                                   NO. 12-15-00171-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

JIMMY ANDREW DAVIS, JR.,                          §       APPEAL FROM THE 3RD
APPELLANT

V.                                                §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §       ANDERSON COUNTY, TEXAS

                                   MEMORANDUM OPINION
         Jimmy Andrew Davis, Jr. appeals his conviction for manufacture or delivery of less than
one gram of cocaine in a drug free zone, for which he was sentenced to imprisonment for thirty
years.    In one issue, Appellant argues that his sentence amounted to cruel and unusual
punishment. We affirm.


                                           BACKGROUND
         Appellant was charged by indictment with manufacture or delivery of less than one gram
of cocaine in a drug free zone and pleaded “not guilty.” The State later filed a notice of
enhancements to be submitted to the factfinder at the punishment phase. This notice included
allegations that Appellant had four prior felony convictions.
         A jury found Appellant “guilty” as charged, and the matter proceeded to a bench trial on
punishment. Ultimately, the trial court sentenced Appellant to imprisonment for thirty years, and
this appeal followed.


                                CRUEL AND UNUSUAL PUNISHMENT
         In his sole issue, Appellant argues that the thirty year sentence imposed by the trial court
amounts to 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 manufacture or delivery of less than one
gram of cocaine in a drug free zone, the punishment range for which, considering enhancements
is twenty-five to ninety-nine years, or life.        See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(3)(D), 481.112(b), 481.134(d)(1) (West 2010 & Supp. 2015); TEX. PENAL CODE
ANN. §§ 12.34(a), 12.42(d) (West 2011 & Supp. 2015). 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.
       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.
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.).



                                                 2
         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 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––manufacture or delivery of less
than one gram of cocaine in a drug free zone––is more serious than the combination of offenses
committed by the appellant in Rummel, while Appellant’s thirty 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 July 12, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 12, 2016


                                         NO. 12-15-00171-CR


                                  JIMMY ANDREW DAVIS, JR.,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 31760)

                        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., Hoyle, J., and Neeley, J.
