                                  NO. 12-13-00121-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

LESLIE ANN DELTORO,                             §      APPEAL FROM THE 3RD
APPELLANT

V.                                              §      JUDUCIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ANDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Leslie Ann Deltoro appeals her conviction for delivery of between four and two hundred
grams of methamphetamine, for which she was sentenced to imprisonment for thirty years. In one
issue, Appellant argues that her sentence is excessive and is grossly disproportionate to the crime
of which she was convicted. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with delivery of between four and two hundred
grams of methamphetamine. Appellant pleaded “guilty” as charged, and the matter proceeded to
a trial on punishment. Following a trial on punishment, at which Appellant pleaded “true” to
three enhancement paragraphs in the indictment, the trial court sentenced Appellant to
imprisonment for thirty years. This appeal followed.


                               CRUEL AND UNUSUAL PUNISHMENT
       In her sole issue, Appellant argues that her sentence amounts to cruel and unusual
punishment in violation of the United States and Texas constitutions. 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. Even so, we conclude that the sentence about which
Appellant complains does not constitute cruel and unusual punishment.
       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 delivery of between four and two hundred grams of
methamphetamine, the punishment range for which, considering enhancements, is fifteen to
ninety-nine years. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(d), (e) (West
2010); TEX. PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2013). Here, 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.),
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 must first 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. Ed.
2d 382 (1980).     In Rummel, the Supreme Court addressed the proportionality claim of an



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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. 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 instant case, the offense committed by Appellant––delivery of between four and two
hundred grams of methamphetamine––was more serious than any of the offenses committed by
the appellant in Rummel, while Appellant’s thirty year sentence is no more severe than the life
sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the sentence in
Rummel was not unconstitutionally disproportionate, then neither is the sentence 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 sole issue is overruled.


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

                                                                  SAM GRIFFITH
                                                                     Justice

Opinion delivered December 20, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                               (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         DECEMBER 20, 2013


                                          NO. 12-13-00121-CR


                                      LESLIE ANN DELTORO,
                                             Appellant
                                                V.
                                      THE STATE OF TEXAS,
                                             Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 30897)

                        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.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
