                                  NO. 12-15-00013-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

ZEANTE WASHINGTON,                              §      APPEAL FROM THE 3RD
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      HOUSTON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Zeante Washington appeals his conviction for aggravated sexual assault of a child, for
which he was sentenced to imprisonment for twenty-five 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 sexual assault of a child and
pleaded “not guilty.” The matter proceeded to a jury trial. The jury found Appellant “guilty” as
charged and assessed his punishment at imprisonment for twenty-five years. The trial court
sentenced Appellant accordingly, and this appeal followed.


                              CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the twenty-five 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 sexual assault of a child, the punishment range for which
is five to ninety-nine years, or life. See TEX. PENAL CODE ANN. §§ 12.32(a), 22.021(e) (West
2011 & Supp. 2014). 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––aggravated sexual assault of a
child––is far more serious than the combination of offenses committed by the appellant in
Rummel, while Appellant’s twenty- 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.

                                                                 GREG NEELEY
                                                                    Justice
Opinion delivered July 31, 2015.
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 31, 2015


                                         NO. 12-15-00013-CR


                                     ZEANTE WASHINGTON,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 3rd District Court
                         of Houston County, Texas (Tr.Ct.No. 14CR-164)

                        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.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
