Tracy Trevino v. State ( 2015 )


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  •                                   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
    2
    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)
    3
    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.