                                   NO. 12-13-00337-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

JHAMERRICK RHAISHARD MILTON,                      §     APPEAL FROM THE 3RD
APPELLANT

V.
                                                  §     JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE
                                           §   ANDERSON COUNTY, TEXAS
                                   MEMORANDUM OPINION
          Jhamerrick Rhaishard Milton appeals his conviction for aggravated robbery, for which he
was sentenced to imprisonment for twenty-five years.         In one issue, Appellant argues his
sentence is excessive and grossly disproportionate to the crime of which he was convicted. We
affirm.


                                          BACKGROUND
          Appellant was charged by indictment with aggravated robbery and pleaded “guilty.” The
matter proceeded to a jury trial on punishment.       Ultimately, the jury assessed Appellant’s
punishment at imprisonment for twenty-five years.          The trial court sentenced Appellant
accordingly, and this appeal followed.


                                CRUEL AND UNUSUAL PUNISHMENT
          In his sole issue, Appellant argues that his sentence amounts to cruel and unusual
punishment in violation of the United States and Texas constitutions. 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. 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 aggravated robbery, the punishment range for which is five to
ninety-nine years or life. See TEX. PENAL CODE ANN. §§ 12.32(a), 29.03(b) (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.
       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 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 first must 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. 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



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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––aggravated robbery––was more
serious than any of the offenses committed by the appellant in Rummel, while Appellant’s
twenty-five 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
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. 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 August 13, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           AUGUST 13, 2014


                                          NO. 12-13-00337-CR


                            JHAMERRICK RHAISHARD MILTON,
                                       Appellant
                                          V.
                                 THE STATE OF TEXAS,
                                       Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 31112)

                        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.
