less
than $20,000.1 Pursuant to a plea agreement, Appellant pleaded “guilty” and the trial court
sentenced Appellant to deferred adjudication community supervision for five years. In 2014,
Appellant’s deferred adjudication community supervision was revoked. He was sentenced to
imprisonment for two years, but the sentence was suspended and Appellant was placed on
community supervision for five years.
        On December 21, 2016, the State filed a motion to revoke Appellant’s community
supervision and alleged he had violated certain conditions thereof. On May 1, 2017, the trial
court conducted a hearing on the State’s motion. Appellant pleaded “true” to several of the
allegations in the State’s motion. The trial court found all of the State’s allegations to be “true,”

        1
           See Act of May 9, 2011, 82d Leg., R.S., ch. 120 § 1, 2011 Tex. Sess. Law Serv. 449, 609 (West) (current
version at TEX. PENAL CODE ANN. § 31.03 (West Supp. 2016)).
revoked Appellant’s community supervision, and sentenced him to imprisonment for twenty
months. This appeal followed.


                               CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the twenty month sentence imposed by the trial
court amounts to cruel and unusual punishment. However, Appellant made no timely objection
to the trial court raising the issue of cruel and unusual punishment and has, therefore, failed to
preserve any such error. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)
(waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497
(Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); see
also TEX R. APP. P. 33.1; 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[]”). 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. 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 the case at hand, Appellant was convicted of a state jail felony, the punishment range
for which is between 180 days and two years. See TEX. PENAL CODE ANN. § 12.35 (West Supp.




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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 “grossly disproportionate.” Under
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), 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 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, 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—theft in an amount of $1,500 or
more but less than $20,000—is more serious than the combination of offenses committed by the
appellant in Rummel, while Appellant’s twenty month sentence is far less severe than the life
sentence 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



                                                 3
assessed against Appellant in the present case. 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. Appellant’s sole issue is overruled.


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

                                                                 BRIAN HOYLE
                                                                    Justice


Opinion delivered September 20, 2017.
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

                                        SEPTEMBER 20, 2017


                                         NO. 12-17-00152-CR


                                        WALTER REED,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 12CR-005)

                        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.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
