                                      NO. 12-17-00139-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

CHRISTOPHER JACKSON,                                 §         APPEAL FROM THE 349TH
APPELLANT

V.                                                   §         JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                             §         HOUSTON COUNTY, TEXAS

                                     MEMORANDUM OPINION
       Christopher Jackson appeals his sentence following the revocation of his community
supervision. In a single issue, Appellant argues that his sentence was disproportionate to the
crime for which he was convicted. We affirm.


                                              BACKGROUND
       Appellant was charged by indictment with obstruction or retaliation.1 The indictment
further alleged that Appellant had two prior felony convictions for burglary of a habitation and
delivery of a controlled substance. Therefore, the habitual offender statute was invoked, which
mandates a sentence of imprisonment ranging from twenty-five to ninety-nine years or life.2
Appellant pleaded “guilty” to the offense and pleaded “true” to the enhancements. Pursuant to a
plea agreement, the trial court sentenced Appellant to deferred adjudication community
supervision for six years.
       On February 17, 2017, the State filed a motion to proceed with adjudication, which
included a request to revoke Appellant’s community supervision. On April 17, the trial court
conducted a hearing on the State’s motion. Appellant pleaded “true” to several of the allegations

       1
           See TEX. PENAL CODE ANN. § 36.06 (West 2016).
       2
           TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2016)
in the State’s motion. The trial court found all of the State’s allegations to be “true,” revoked
Appellant’s community supervision, and sentenced him to imprisonment for twenty-five years.
This appeal followed.


                               CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the twenty-five 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 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 obstruction or retaliation, and the habitual
offender statute was invoked because of Appellant’s previous history, the punishment range for



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which is between twenty-five and ninety-nine years. See TEX. PENAL CODE ANN. §§ 12.42(d)
(West Supp. 2016), 36.06 (West 2016). Thus, the sentence imposed by the trial court is the
minimum 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 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—obstruction or retaliation,
burglary of a habitation, and delivery of a controlled substance—are more serious than the
combination of offenses committed by the appellant in Rummel, while Appellant’s twenty-five



                                                3
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.

                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered September 20, 2017.
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

                                        SEPTEMBER 20, 2017


                                         NO. 12-17-00139-CR


                                    CHRISTOPHER JACKSON,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 15CR-161)

                        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.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
