                                NO. 12-12-00197-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

TERRANCE O. EASTERLING,                          §           APPEAL FROM THE 349TH
APPELLANT

V.                                               §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §          HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Terrance O. Easterling appeals his conviction for kidnapping, for which, following the
revocation of his community supervision, he was sentenced to imprisonment for ten years. In one
issue, Appellant argues that his sentence amounted to cruel and unusual punishment. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with aggravated kidnapping and pleaded “guilty” to
the reduced charge of kidnapping. The trial court found Appellant “guilty” of kidnapping and
sentenced him to imprisonment for ten years, but suspended the sentence and placed Appellant on
community supervision for eight years.
       On January 5, 2012, the State filed a motion to revoke Appellant’s community supervision
alleging that Appellant had violated certain conditions thereof. On May 7, 2012, the trial court
conducted a hearing on the State’s motion. At the hearing, Appellant pleaded “true” to two of the
allegations in the State’s motion. Specifically, Appellant pleaded “true” to the allegations that he
(1) used cocaine and marijuana from May 2011 through December 2011 and (2) stopped reporting
to his community supervision officer in October 2011. At the conclusion of the hearing, the trial
court found to be “true” the two allegations in the State’s motion to which Appellant pleaded
“true.” Thereafter, the trial court revoked Appellant’s community supervision and sentenced him
to imprisonment for ten years. This appeal followed.


                                           SENTENCING
       As part of his first issue, Appellant argues that his sentence amounts to cruel and unusual
punishment in violation of the United States Constitution. 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 Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App.
1995) (waiver with regard to rights under the United States Constitution); 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 kidnapping, the punishment range for which is two to ten years. See
TEX. PENAL CODE ANN. §§ 12.34(a), 20.03(c) (West 2011). 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.
Proportionality of Appellant’s Sentence
       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

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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
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 case at hand, the offense committed by Appellant––kidnapping––was more serious
than any of the offenses committed by the appellant in Rummel, while Appellant’s ten year
sentence is far less 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.
Failure to Consider Full Range of Punishment
       In the remainder of his sole issue, Appellant contends that the trial court erred in failing to
consider the full range of punishment. Appellant’s argument is vague, but appears to be based
solely on the fact that he received the maximum possible sentence under the statutory punishment

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range.
         The Fourteenth Amendment provides that the state may not “deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST. amend. XIV; see also TEX. CONST.
art. I, § 19. Due process requires that the trial court conduct itself in a neutral and detached
manner. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d 656 (1973);
Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Jaenicke v. State, 109 S.W.3d 793,
796 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d). “[A] trial court’s arbitrary refusal to
consider the entire range of punishment in a particular case violates due process.” Ex parte
Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005); see also Brumit, 206 S.W.3d at 645.
However, absent a clear showing of bias, we presume the trial court’s actions were correct.
Brumit, 206 S.W.3d at 645. Bias is not shown when (1) the trial court hears extensive evidence
before assessing punishment, (2) the record contains explicit evidence that the trial court
considered the full range of punishment, and (3) the trial court made no comments indicating
consideration of less than the full range of punishment. See id.
         In the instant case, Appellant has failed to set forth any argument or cite any facts that
support his contention that the trial court exhibited bias. See TEX. R. APP. P. 38.1(i). Even so,
we have reviewed the record, and have not located any evidence indicating that the trial court
exhibited bias.
         To the contrary, at the punishment hearing, the trial court explained to Appellant that were
it to find the allegations in the State’s motion to be true, it could (1) revoke his probation and
sentence him up to ten years, (2) do nothing, if appropriate, or (3) do something in between each of
those extremes.
         The State declined to call any witnesses. Thereafter, the trial court considered Appellant’s
testimony, in which he recounted his problems with drug addiction and homelessness and
expressed his need for further drug addiction treatment. Further, the trial court considered the
testimony offered by Appellant’s wife, Latoya Easterling, who expressed her belief that Appellant
would benefit from further treatment for drug addiction and what she believed to be bipolar
disorder.    Finally, the trial court considered testimony from Appellant’s mother, Barbara
Easterling, who expressed her belief that Appellant would benefit from further treatment for drug

                                                  4
addiction.
         The State argued for the maximum sentence based, in part, on (1) Appellant’s pleas of
“true” and (2) Appellant’s statement at a previous revocation hearing that “if he messed up, he
deserved the maximum.” Appellant argued that he would benefit from treatment for his drug
addiction and that, in prison, he would not get the sort of treatment he needed. The trial court
recounted Appellant’s criminal history and the outcomes of the State’s past motion to revoke
before pronouncing Appellant’s sentence.
         To prevail in his argument, Appellant must show clear bias to rebut the presumption that
the trial court’s actions were correct. See, e.g., Brumit, 206 S.W.3d at 645 (holding judge’s
comments that earlier case made him think anybody who ever harmed a child should be put to
death did not reflect bias, partiality, or failure to consider full range of punishment). In the case at
hand, the trial court considered the evidence before assessing punishment and explicitly stated to
Appellant that it would consider the entire range of punishment. Appellant has not indicated in
his brief any statement by the trial court that indicates a clear bias or a failure to consider the full
range of punishment. Having considered the entirety of the record, we decline to hold that the
fact that the trial court ultimately sentenced Appellant to the maximum possible term under the
statutory punishment range supports an inference that the trial court considered only that period of
imprisonment as punishment for Appellant. Therefore, we conclude Appellant was not denied
due process and due course of law.
         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 December 12, 2012.
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 12, 2012


                                         NO. 12-12-00197-CR


                                 TERRANCE O. EASTERLING,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                            Appeal from the 349th Judicial District Court
                         of Houston County, Texas. (Tr.Ct.No. 09CR-095)


                       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., Griffith, J., and Hoyle, J.



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