NO. 12-20-00031-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MARK KIMBROUGH, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Mark Kimbrough appeals his conviction for bail jumping and failure to appear. In one
issue, Appellant argues that his sentence is disproportionate to the crime for which he was
convicted. We affirm.
BACKGROUND
Appellant was charged by indictment with bail jumping and failure to appear after being
released on a pending felony charge, a third-degree felony. 1 Appellant pleaded “not guilty” and
the matter proceeded to a jury trial. The jury found Appellant “guilty” as charged. Appellant
previously elected to have the trial court assess punishment in the event he was convicted. At the
sentencing hearing, Appellant pleaded “true” to the enhancement paragraph that he was
previously convicted of the felony offense of aggravated assault with a deadly weapon,
enhancing the crime to a second-degree felony. 2 Following evidence and argument, the trial
court assessed punishment at eight years imprisonment. This appeal followed.
1
See TEX. PENAL CODE ANN. § 38.10(f) (West 2016).
2
See TEX. PENAL CODE ANN. § 12.42(a) (West 2019).
CRUEL AND UNUSUAL PUNISHMENT
In his sole issue, Appellant argues that the eight-year sentence imposed by the trial court
is grossly disproportionate to the crime committed and amounts 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 sentence 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 sentence does 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
2
convicted of bail jumping and failure to appear, enhanced, the punishment range for which is no
less than two years but no more than twenty years. See TEX. PENAL CODE ANN. §§ 12.33(a)
(West 2019); 12.42(a) (West 2019); 38.10(a), (f) (West 2016). Thus, the sentence imposed by
the trial court falls within the range set forth 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 sentence is grossly disproportionate to his crime. 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.
3
In this case, the offense committed by Appellant—bail jumping and failure to appear—is
no less serious than the combination of offenses committed by the appellant in Rummel, while
Appellant’s eight-year sentence is 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, neither is the sentence assessed against Appellant in this case.
In his brief, Appellant makes a conclusory statement that his eight-year sentence is grossly
disproportionate, stating that other sentences for “much more serious bail jumping/failure to
appear cases” resulted in “significantly” less harsh sentences. 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 sentence is 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.
BRIAN HOYLE
Justice
Opinion delivered October 30, 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
OCTOBER 30, 2020
NO. 12-20-00031-CR
MARK KIMBROUGH,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 3CR-19-34343)
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.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.