John William Wood v. the State of Texas

NO. 12-21-00170-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHN WILLIAM WOOD, § APPEAL FROM THE 349TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION
John William Wood appeals his conviction for assault on a peace officer. In one issue,
Appellant argues that the punishment assessed by the trial court was excessive and grossly
disproportionate to the crime committed. We affirm.

BACKGROUND
Appellant was charged by indictment with assault on a peace officer by intentionally,
knowingly, or recklessly causing bodily injury to an individual by kneeing him in the genitals,
and Appellant did then and there know that the individual was a police officer and that the
individual was lawfully discharging an official duty, to wit, arresting Appellant, a third degree
felony. 1 The indictment also alleged two felony enhancement paragraphs. Appellant pleaded
“not guilty,” and the case proceeded to a jury trial. The jury found Appellant “guilty” of assault
on a peace officer as alleged in the indictment. At the punishment hearing, Appellant pleaded
“true” to both enhancement paragraphs, and the jury assessed his punishment at forty-five years
of imprisonment. 2 This appeal followed.

1
See TEX. PENAL CODE ANN. § 22.01(a), (b)(1) (West Supp. 2021).
2
See id. § 12.42(d) (West 2019). If it is shown on the trial of a felony offense other than a state jail felony
punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses,
CRUEL AND UNUSUAL PUNISHMENT
In his sole issue on appeal, Appellant argues that the punishment assessed by the trial
court was excessive, grossly disproportionate to the crime committed, and therefore, violated the
Eighth Amendment of the United States Constitution’s prohibition against 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

and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction
having become final, on conviction the defendant shall be punished by imprisonment for life, or for any term of not
more than ninety-nine years or less than twenty-five years. Id.

2
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
convicted of assault on a peace officer, a third degree felony, enhanced by two previous felony
convictions, for which the punishment range is life, or for any term not more than ninety-nine
years or less than twenty-five years. See TEX. PENAL CODE ANN. §§ 12.42(d), 22.01(b)(1).
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

3
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.
In this case, the offense committed by Appellant—assault on a peace officer—is no less
serious than the combination of offenses committed by the appellant in Rummel, while
Appellant’s forty-five 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 the facts in this case “when
considered in conjunction with other testimony,” make this sentence grossly disproportionate to
the offense committed. Further, he states that “[i]t is clear that other much more serious assault
on a peace officer cases resulted in significantly less harsh sentences than Appellant received.”
However, he cites to no facts or authority to support either of these contentions. 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.

GREG NEELEY
Justice

Opinion delivered March 23, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 23, 2022

NO. 12-21-00170-CR

JOHN WILLIAM WOOD,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 349th District Court
of Houston County, Texas (Tr.Ct.No. 21CR-033)

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.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.