                                 NO. 12-07-00290-CR

                         IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

SONYA JENKINS,                                    §           APPEAL FROM THE 124TH
APPELLANT

V.                                                §           JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                          §           GREGG COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Sonya Jenkins appeals her conviction for theft, for which she was sentenced to imprisonment
for ten months. In one issue, Appellant argues that her sentence amounts to cruel and unusual
punishment. We affirm.
                                           BACKGROUND
       Appellant was charged by indictment with theft of property valued between $1,500.00 and
$20,000.00. Appellant pleaded “guilty,” and the matter proceeded to a bench trial on punishment.
Following the presentation of evidence and argument of counsel, the trial court sentenced Appellant
to imprisonment for ten months. This appeal followed.

                               CRUEL AND UNUSUAL PUNISHMENT
       In her sole issue, Appellant contends that the ten month sentence imposed on her for theft
of property is disproportionate to the crime for which she was convicted and that her sentence
violated the cruel and unusual punishment clause of the United States Constitution. See U.S. CONST.
amend. VIII; see also TEX . CONST. art I, § 13. However, Appellant made no timely objection to the
trial court raising the issue of cruel and unusual punishment and has, therefore, waived such an issue
on appeal. See Willis v. State, 192 S.W.3d 585, 595–97 (Tex. App.–Tyler 2006, pet. ref’d); see also
TEX . R. APP. P. 33.1.
         However, even absent waiver, we conclude that Appellant’s sentence did not constitute cruel
and unusual punishment. Appellant was convicted of theft. See TEX . PENAL CODE ANN . § 31.03(a)
(Vernon Supp. 2008). The punishment range for such an offense is between 180 days and two years.
See TEX . PENAL CODE ANN . §§ 12.35(a), 31.03(e)(4)(A) (Vernon Supp. 2008). Here, the sentence
imposed by the trial court falls within the range set forth by the legislature. Id. Therefore, the
punishment is not prohibited as cruel, unusual, or excessive per se. 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 v. State, 905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref’d).
         Nonetheless, we have considered the threshold question of whether Appellant’s sentence is
grossly disproportionate to the crime. 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.); see also Harmelin v. Michigan, 501
U.S. 957, 1005, 111 S. Ct. 2680, 2707, 115 L. Ed. 2d 836 (1991); Solem v. Helm, 463 U.S. 277,
298–300, 103 S. Ct. 3001, 3013–15, 77 L. Ed. 2d 637 (1983). In conducting our analysis, 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 which the Supreme Court upheld the petitioner’s 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. The offense committed by Appellant—theft of property valued
between $1,500.00 and $20,000.00—is more serious than any of the offenses committed by the
appellant in Rummel, and Appellant’s ten month 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.1 Appellant’s sole issue is overruled.




         1
           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.

                                                            2
                                                    DISPOSITION
         Having sustained Appellant’s sole issue, we affirm the trial court's judgment.



                                                                  JAMES T. WORTHEN
                                                                      Chief Justice




Opinion delivered August 6, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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