NO. 12-18-00336-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KAMERON HEATH PRINE, § APPEAL FROM THE 3RD APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS, APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION Kameron Heath Prine appeals his convictions for continuous sexual abuse of a child and indecency with a child by contact. In one issue, Appellant argues that his sentences constitute cruel and unusual punishment. We affirm.
BACKGROUND Appellant was indicted for continuous sexual abuse of a child and indecency with a child by sexual contact. Appellant pleaded “not guilty” to the offenses and the matter proceeded to a jury trial. The jury found Appellant guilty of both offenses. After a punishment hearing, the trial court sentenced Appellant to forty years of imprisonment for the continuous sexual abuse offense and twenty years for the indecency with a child offense. This appeal followed.
CRUEL AND UNUSUAL PUNISHMENT In his sole issue, Appellant argues that the forty year and twenty year sentences imposed by the trial court are grossly disproportionate to the crimes committed and amount 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 sentences 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 sentences do 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, 666–667, 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 continuous sexual abuse of a child, a first-degree felony with a punishment range from twenty-five years to ninety-nine years or life imprisonment. See TEX. PENAL CODE ANN. § 21.02(h) (West 2019). Appellant was also convicted of indecency with a child by contact, a second-degree felony with a punishment range from two years to twenty years of imprisonment. See id. §§ 12.33(a); 21.11(d) (West 2019). Thus, the sentences imposed by the trial court fall within the range set forth
2 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 sentences are grossly disproportionate to his crimes. 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 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.
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NO. 12-18-00336-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KAMERON HEATH PRINE, § APPEAL FROM THE 3RD APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS, APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION Kameron Heath Prine appeals his convictions for continuous sexual abuse of a child and indecency with a child by contact. In one issue, Appellant argues that his sentences constitute cruel and unusual punishment. We affirm.
BACKGROUND Appellant was indicted for continuous sexual abuse of a child and indecency with a child by sexual contact. Appellant pleaded “not guilty” to the offenses and the matter proceeded to a jury trial. The jury found Appellant guilty of both offenses. After a punishment hearing, the trial court sentenced Appellant to forty years of imprisonment for the continuous sexual abuse offense and twenty years for the indecency with a child offense. This appeal followed.
CRUEL AND UNUSUAL PUNISHMENT In his sole issue, Appellant argues that the forty year and twenty year sentences imposed by the trial court are grossly disproportionate to the crimes committed and amount 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 sentences 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 sentences do 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, 666–667, 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 continuous sexual abuse of a child, a first-degree felony with a punishment range from twenty-five years to ninety-nine years or life imprisonment. See TEX. PENAL CODE ANN. § 21.02(h) (West 2019). Appellant was also convicted of indecency with a child by contact, a second-degree felony with a punishment range from two years to twenty years of imprisonment. See id. §§ 12.33(a); 21.11(d) (West 2019). Thus, the sentences imposed by the trial court fall within the range set forth
2 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 sentences are grossly disproportionate to his crimes. 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 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 offenses committed by Appellant—continuous sexual abuse of a child and indecency with a child by contact—are even more serious than the combination of offenses committed by the appellant in Rummel, while Appellant’s forty year and twenty year sentences are 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,
3 neither are the sentences assessed against Appellant in this case. In his brief, Appellant makes a conclusory statement that his sentences are grossly disproportionate, stating that other sentences for more serious crimes resulted in significantly less harsh sentences than Appellant received. 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 sentences are 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.
GREG NEELEY Justice
Opinion delivered January 15, 2020. 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
JANUARY 15, 2020
KAMERON HEATH PRINE, Appellant V. THE STATE OF TEXAS, Appellee
Appeal from the 3rd District Court of Anderson County, Texas (Tr.Ct.No. 3CR-16-32999)
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.