NO. 12-06-00399-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
SENECA LLEWLYN MCKENZIE, § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Seneca Llewlyn McKenzie appeals his conviction for delivery of between four and two hundred grams of cocaine, for which he was sentenced to imprisonment for eighteen years. In one issue, Appellant argues that his sentence amounted to cruel and unusual punishment. We affirm.
Background
Appellant was charged with delivery of between four and two hundred grams of cocaine and pleaded “not guilty.” A jury found Appellant guilty as charged and the matter proceeded to a bench trial on punishment. At the conclusion of the trial on punishment, the trial court sentenced Appellant to imprisonment for eighteen years. This appeal followed.
Cruel and Unusual Punishment
In his sole issue, Appellant contends that the sentence 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.
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 delivery of between four and two hundred grams of cocaine. See Tex. Health & Safety Code Ann. §§ 481.112(d); 481.102(3)(D) (Vernon 2003 & Supp. 2006). The punishment range for such an offense is between five and ninety-nine years, or life. See Tex. Health & Safety Code Ann. § 481.112(d); Tex. Penal Code Ann. § 12.32(a) (Vernon 2003). Here, the punishment assessed 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—delivery of between four and two hundred grams of cocaine—was far more serious than any of the offenses committed by the appellant in Rummel, while Appellant’s eighteen 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.
BRIAN HOYLE
Justice
Opinion delivered May 29, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, 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.