                                  NO. 12-12-00337-CR

                         IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

KIRK HOLT,                                        §           APPEAL FROM THE 349TH
APPELLANT

V.                                                §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §           HOUSTON COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Kirk Holt appeals his conviction for misapplication of fiduciary property of an elderly
individual, for which he was sentenced to imprisonment for twenty-three years. In one issue,
Appellant argues that his sentence amounts to cruel and unusual punishment. We affirm.


                                            BACKGROUND
       Appellant was charged by indictment with misapplication of fiduciary property of an elderly
individual and pleaded “not guilty.” The matter proceeded to trial, and a jury found Appellant
“guilty” as charged. Following a trial on punishment, the jury assessed Appellant’s punishment at
imprisonment for twenty-three 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
misapplication of fiduciary property of an elderly individual, the punishment range for which is five
to ninety-nine years or life. See TEX. PENAL CODE ANN. §§ 12.32(a), 32.45(b), (c)(6), (d) (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 must first 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

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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. 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 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––misapplication of fiduciary property
of an elderly individual––was more serious than any of the offenses committed by the appellant in
Rummel, while Appellant’s twenty-three year sentence is no more 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. 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 July 10, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)




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                                     COURT OF APPEALS
            TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                             JUDGMENT

                                             JULY 10, 2013


                                         NO. 12-12-00337-CR


                                          KIRK HOLT,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                            Appeal from the 349th Judicial District Court
                         of Houston County, Texas. (Tr.Ct.No. 11CR-058)


                       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.




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