                                   NO. 12-16-00082-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JAMIE HALLMARK,                                   §      APPEAL FROM THE 349TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Jamie Hallmark appeals her conviction for hindering apprehension or prosecution, for
which she was sentenced to imprisonment for ten years. On original submission, we held that
the trial court abused its discretion by refusing to permit Appellant to withdraw her “guilty” plea
after telling her it was not following the plea agreement.           See Hallmark v. State, No.
12-16-00082-CR, 2016 WL 4379500, at *3 (Tex. App.–Tyler Aug. 17, 2016) (mem. op., not
designated for publication), rev’d, No. PD-1118-16, 2017 WL 5180524 (Tex. Crim. App. Nov. 8,
2017). We further held that the trial court’s abuse of discretion resulted in a substantial violation
of Appellant’s rights and was, therefore, harmful. Id. at *4.
       The State filed a petition for discretionary review, which was granted. The court of
criminal appeals reversed our opinion, holding the trial court followed the plea agreement when
it sentenced Appellant outside the recommended punishment, but within the range of punishment
for the offense. See Hallmark v. State, No. PD-1118-16, 2017 WL 5180524, at *2 (Tex. Crim.
App. Nov. 8, 2017). The court concluded also that Appellant’s objection that the trial court’s
sentence rendered her plea involuntary did not preserve the issue of whether it should have
permitted her to withdraw her plea. Id. at *3. The court remanded the cause to this court for
consideration of Appellant’s remaining issue on original submission that her sentence amounted
to cruel and unusual punishment. Id. We affirm.
                                         BACKGROUND
       Appellant was charged by indictment with hindering apprehension or prosecution and
pleaded “guilty.” Thereafter, the trial court sentenced Appellant to imprisonment for ten years.
Appellant objected to the sentence, arguing among other things, that it amounted to cruel and
unusual punishment. The trial court overruled Appellant’s objection, and this appeal followed.

                                CRUEL AND UNUSUAL PUNISHMENT
       In her sole remaining issue, Appellant argues that the ten 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 hindering apprehension or prosecution,
the punishment range for which is two to ten years. See TEX. PENAL CODE ANN. § 12.34(a)
(West 2011), § 38.05(d) (West 2016). 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 contends that her sentence is grossly disproportionate. 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




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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––hindering apprehension or
prosecution––is more serious than the combination of offenses committed by the appellant in
Rummel, while Appellant’s ten year sentence is 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 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.




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                                                                BRIAN HOYLE
                                                                   Justice



Opinion delivered December 21, 2017.
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

                                        DECEMBER 21, 2017


                                         NO. 12-16-00082-CR


                                       JAMIE HALLMARK,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 15CR-064)

                        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.
