NO. 12-05-00164-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ANTIGONE OVERSTREET, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Antigone Overstreet appeals her conviction for sexual assault of a child, for which she was sentenced to imprisonment for fifteen years. Appellant raises one issue on appeal. We affirm.
Background
Appellant was charged by indictment with two counts of sexual assault of a child. Appellant pleaded guilty as charged and the issue of punishment proceeded to trial by jury. Following the presentation of evidence and arguments of counsel, the jury assessed punishment at imprisonment for fifteen years. The trial court sentenced Appellant accordingly, and this appeal followed.
Cruel and Unusual Punishment
In her sole issue, Appellant contends that the fifteen year sentence imposed on her constitutes 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.
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 sexual assault of a child. See Tex. Pen. Code Ann. § 22.011(a)(2) (Vernon Supp. 2005). The punishment range for such an offense is between two and twenty years. See Tex. Pen. Code Ann. §§ 12.33(a); 22.011(f) (Vernon 2003 & Supp. 2005). 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 3011.1 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).2 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 offense committed by Appellant—sexual assault of a child—was far more serious than any of the 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 follows 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.
SAM GRIFFITH
Justice
Opinion delivered February 28, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)
1 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)).
2 Incidentally, the Fifth Circuit has referred to Rummel as a “handy guide” in conducting a proportionality review. See McGruder, 954 F.2d at 317.