                                  NO. 12-19-00029-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 DAWN JEANNETTE DARNELL,                          §       APPEAL FROM THE 3RD
 APPELLANT

 V.                                               §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §       ANDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Dawn Jeannette Darnell appeals her conviction for possession of a penalty group one
controlled substance in an amount of one gram or more but less than four grams. In one issue,
Appellant argues that her sentence constitutes cruel and unusual punishment. We affirm.


                                          BACKGROUND
       In 2013, Appellant was charged by indictment with the third degree felony offense of
possession of cocaine in an amount of one gram or more but less than four grams. Appellant
pleaded “guilty” to the offense. In 2014, the trial court found Appellant guilty of the charged
offense and sentenced her to ten years of imprisonment, but suspended her sentence and placed
her on community supervision for seven years. The trial court modified Appellant’s community
supervision twice because she failed to abide by the terms of her supervision. In 2018, the State
filed a motion to revoke Appellant’s community supervision because she again failed to comply
with the terms of her community supervision in several respects. Appellant pleaded “true” to one
of the allegations that she used marijuana and methamphetamine while on community supervision,
but “not true” to the remaining allegations. After a hearing, the trial court found several of these
allegations to be true, revoked Appellant’s community supervision, and sentenced her to eight
years of imprisonment. This appeal followed.
                               CRUEL AND UNUSUAL PUNISHMENT
       In her sole issue, Appellant argues that the trial court violated the constitutional prohibition
against cruel and unusual punishment by sentencing her to imprisonment for eight years. See U.S.
CONST. amend. VIII; TEX. CONST. art. I, § 13. Specifically, she contends that her sentence is
grossly disproportionate to her 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 first argues that Appellant failed to preserve her error for our review by a timely
objection or motion in the trial court. When a defendant fails to object to the disproportionality of
her sentence in the trial court, she 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 her sentence. Therefore, any error in this regard is forfeited. See id.
       The State argues in the alternative that Appellant’s sentence is not grossly disproportionate
to her offense. We agree and conclude that even if Appellant preserved error, her 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.



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        In this case, Appellant was convicted of the third degree felony offense of possession of
cocaine in an amount of one gram or more but less than four grams, the punishment range for
which is two to ten years in prison. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West
2017); TEX. PENAL CODE ANN. § 12.34 (West 2019). Thus, the eight year 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.
        Nevertheless, Appellant contends that her sentence is grossly disproportionate to her
offense because she completed a substantial portion of her community supervision and other
offenders received shorter sentences for the same offense. 1 We disagree.
        In reviewing this case, we first consider whether Appellant’s sentence is “grossly
disproportionate” to her offense. Under the three-part test originally set forth in Solem, 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.
        In determining whether Appellant’s sentence is grossly disproportionate, 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 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



        1
           Although we decide this case without considering the sentences of other offenders, we note that Appellant
offers no support for her contention that other offenders received shorter sentences for the same offense.




                                                         3
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, Appellant’s offense of possession of a penalty group one controlled
substance in an amount of one or more grams but less than four grams is at least as serious as the
combination of offenses committed by the appellant in Rummel, yet Appellant’s eight 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, neither is
the sentence assessed against Appellant here. Therefore, the threshold test has not been satisfied,
and 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.
                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered May 31, 2019.
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

                                              MAY 31, 2019


                                         NO. 12-19-00029-CR


                                DAWN JEANNETTE DARNELL,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 31532)

                       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.
