LaQuentin Washington v. State
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Opinion
NOS. 12-13-00345-CR 12-13-00346-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LAQUENTIN WASHINGTON, § APPEALS FROM THE 241ST APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION LaQuentin Washington appeals his convictions for possession of between four and two hundred grams cocaine with intent to deliver and tampering with physical evidence, for which he was sentenced to imprisonment for forty-five years and twenty years respectively. In one issue, Appellant argues that his sentences are excessive and grossly disproportionate to the crimes of which he was convicted. We affirm.
BACKGROUND Appellant was charged by separate indictments with possession of between four and two hundred grams of cocaine with intent to deliver and tampering with physical evidence. Each indictment also alleged that Appellant previously had been convicted of delivery of a controlled substance. Appellant pleaded “guilty” to the charged offenses and “true” to the enhancement allegations in each cause. Following a punishment hearing, the trial court sentenced Appellant to imprisonment for forty-five years for the possession with intent to deliver offense and twenty years for the tampering offense. This appeal followed. CRUEL AND UNUSUAL PUNISHMENT In his sole issue, Appellant argues that his sentences each amount to cruel and unusual punishment in violation of the United States Constitution. 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 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 sentences about which Appellant complains do 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 possession of between four and two hundred grams of cocaine with intent to deliver, the punishment range for which, considering the enhancement allegation, is fifteen to ninety-nine years, or life. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(d) (West 2010); TEX. PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2014). Moreover, Appellant was convicted of tampering with physical evidence, the punishment range for which, considering the enhancement allegation, is two to twenty years. See TEX. PENAL CODE ANN. §§ 12.33(a), 12.42(a), 37.09(c) (West 2011 & Supp. 2014). Here, the sentences imposed by the trial court fall within the range set forth by the legislature. Therefore, the punishments are 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,
2 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 sentences are 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 offenses committed by Appellant––possession of between four and two hundred grams of cocaine with intent to deliver and tampering with physical evidence–– each were more serious than the combination of offenses committed by the appellant in Rummel, while Appellant’s forty-five and twenty year sentences are each 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 are either of the sentences 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 first issue is overruled.
3 DISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
GREG NEELEY Justice
Opinion delivered February 11, 2015. 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
FEBRUARY 11, 2015
NO. 12-13-00345-CR
LAQUENTIN WASHINGTON, Appellant V. THE STATE OF TEXAS, Appellee
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