NO. 12-05-00318-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RICHARD MARTIN, II, § APPEAL FROM THE 349TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
Richard Martin, II appeals his convictions on four counts of aggravated sexual assault of a child, for which he was sentenced to imprisonment for forty years on each count. Appellant raises two issues on appeal. We affirm.
Background
Appellant was charged by indictment with four counts of aggravated sexual assault of a child and pleaded “not guilty” to the charges. The matter proceeded to jury trial, and the jury found Appellant “guilty” as charged on each count. Following a trial on punishment, the jury assessed Appellant’s punishment at forty years of imprisonment for each count. The trial court sentenced Appellant accordingly and ordered that his sentences run consecutively. This appeal followed.
Consecutive Sentences
In his first issue, Appellant argues that the trial court abused its discretion in ordering that his sentences run consecutively. Under article 42.08 of the Texas Code of Criminal Procedure, a trial judge has the discretion to cumulate the sentences for two or more convictions. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2006); Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d); see also Tex. Pen. Code Ann. 3.03(b)(2)(A) (Vernon Supp. 2006) (if the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run consecutively if each sentence is for an offense of, among others, aggravated sexual assault committed against a victim younger than 17 years of age at the time of the commission). A trial court abuses its discretion when it applies an erroneous legal standard or when no reasonable view of the record supports the trial court’s conclusion under the correct law and facts viewed in the light most favorable to its legal conclusion. Nicholas, 56 S.W.3d at 764.
As a practical matter, however, an abuse of discretion generally will be found only if the trial court imposes consecutive sentences where the law requires concurrent sentences, where the court imposes concurrent sentences but the law requires consecutive ones, or where the court otherwise fails to observe the statutory requirements pertaining to sentencing. Nicholas, 56 S.W.3d at 764. In short, so long as the law authorizes the imposition of cumulative sentences, a trial judge has absolute discretion to stack sentences. Id.; see Quintana v. State, 777 S.W.2d 474, 480 (Tex. App.–Corpus Christi 1989, pet. ref’d).
In the case at hand, Appellant was convicted of four counts of aggravated sexual assault of a child younger than fourteen years of age. Thus, the law authorizes the imposition of cumulative sentences. See Tex. Pen. Code Ann. § 3.03(b)(2)(A); Tex. Code Crim. Proc. Ann. art. 42.08(a). Furthermore, each of Appellant’s forty year sentences fell within the statutory range for the offense for which Appellant was convicted. See Tex. Pen. Code Ann. 12.32(a), 22.021(e) (Vernon 2003 & Supp. 2006). Furthermore, having reviewed the facts in this case, we do not conclude that the trial court’s order to cumulate Appellant’s sentences was improper. Therefore, we hold that the trial court did not abuse its discretion when it ordered that Appellant’s sentences run consecutively. See Nicholas, 45 S.W.3d at 764–65. Appellant’s first issue is overruled.
Cruel and Unusual Punishment
In his second issue, Appellant contends that each of the forty year sentences imposed on him constituted cruel and unusual punishment under both the Texas and United States constitutions. Initially, we note that Appellant made no objection to the trial court raising the issue of cruel and unusual punishment and has, therefore, waived such an issue on appeal. 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); Tex. R. App. P. 33.1. However, even absent waiver, we conclude that Appellant’s sentence did not constitute cruel and unusual punishment.1
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 four counts of aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021(a) (Vernon Supp. 2006). The punishment range for such an offense is imprisonment for life, or for any term between five and ninety-nine years. See Tex. Pen. Code Ann. §§ 12.32(a); 22.021(3) (Vernon 2003 & Supp. 2006). Here, the sentence imposed by the trial court falls within the range set forth by the legislature. Id. 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 3011.2 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 to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder, 954 F.2d at 316; see also Jackson v. State, 989 S.W.2d 842, 845–46 (Tex. App.–Texarkana 1999, no pet.).
In determining whether Appellant’s sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).3 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. Id., 445 U.S. at 266, 100 S. Ct. at 1135. The 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—aggravated sexual assault of a child—were far more serious than any of the offenses committed by the appellant in Rummel, while Appellant’s forty year sentences are far less severe than the life sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the sentence in Rummel was not unconstitutionally disproportionate, then neither are 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 second issue is overruled.
Disposition
Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.
SAM GRIFFITH
Justice
Opinion delivered September 6, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 We note that the court of criminal appeals has held that an order cumulating sentences is not cruel and unusual punishment per se. See Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App.1984).
2 The strict application of the Solem test has been questioned since the Supreme Court rendered its opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). See Simmons, 944 S.W.2d at 15. The Texarkana Court of Appeals discussed the applicability of Solem in Davis v. State and observed that five members of the Supreme Court in Harmelin rejected the application of the three factor test. See Simmons, 944 S.W.2d at 15 (citing Davis, 905 S.W.2d at 664). However, the court in Davis nevertheless evaluated the sentence under the elements of Solem, recognizing that seven of the justices in Harmelin still supported an Eighth Amendment prohibition against grossly disproportionate sentences. See Davis, 905 S.W.2d at 664 (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992) and Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.–Dallas 1994, pet. ref’d)).
3 Incidentally, the Fifth Circuit has referred to Rummel as a “handy guide” in conducting a proportionality review. See McGruder, 954 F.2d at 317.