Kevin Dewayne Lockett v. the State of Texas

NO. 12-22-00002-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KEVIN DEWAYNE LOCKETT, § APPEAL FROM THE 87TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Kevin DeWayne Lockett appeals his conviction for aggravated assault with a deadly
weapon. In a single issue, Appellant contends his sentence constitutes cruel and unusual
punishment. We affirm.

BACKGROUND
In July 2020, Appellant was charged by indictment with aggravated assault with a deadly
weapon and assault family violence by impeding breath or circulation. The indictment also
included an enhancement paragraph alleging Appellant was previously convicted of aggravated
sexual assault of a child. Appellant pleaded “not guilty” to both charges, and the matters
proceeded to a jury trial. The jury ultimately found Appellant “guilty” of aggravated assault with
a deadly weapon and “not guilty” of assault family violence by impeding breath or circulation.
At the trial on punishment, Appellant pleaded “true” to the enhancement paragraph. The jury
sentenced Appellant to sixty years imprisonment. This appeal followed.
CRUEL AND UNUSUAL PUNISHMENT
In his sole issue, Appellant argues that the sentence of sixty years imprisonment is
grossly disproportionate to the crime committed and amounts to cruel and unusual punishment
under the United States Constitution and the Texas Constitution.
Before a complaint may be presented for appellate review, the record must show that
Appellant raised the complaint to the trial court by a timely request, objection, or motion. TEX.
R. APP. P. 33.1(a)(1); see Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.
ref’d). A complaint that a sentence is grossly disproportionate and constitutes cruel and unusual
punishment may be preserved by objecting at the punishment hearing, or when the sentence is
pronounced. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); Kim, 283 S.W.3d at
475. An appellant may raise a sentencing issue for the first time in a motion for new trial only if
he did not have an opportunity to object during the punishment hearing. Burt, 396 S.W.3d at 577
n.4. In this case, Appellant did not object at the punishment hearing when his sentence was
pronounced. Because Appellant had the opportunity to object to his sentence at the punishment
hearing and failed to do so, we conclude that he failed to preserve this issue for our review. See
TEX. R. APP. P. 33.1(a)(1); Burt, 396 S.W.3d at 577-78.
Even had Appellant preserved his issue, we could not grant him relief because his
sentence does not constitute cruel and unusual punishment. The United States Constitution
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). Similarly, the Texas Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual
punishment inflicted.” TEX. CONST. art. 1, § 13. The difference between the Eighth
Amendment’s “cruel and unusual” phrasing and the Texas Constitution’s “cruel or unusual”
phrasing is insignificant. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).
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

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S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664. In this case, Appellant was
convicted of aggravated assault with a deadly weapon, a second degree felony, and pleaded
“true” to an enhancement allegation, increasing the punishment range to that of a first degree
felony. The sentence of sixty years imprisonment imposed is within the applicable statutory
enhanced punishment range due to Appellant’s prior felony conviction. See TEX. PENAL CODE
ANN. §§ 12.32 (West 2019), 12.42(b) (West 2019); 22.02 (West Supp. 2023) (punishable by
imprisonment for life or any term not more than 99 years or less than five years). Therefore,
Appellant’s 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.
Nonetheless, Appellant urges this 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. Texas courts and the Fifth Circuit Court of Appeals have
modified the application of the Solem test in light of the United States 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, 445 U.S. 263, 100 S. Ct. 1133, 63 L.
Ed. 2d 382 (1980), in making the threshold determination of whether Appellant’s sentence is
grossly disproportionate to his crime. In Rummel, the Supreme Court addressed 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 Rummel, the appellant received a life
sentence because he 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 considering the purpose of the habitual offender

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statute, the Supreme 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 this case, Appellant’s offense—aggravated assault with a deadly weapon with the
punishment range enhanced because of Appellant’s previous conviction for aggravated assault of
a child—is more serious than the combination of offenses committed by the appellant in
Rummel, but Appellant’s sixty-year sentence is less than the life sentence upheld in Rummel.
Thus, it is reasonable to conclude that if the sentence in Rummel is not constitutionally
disproportionate, neither is the sentence imposed upon Appellant. 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. See McGruder, 954 F.2d at 316; Jackson, 989 S.W.2d at 845-46.
Accordingly, we overrule Appellant’s sole issue.

DISPOSITION
Having overruled Appellant’s single issue, we affirm the trial court’s judgment.

BRIAN HOYLE
Justice

Opinion delivered February 29, 2024.
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

FEBRUARY 29, 2024

NO. 12-22-00002-CR

KEVIN DEWAYNE LOCKETT,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 87th District Court
of Anderson County, Texas (Tr.Ct.No. 87CR-20-34650)

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.