                                NO. 12-17-00226-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

THOMAS SIMPSON,                                §      APPEAL FROM THE 349TH
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §      HOUSTON COUNTY, TEXAS

                                MEMORANDUM OPINION
       Thomas Simpson appeals his conviction for possession of phencyclidine. In one issue
Appellant argues that his sentence was disproportionate to the crime of which he was convicted.
We affirm.


                                        BACKGROUND
       Appellant was charged by indictment with manufacture or delivery of between four and
two hundred grams of phencyclidine. Pursuant to a plea agreement with the State, Appellant
pleaded “guilty” to the lesser included offense of possession of the same quantity of
phencyclidine. The trial court deferred finding Appellant “guilty” and placed him on community
supervision for eight years.
       Thereafter, the State moved to proceed to a final adjudication alleging that Appellant
violated certain terms and conditions of his community supervision. Appellant pleaded “true” to
three of the allegations in the State’s motion and “not true” to the remaining allegations.
Following a hearing on the matter, the trial court found that several of the allegations that
Appellant violated his community supervision to be “true.” As a result, the trial court revoked
Appellant’s community supervision, found Appellant “guilty” of possession of between four and
two hundred grams of phencyclidine, and sentenced him to imprisonment for twelve years. This
appeal followed.


                               CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the twelve 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 possession of between four and two
hundred grams of phencyclidine, the punishment range for which is two to twenty years. See
TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(8), 481.115(a), (d) (West 2017 & Supp. 2017);
TEX. PENAL CODE ANN. § 12.33(a) (West 2011). Thus, the sentence imposed by the trial court



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falls within the range 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 to the crime
of which he was convicted. 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 offense committed by Appellant––possession of between four and
two hundred grams of phencyclidine––is more serious than the combination of offenses
committed by the appellant in Rummel, while Appellant’s twelve year sentence is less severe
than the life sentence upheld by the Supreme Court in Rummel. Thus, it is reasonable to



                                                 3
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 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.

                                                                 BRIAN HOYLE
                                                                    Justice



Opinion delivered March 15, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 15, 2018


                                         NO. 12-17-00226-CR


                                       THOMAS SIMPSON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 14CR-017)

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