Ivy Rischer, Jr. v. the State of Texas

NO. 12-21-00208-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IVY RISCHER, JR., § APPEAL FROM THE 349TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Ivy Rischer, Jr. appeals his conviction for robbery. In one issue, Appellant argues that
the punishment assessed by the trial court was excessive and grossly disproportionate to the
crime committed. We affirm.
BACKGROUND
Appellant was charged by indictment with robbery, that while in the course of
committing theft of property and with the intent to obtain or maintain control of said property,
intentionally or knowingly threatened or placed another individual in fear of imminent bodily
injury or death, a second degree felony. 1 Appellant made an “open” plea of guilty, and Appellant
and his counsel signed various documents in connection with his guilty plea, including a
stipulation of evidence and judicial confession in which he stipulated, and judicially confessed,
that he committed each and every element alleged in the complaint and that he was guilty as
charged. The trial court accepted Appellant’s plea, found the evidence substantiated his guilty
1
See TEX. PENAL CODE ANN. § 29.02(a)(2), (b) (West 2019).
plea, adjudged Appellant guilty of robbery, and assessed his punishment at fifteen years of
imprisonment. 2 This appeal followed.
CRUEL AND UNUSUAL PUNISHMENT
In his sole issue on appeal, Appellant argues that the punishment assessed by the trial
court was excessive, grossly disproportionate to the crime committed, and therefore, violated the
Eighth Amendment of the United States Constitution’s prohibition against 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.
2
See id. § 12.33 (West 2019). An individual adjudged guilty of a second degree felony shall be punished
by imprisonment for any term of not more than twenty years or less than two years and, in addition, a fine not to
exceed $10,000.00. Id.
2
Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010) (citing Robinson v. California,
370 U.S. 660, 666–667, 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. Appellant was
convicted of robbery, a second degree felony, for which the punishment range is any term of not
more than twenty years or less than two years. See TEX. PENAL CODE ANN. §§ 12.33, 29.02(b).
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
3
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 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—robbery—is no less 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 is not constitutionally
disproportionate, neither is the sentence assessed against Appellant in this case. In his brief,
Appellant makes a conclusory statement that in terms of other robbery cases, “the facts which
make up the gist of the robbery,” when considered in conjunction with other testimony, the
sentence is grossly disproportionate to the offense committed. However, he cites to no facts or
authority to support these contentions. 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.
BRIAN HOYLE
Justice
Opinion delivered March 23, 2022.
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
MARCH 23, 2022
NO. 12-21-00208-CR
IVY RISCHER, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 349th District Court
of Anderson County, Texas (Tr.Ct.No. 349CR-20-34638)
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.