                                 NO. 12-15-00233-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JAMES EDWARD MULLINNIX, III,                   §      APPEAL FROM THE 349TH
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       James Edward Mullinnix, III appeals his conviction for aggravated robbery with a deadly
weapon, for which he was sentenced to imprisonment for seventy years. In two issues, Appellant
argues the evidence is insufficient to support the jury’s verdict and his sentence amounted to
cruel and unusual punishment. We affirm.


                                        BACKGROUND
       Appellant was charged by indictment with aggravated robbery with a deadly weapon and
pleaded “not guilty.” The matter proceeded to a jury trial. The jury found Appellant “guilty” as
charged and assessed his punishment at imprisonment for seventy years.          The trial court
sentenced Appellant accordingly, and this appeal followed.


                                 EVIDENTIARY SUFFICIENCY
       In his first issue, Appellant argues that the evidence is insufficient to support his
conviction for aggravated robbery.
Standard of Review
        The Jackson v. Virginia1 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo
v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a
legal sufficiency challenge is whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is
examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102
S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
        The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.
        In order to demonstrate that Appellant was guilty of aggravated robbery, the State was
required to prove beyond a reasonable doubt that Appellant (1) during the course of committing
a theft,2 (2) and with intent to obtain or maintain control of the property, (3) intentionally or
knowingly threatened or placed another in fear of imminent bodily injury or death, and (4) used
or exhibited a deadly weapon. See TEX. PENAL CODE ANN. §§ 29.02(a), 29.03(a)(2), 31.03
(West 2011 & Supp. 2015).


        1
            443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).
        2
           A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the
property. See TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2015). Appropriation of property is unlawful if it is
without the owner’s effective consent. Id. at §31.03(b) (West Supp. 2015).


                                                         2
Analysis
        In the instant case, David Gross, the victim, testified at trial. Gross testified that he
discovered Appellant and two other men inside a house he owned and that one of the men told
Gross they were “scrapping.” Gross further testified that the men had loaded property of his into
their truck. According to Gross, he followed the men to their truck and attempted to stop them
from leaving. Gross stated that when he reached into the truck to grab the keys, Appellant
brandished a pistol, pointed it in Gross’s face, and twice pulled the trigger.3 Gross further stated
that, at this moment, he was afraid he going to die. Gross testified that Appellant and the other
two men fled the scene and he followed them in his vehicle. Gross further testified that after
Appellant and one of the other men were apprehended by police, he was able to identify some of
his property found in Appellant’s possession––a pocket watch and a fishing lure.
        We have reviewed the record in the light most favorable to the jury’s verdict. Based on
that review, with due consideration given to Gross’s testimony, we conclude that the jury
reasonably could have found beyond a reasonable doubt that Appellant committed aggravated
robbery and, in the course thereof, exhibited a firearm. Therefore, we hold that the evidence is
legally sufficient to support the jury’s verdict. Appellant’s first issue is overruled.


                                  CRUEL AND UNUSUAL PUNISHMENT
        In his second issue, Appellant argues that his seventy year sentence 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.


        3
            A firearm is per se a deadly weapon. Young v. State, 806 S.W.2d 340, 343 n.1 (Tex. App.–Austin 1991,
pet. ref’d).


                                                       3
       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 aggravated robbery with a deadly
weapon, the punishment range for which is five to ninety-nine years, or life. See TEX. PENAL
CODE ANN. §§ 12.32(a), 29.03(b) (West 2011). 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 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. Solem,
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. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L.



                                                4
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 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.
         In the case at hand, the offense committed by Appellant––aggravated robbery with a
deadly weapon––is far more serious than the combination of offenses committed by the appellant
in Rummel, while Appellant’s sentence is no more 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 are the sentences assessed against
Appellant in the case at hand. Therefore, since we do not find the threshold test to be satisfied,
we need not apply the remaining elements of the Solem test. Appellant’s second issue is
overruled.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered July 29, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


                                                          5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 29, 2016


                                         NO. 12-15-00233-CR


                              JAMES EDWARD MULLINNIX, III,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                Appeal from the 349th District Court
                           of Anderson County, Texas (Tr.Ct.No. 31982)

                        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.
