                                   NO. 12-18-00199-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 CHASTITY DARE JERNIGAN,                           §       APPEAL FROM THE 114TH
 APPELLANT

 V.                                                §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §       SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Chastity Dare Jernigan appeals her conviction for aggravated robbery. In one issue,
Appellant argues that her sentence constitutes cruel and unusual punishment. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with aggravated robbery. Pursuant to a plea
agreement with the State, she pleaded “guilty” to the offense, and the trial court deferred a finding
of guilt and placed her on community supervision for a term of ten years. Subsequently, the State
filed a motion to adjudicate Appellant’s guilt. At a hearing on the motion, Appellant pleaded
“true” to all eleven alleged violations of her community supervision conditions. The trial court
found Appellant “guilty,” revoked her community supervision, and assessed her punishment at
imprisonment for thirty years. 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 thirty years. See U.S.
CONST. amend. VIII; TEX. CONST. art. I, § 13. Specifically, she contends that her sentence is
“disproportionate with the technical violations” of her community supervision conditions. 1 She
further argues that her punishment is cruel and unusual because she has no prior criminal history
and the victim recommended that she serve no prison time.
         The State 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 has been forfeited. See id.
         Furthermore, even if Appellant preserved her 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 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.
         In this case, Appellant was convicted of aggravated robbery, the punishment range for
which is five to ninety-nine years or life in prison. 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


         1
           The violations include failure to report to her supervision officer, changing residences without notifying her
supervision officer, possessing and consuming cocaine, failure to maintain employment, failure to pay fees and
restitution, and failure to attend alcohol and drug treatment and alcoholics and narcotics anonymous meetings.




                                                           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 contends that her sentence is grossly disproportionate to her
offense because her lack of prior criminal history and the victim’s assessment that Appellant is
less culpable than her codefendants indicate that she is not a threat to society. We disagree.
       Under the three-part test originally set forth in Solem v. Helm, 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. Estell. 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. 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.
       Here, despite the victim’s assertions that Appellant’s actions were less culpable than those
of her codefendants, her offense is more serious than the combination of offenses committed by
the appellant in Rummel. The record indicates that Appellant rented a hotel room and lured the



                                                 3
victim inside under false pretenses. Once the victim was inside, three individuals emerged,
severely beat and stabbed him, and stole his belongings. At the plea hearing, Appellant admitted
that she kicked, punched, and stole from the victim. In explaining to the trial court why community
supervision was recommended in the case, the State noted that the victim was reluctant to testify
because of the circumstances that led him to enter the hotel room. Additionally, according to the
victim, Appellant and one other codefendant were less culpable than the other two. Therefore,
although the victim was adamant that the two most culpable codefendants spend time in prison, he
was “okay” with Appellant and the fourth codefendant being placed on community supervision.
Later, at the hearing on the motion to adjudicate, Appellant retracted her admission that she
physically harmed the victim but admitted that she rented the room, knew the plan, and did nothing
to stop it.
         Regardless of whether Appellant participated in the physical attack on the victim, her
offense is more serious than the combination of offenses committed by the appellant in Rummel,
yet her thirty-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, then neither is the sentence assessed against Appellant here.
Therefore, because 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. Accordingly, we overrule Appellant’s sole issue.


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

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered February 6, 2019.
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

                                          FEBRUARY 6, 2019


                                         NO. 12-18-00199-CR


                                  CHASTITY DARE JERNIGAN,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-1274-17)

                       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.
