                                   NO. 12-19-00048-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 ARTURO GARZA MEDINA, JR.,                          §      APPEAL FROM THE 3RD
 APPELLANT

 V.                                                 §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                           §      ANDERSON COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Arturo Garza Medina, Jr., appeals his conviction for aggravated robbery. In one issue,
Appellant argues that his sentence constitutes cruel and unusual punishment and is grossly
disproportionate to the crime he committed. We affirm.


                                           BACKGROUND
       Appellant was indicted for the first-degree felony offense of aggravated robbery. In
2011, Appellant pleaded “guilty” to the offense, and the trial court placed Appellant on deferred
adjudication community supervision. In 2018, the State filed an application to adjudicate
Appellant’s guilt for various alleged violations of the terms of his community supervision,
including a conviction for failure to comply with mandatory sex offender registration
requirements. Appellant pleaded “not true” to the allegations in the State’s application. After a
hearing, the trial court adjudicated Appellant’s guilt, found several of the State’s allegations in its
application to be “true,” found him “guilty” of the underlying offense, revoked his community
supervision, and sentenced him to forty years of imprisonment. This appeal followed.
                                CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the forty-year sentence imposed by the trial court is
grossly disproportionate to the crime committed and amounts to cruel and unusual punishment.
“To preserve for appellate review a complaint that a sentence is grossly disproportionate,
constituting cruel and unusual punishment, a defendant must present to the trial court a timely
request, objection, or motion stating the specific grounds for the ruling desired.” Kim v. State, 283
S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Rhoades v. State, 934 S.W.2d
113, 120 (Tex. Crim. App. 1996) (waiver of complaint of cruel and unusual punishment under the
Texas Constitution because defendant presented his argument for first time on appeal); Curry v.
State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (defendant waived complaint that statute
violated his rights under the United States Constitution when raised for first time on appeal); 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.”); TEX. R.
APP. P. 33.1.     A review of the record shows that Appellant lodged no objection to the
constitutionality of his sentence at the trial court level, and has, therefore, failed to preserve error
for appellate review. See Kim, 283 S.W.3d at 475; see also Rhoades, 934 S.W.2d at 120; Curry,
910 S.W.2d at 497; Mays, 285 S.W.3d at 889; TEX. R. APP. P. 33.1
       However, despite Appellant’s failure to preserve error, we conclude his 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,
666–667, 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. Appellant was convicted of



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aggravated robbery with a firearm, the punishment range for which is no less than five years but
no more than ninety-nine years or life imprisonment. See TEX. PENAL CODE ANN. §§ 12.32(a),
29.03(a)(2), (b) (West 2019). 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. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d
at 664.
          Nevertheless, 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. 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 are guided by the holding in Rummel v. Estelle in making the threshold determination
of whether Appellant’s sentence is grossly disproportionate to his crime. 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. In that case, the appellant received a life sentence because he 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.




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         In this case, the offense committed by Appellant—aggravated robbery—is no less serious
than the combination of offenses committed by the appellant in Rummel, while Appellant’s forty-
year sentence is far 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 is not constitutionally
disproportionate, neither is the sentence assessed against Appellant in this case. In his brief,
Appellant makes a conclusory statement that his forty-year sentence is grossly disproportionate
when compared to sentences in this jurisdiction and other jurisdictions. However, he cites to
no authority to support this contention. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear
and concise argument for the contentions made, with appropriate citations to the authorities and to
the record.”). Because we do not conclude that Appellant’s sentence is disproportionate to his
crime, 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 judgment of the trial court.

                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered March 25, 2020.
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

                                           MARCH 25, 2020


                                         NO. 12-19-00048-CR


                                ARTURO GARZA MEDINA, JR.,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 29721)

                       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.
