                                  NO. 12-18-00336-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 KAMERON HEATH PRINE,                             §      APPEAL FROM THE 3RD
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      ANDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Kameron Heath Prine appeals his convictions for continuous sexual abuse of a child and
indecency with a child by contact. In one issue, Appellant argues that his sentences constitute
cruel and unusual punishment. We affirm.


                                         BACKGROUND
       Appellant was indicted for continuous sexual abuse of a child and indecency with a child
by sexual contact. Appellant pleaded “not guilty” to the offenses and the matter proceeded to a
jury trial. The jury found Appellant guilty of both offenses. After a punishment hearing, the trial
court sentenced Appellant to forty years of imprisonment for the continuous sexual abuse offense
and twenty years for the indecency with a child offense. This appeal followed.


                              CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the forty year and twenty year sentences 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. P. 33.1. A review of the record shows that Appellant lodged
no objection to the constitutionality of his sentences 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.
        However, 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,
666–667, 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. Appellant was convicted of
continuous sexual abuse of a child, a first-degree felony with a punishment range from twenty-five
years to ninety-nine years or life imprisonment. See TEX. PENAL CODE ANN. § 21.02(h) (West
2019). Appellant was also convicted of indecency with a child by contact, a second-degree felony
with a punishment range from two years to twenty years of imprisonment. See id. §§ 12.33(a);
21.11(d) (West 2019). Thus, the sentences imposed by the trial court fall within the range set forth




                                                   2
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 the 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 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 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
indecency with a child by contact—are even more serious than the combination of offenses
committed by the appellant in Rummel, while Appellant’s forty year and twenty year sentences
are 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 is not constitutionally disproportionate,



                                                 3
neither are the sentences assessed against Appellant in this case. In his brief, Appellant makes a
conclusory statement that his sentences are grossly disproportionate, stating that other sentences
for more serious crimes resulted in significantly less harsh sentences than Appellant received.
However, he cites to no authority to support this contention. See TEX. R. APP. P. 38.1(i) (“[t]he
brief must contain a clear and concise argument for the contentions made, with appropriate
citations to the authorities. . . .”). Because we do not conclude that Appellant’s sentences are
disproportionate to his crime, 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 judgment of the trial court.

                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered January 15, 2020.
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

                                          JANUARY 15, 2020


                                         NO. 12-18-00336-CR


                                    KAMERON HEATH PRINE,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 3rd District Court
                     of Anderson County, Texas (Tr.Ct.No. 3CR-16-32999)

                       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.
