                                      NO. 12-18-00113-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

 DERRICK DEWAYNE WATSON,                                §       APPEAL FROM THE 87TH
 APPELLANT

 V.                                                     §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                               §       ANDERSON COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Derrick Dewayne Watson appeals his conviction for attempted burglary of a habitation. In
one issue, he argues that his punishment is excessive and grossly disproportionate to the crime for
which he was convicted. We affirm.


                                               BACKGROUND
       Appellant was charged by indictment with one count of attempted burglary of a habitation,
a third degree felony, punishable by not less than two years but not more than ten years
imprisonment.1 The State filed a notice of intent to seek habitual punishment pursuant to Section
12.42(d) of the Texas Penal Code, alleging that Appellant had prior felony convictions for robbery,
assault against a government contractor/employee, and unlawful possession of a firearm. The
enhancement elevated the punishment range to not less than twenty-five years but not more than
ninety-nine years, or life, imprisonment.2
       Appellant pleaded “not guilty” and the matter proceeded to a jury trial. The jury found
Appellant “guilty” as charged. Appellant previously elected to have the trial court assess
punishment in the event he was convicted. At the punishment phase, Appellant pleaded “not true”

       1
           See TEX. PENAL CODE ANN. §§ 12.34 (West 2011), 15.01 (West 2011), 30.02 (West Supp. 2017).
       2
           TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017).
to the enhancements. The trial court found the enhancement allegation paragraphs to be “true”
and assessed punishment at twenty-five years imprisonment. This appeal followed.


                               CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the twenty-five-year sentence imposed by the trial
court is grossly disproportionate to the crime committed and amounts to cruel and unusual
punishment.     “To preserve for appellate review a complaint that a sentence is grossly
disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial
court a timely request, objection, or motion stating the specific grounds for the ruling desired.”
Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Rhoades v.
State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver of complaint of cruel and unusual
punishment under the Texas Constitution because defendant presented his argument for first time
on appeal); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (defendant waived
complaint that statute violated his rights under the United States Constitution when raised for first
time on appeal); 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.”); TEX. R. APP. P. 33.1. A review of the record shows that Appellant lodged no objection to
the constitutionality of his sentence at the trial court level, and has, therefore, failed to preserve
error for appellate review. See Kim, 283 S.W.3d at 475; see also Rhoades, 934 S.W.2d at 120;
Curry, 910 S.W.2d at 497; Mays, 285 S.W.3d at 889; TEX. R. APP. P. 33.1.
       However, despite Appellant’s failure to preserve error, we conclude his sentence does not
constitute 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



                                                  2
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 this case, Appellant was
convicted of attempted burglary of a habitation, and the habitual offender statute was invoked
because of Appellant’s previous history, the punishment range for which is between twenty-five
and ninety-nine years, or life, imprisonment. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp.
2017). 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. See
Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.
       Nevertheless, 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. 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 are guided by the holding in Rummel v. Estelle in making the threshold determination
of whether Appellant’s sentence is grossly disproportionate to his crime. 445 U.S. 263, 100 S. Ct.
1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered the proportionality
claim of an appellant who 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. In that case, the appellant received a life sentence because he had
two prior felony convictions—one for fraudulent use of a credit card to obtain $80 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



                                                 3
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 this case, the offense committed by Appellant—attempted burglary of a habitation—is
certainly no less serious than the combination of offenses committed by the appellant in Rummel,
while Appellant’s twenty-five-year sentence is far less severe than the life sentence upheld by the
Supreme Court in Rummell. Thus, it is reasonable to conclude that if the sentence in Rummell is
not constitutionally disproportionate, neither is the sentence assessed against Appellant in this
case. In his brief, Appellant makes a conclusory statement that his twenty-five year sentence is
grossly disproportionate, stating that other sentences for “more serious attempted burglary of a
habitation convictions” resulted in “significantly” less harsh sentences. However, he cites to no
authority to support this contention. See TEX. R. APP. P. 38.1(i) (“[t]he brief must contain a clear
and concise argument for the contentions made, with appropriate citations to the authorities...”).
Because we do not conclude that Appellant’s sentence is disproportionate to his crime, 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 judgment of the trial court.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered September 19, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 19, 2018


                                         NO. 12-18-00113-CR


                                DERRICK DEWAYNE WATSON,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                 Appeal from the 87th District Court
                     of Anderson County, Texas (Tr.Ct.No. 87CR-17-33089)

                       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.
