                                 NOS. 12-09-00297-CR
                                      12-09-00298-CR
                                      12-09-00299-CR
                                      12-09-00300-CR

                         IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

NYAREAREE LEWIS,                                '         APPEAL FROM THE 114TH
APPELLANT

V.                                              '        JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                        '        SMITH COUNTY, TEXAS


                                  MEMORANDUM OPINION
       Nyarearee Lewis appeals one conviction of possession of a controlled substance with
intent to deliver, for which he was sentenced to imprisonment for forty years, one conviction for
possession of cocaine, for which he was sentenced to imprisonment for two years, one conviction
for possession of marijuana, for which he was sentenced to imprisonment for eighteen months, and
one conviction of unlawful possession of a firearm by a felon, for which he was sentenced to
imprisonment for ten years. Appellant raises five issues on appeal. We affirm.


                                         BACKGROUND
       Appellant was charged by separate indictments with one count of possession of with intent
to   deliver   between    four    and   four   hundred   grams    of   N-benzylpiperazine    and
1-(3-trifluoromethylphenyl) piperazine, one count of possession of less than one gram of cocaine,
one count of possession of between four ounces and five pounds of marijuana, and one count of
unlawful possession of a firearm by a felon. Appellant pleaded “guilty” as charged to each
offense. The matters proceeded to a trial on punishment, after which the trial court sentenced
Appellant to imprisonment for forty years for possession with intent to deliver N-benzylpiperazine
and 1-(3-trifluoromethylphenyl) piperazine, two years for possession of cocaine, eighteen months
for possession of marijuana, and ten years for unlawful possession of a firearm by a felon. This
appeal followed.


                              CRUEL AND UNUSUAL PUNISHMENT
       In his first and second issues, Appellant argues that his forty year sentence amounts to cruel
and unusual punishment in violation of the United States and Texas constitutions. In his third and
fourth issues, Appellant argues that his ten year 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,
waived these issues on appeal. 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);
TEX R. APP. P. 33.1. However, even absent waiver, we conclude that the sentences of which
Appellant complains did 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 possession with intent to deliver N-benzylpiperazine and
1-(3-trifluoromethylphenyl) piperazine.       See TEX. HEALTH & SAFETY CODE ANN. §§
481.103(a)(1), 481.113(a) (Vernon 2010). The punishment range for such an offense is between
five and ninety-nine years or life. See TEX. HEALTH & SAFETY CODE ANN. § 481.116(d); TEX.
PENAL CODE ANN. §§ 12.32(a) (Vernon Supp. 2009).             Appellant was further convicted of
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unlawful possession of a firearm by a felon. See TEX. PENAL CODE ANN. § 46.04(a)(1) (Vernon
Supp. 2009). The punishment range for such an offense is between two and ten years. See TEX.
PENAL CODE ANN. §§ 12.34(a), 46.04(e) (Vernon Supp. 2009). In each instance, the sentence
imposed by the trial court falls within the range set forth by the legislature. Therefore, the
punishments are 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. d 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 sentences are 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. 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 offenses committed by Appellant–possession of a controlled
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substance with intent to deliver and unlawful possession of a firearm by a felon–were each more
serious than any of the offenses committed by the appellant in Rummel, while Appellant=s forty
and ten year sentences are 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 are the sentences 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 first, second, third, and fourth issues are overruled.


                                 IMPROPER PROSECUTORIAL ARGUMENT
        In his fifth issue, Appellant argues that the trial court improperly considered argument
adduced by the prosecuting attorney. Specifically, Appellant contends that the prosecuting
attorney made the following improper statement during his closing argument to the court:


                  [T]he people of Smith County and the State of Texas suffer from [the defendant’s bad]
        choices. And the only way to see that we don’t suffer anymore is to see that we never see him on
        the streets again. And I know the Court can’t order that because parole and the like exists…. He
        has nothing redeemable.



        The State initially argues that Appellant failed to preserve error by objecting to the
allegedly improper statement. Appellant concedes that he did not object to the aforementioned
statement at trial, but argues that the prosecuting attorney’s statement amounts to fundamental
error. The failure to object to impermissible jury argument waives any error. See Cockrell v.
State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that defendant’s failure to object to jury
argument forfeits his right to complain on appeal); Andrews v. State, 106 S.W.3d 402, 405 (Tex.
App.–Houston [1st Dist.] 2003, pet. dism’d) (holding that defendant's failure to object to allegedly
improper jury argument waives complaint on appeal); Jones v. State, 900 S.W.2d 392, 397 (Tex.
App.–San Antonio 1995, pet. ref’d) (holding that since the appellant did not object, ask for
instruction, or request mistrial, nothing preserved for review). Impermissible jury argument is
not fundamental error. 1 See Cockrell, 933 S.W.2d at 89. We hold that Appellant failed to

        1
          In two recent opinions, the court of criminal appeals has specifically stated that the fundamental error
exception to a defendant’s failure to object to improper prosecutorial argument as set forth in Willis v. State, 785
                                                         4
preserve error, if any, by not objecting to the prosecuting attorney’s argument.
        Yet even had Appellant objected to the supposed improper argument, the outcome would
not differ. Proper argument consists of (1) summation of the evidence; (2) reasonable deductions
from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law
enforcement. Morales v. State, 11 S.W.3d 460, 463 (Tex. App.–El Paso 2000, pet. ref’d). To
determine if the prosecuting attorney made an improper argument, the reviewing court must
consider the entire argument in context, not merely isolated sentences. See Rodriguez v. State, 90
S.W.3d 340, 364 (Tex. App.–El Paso 2001, pet. ref’d). Prosecutorial argument that constitutes a
demand for punishment because of the citizens’ desires is improper because it asks the fact finder
to lend an ear to the community rather than a voice. See Prado v. State, 626 S.W.2d 775, 776
(Tex. Crim. App. 1982). The distinction that must be drawn is whether the prosecuting attorney’s
argument asked the fact finder to be the voice of the community or, instead, asked the jury to lend
its ear to the community. See Cortez v. State, 683 S.W.2d 419, 421 (Tex. Crim. App. 1984).
        Here, Appellant contends that the prosecuting attorney’s argument pressured the fact finder
with community demands. We disagree. When viewing the argument in its entirety, it is
apparent that the prosecuting attorney is pleading that justice be done to prevent further suffering
to the citizens of Smith County, Texas. The prosecutor was not stating that the community wants,
desires, requires, or expects the fact finder to return the strongest penalty. See Rivera v. State, 82
S.W.3d 64, 69 (Tex. App.–San Antonio 2002, pet. ref’d) (prosecutor does not necessarily make
improper appeal to community’s desires just by referring to the community during argument).
Thus, we hold that the prosecuting attorney, by his argument, did not improperly ask the fact finder
to lend an ear to the community rather than a voice.
        Appellant’s fifth issue is overruled.


                                                DISPOSITION
        Having overruled Appellant’s first, second, third, fourth, and fifth issues, we affirm the
trial court’s judgment.


S.W.2d 378, 385 (Tex. Crim. App. 1989) was overruled by the court’s holding in Cockrell. However, these opinions,
which were issued in 2009 and 2010 respectively, are unpublished. As a result, we cannot cite them as authority.
See TEX. R. APP. P. 77.3.
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                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered July 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



                                              (DO NOT PUBLISH)




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