                                         NO. 12-16-00300-CR

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

TIFFANY WALNOHA,                                          §        APPEAL FROM THE 349TH
APPELLANT

V.                                                        §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                  §        HOUSTON COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Tiffany Walnoha appeals her sentence following the revocation of her community
supervision. In one issue, Appellant argues that her sentence was disproportionate to the crime
for which she was convicted. We affirm.


                                                  BACKGROUND
       Appellant was charged by indictment with the second degree felonies of arson and
burglary of a habitation.1 Pursuant to a plea bargain, Appellant pleaded “guilty” and the trial
court sentenced her to ten years of deferred adjudication community supervision.
       Subsequently, the State filed a motion to proceed to final adjudication, which included a
request to revoke Appellant’s community supervision. Appellant pleaded “not true” to the
allegations in the motion. Following a hearing, the trial court found the allegations in the State’s
motion to be “true,” revoked Appellant’s community supervision, and sentenced her to
imprisonment for seven years.2




       1
           See TEX. PENAL CODE ANN. §§ 28.02, 30.02 (West 2011).
       2
           The trial court sentenced Appellant to imprisonment for seven years for each count to run concurrently.
                               CRUEL AND UNUSUAL PUNISHMENT
       In her sole issue, Appellant argues that the seven year 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 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 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 arson and burglary of a habitation, the
punishment range for which is not less than two years but no more than twenty years. See TEX.
PENAL CODE ANN. §§ 12.33(a), 28.02, 30.02 (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 contends that her 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.



                                                 2
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 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 offenses committed by Appellant—arson and burglary of a
habitation—are each far more serious than the combination of offenses committed by the
appellant in Rummel, while Appellant’s seven year sentence is 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, neither is the sentence 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.




                                                3
                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered August 9, 2017.
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

                                            AUGUST 9, 2017


                                         NO. 12-16-00300-CR


                                       TIFFANY WALNOHA,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                             Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 14CR-048)

                        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.
