                                  NO. 12-14-00102-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

TRACY TREVINO,                                   §      APPEAL FROM THE 349TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION

       Tracy Trevino appeals his conviction for aggravated assault, for which he was sentenced
to imprisonment for fifteen years. In one issue, Appellant argues his sentence is excessive and
grossly disproportionate to the crime of which he was convicted. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with aggravated assault and pleaded “not guilty.”
The matter proceeded to a jury trial. The jury found Appellant “guilty” as charged. Following a
bench trial on punishment, the trial court sentenced Appellant to imprisonment for fifteen years.
This appeal followed.


                               CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the fifteen 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 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 aggravated assault, the punishment range for which is two to twenty
years.   See TEX. PENAL CODE ANN. §§ 12.33(a), 22.02(a)(2), (b) (West 2011).               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.).
         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



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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––aggravated assault––is more
serious than the combination of offenses committed by the appellant in Rummel, while
Appellant’s fifteen 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.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered May 13, 2015.
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

                                              MAY 13, 2015


                                         NO. 12-14-00102-CR


                                        TRACY TREVINO,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 13CR-034)

                        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.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
