                                       NO. 12-18-00195-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

 DANA RAY KILLIAN,                                      §       APPEAL FROM THE 349TH
 APPELLANT

 V.                                                     §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                               §       HOUSTON COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Dana Ray Killian appeals his conviction for online solicitation of a minor. In one issue, he
argues that his punishment is excessive and grossly disproportionate to the crime for which he was
convicted. We affirm.


                                               BACKGROUND
       Appellant was charged by indictment with online solicitation of a minor, a second-degree
felony. 1 Appellant pleaded “not guilty” and the matter proceeded to a jury trial. The jury found
Appellant “guilty” as charged.          Appellant previously elected to have the trial court assess
punishment in the event he was convicted. Following a sentencing hearing, the trial court assessed
punishment at eight years imprisonment. This appeal followed.


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

       1
           TEX. PENAL CODE ANN. § 33.021(c), (f) (West 2016).
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, 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. In this case, Appellant was
convicted of a second-degree felony, the punishment range for which is between two and twenty
years imprisonment. TEX. PENAL CODE ANN. § 12.33 (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.



                                                   2
        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.
        In this case, the offense committed by Appellant—online solicitation of a minor—is
certainly no less serious than the combination of offenses committed by the appellant in Rummel,
while Appellant’s eight-year sentence is far less severe than the life sentence upheld by the
Supreme Court in Rummell. Thus, it is reasonable to conclude that if the sentence in Rummell is
not constitutionally disproportionate, neither is the sentence assessed against Appellant in this
case.   In his brief, Appellant makes a conclusory statement that his eight-year sentence
is grossly disproportionate, stating that other sentences for “more serious online solicitation of a



                                                  3
minor” convictions resulted in “significantly” less harsh sentences. However, he cites to no
authority to support this contention. See TEX. R. APP. P. 38.1(i) (“[t]he brief must contain a clear
and concise argument for the contentions made, with appropriate citations to the authorities...”).
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.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered May 31, 2019.
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

                                              MAY 31, 2019


                                         NO. 12-18-00195-CR


                                       DANA RAY KILLIAN,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 16CR-216)

                       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.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
