                                       NO. 12-17-00230-CR

                              IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

ERIC IVAN ESTRADA,                                    §       APPEAL FROM THE 369TH
APPELLANT

V.                                                    §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                              §       ANDERSON COUNTY, TEXAS

                                       MEMORANDUM OPINION
       Eric Ivan Estrada appeals his conviction for four counts of aggravated sexual assault and
two counts of sexual assault.            In a single issue, Appellant argues that his sentence is
disproportionate to the crimes for which he was convicted. We affirm.


                                               BACKGROUND
       Appellant was charged by indictment with four counts of first-degree felony aggravated
sexual assault1 and two counts of second-degree felony sexual assault.2 Appellant pleaded “guilty”
to all six counts. Following a sentencing hearing, the trial court found Appellant “guilty” as
charged and sentenced him to imprisonment for fifteen years on each count, to run concurrently.
This appeal followed.


                                   CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the fifteen 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


       1
           See TEX. PENAL CODE ANN. § 22.021(e) (West Supp. 2017).
       2
           See TEX. PENAL CODE ANN. § 22.011(f) (West Supp. 2017).
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.
       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 both a first-degree felony and a second-
degree felony, the punishment ranges for which are between five and ninety-nine years and two
and twenty years, respectively. See TEX. PENAL CODE ANN. §§ 12.32(a), 12.33(a) (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 his 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. 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


                                                 2
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 $80.00 worth of goods or services
and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 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—aggravated sexual assault and
sexual assault—are more serious than the combination of offenses committed by the appellant in
Rummel, while Appellant’s fifteen 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
was not unconstitutionally disproportionate, then 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.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
                                                                  BRIAN HOYLE
                                                                     Justice
Opinion delivered March 29, 2018.
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 29, 2018


                                         NO. 12-17-00230-CR


                                      ERIC IVAN ESTRADA,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 369th District Court
                    of Anderson County, Texas (Tr.Ct.No. 369CR-16-32628)

                        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.
