Steven Lynn Ellis v. the State of Texas

NO. 12-22-00299-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

STEVEN LYNN ELLIS, § APPEAL FROM THE 3RD
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Steven Lynn Ellis appeals his conviction for indecency with a child by sexual contact. In
one issue, Appellant argues that his sentence constitutes cruel and unusual punishment. We
affirm.

BACKGROUND
Appellant was indicted for one count of indecency with a child by sexual contact.
Appellant pleaded “not guilty,” and this matter proceeded to a jury trial. On July 26, 2022, the
jury found Appellant “guilty” of the charged offense. Appellant elected to have the court, rather
than the jury, determine his sentence. The trial court assessed punishment of thirteen years’
imprisonment, and this appeal followed.
CRUEL AND UNUSUAL PUNISHMENT
In his sole issue, Appellant argues that the sentence of thirteen 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. Appellant contends that his
sentence is grossly disproportionate because he has only a limited criminal history and other
defendants in Texas received lesser sentences for the same offense.
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 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664.
In this case, Appellant was convicted of indecency with a child by sexual contact, a
second-degree felony with a punishment range of two to twenty years of imprisonment. See
TEX. PENAL CODE ANN. § 12.33(a); 21.11(d) (West 2023). Thus, the thirteen-year sentence

2
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 this Court to consider the factors 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 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. 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 $80.00 worth of goods or services and the other for passing a forged check in the amount
of $28.36. Id., 445 U.S. at 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.
In this case, the offense Appellant committed—indecency with a child by sexual
contact—is far more serious than the combination of offenses committed by the appellant in
Rummel, while Appellant’s sentence is much 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

3
not unconstitutionally disproportionate, neither is Appellant’s sentence in this case.1 Because we
do not find that the threshold test is satisfied, we need not apply the remaining elements of the
Solem test. Accordingly, we overrule Appellant’s sole issue.

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

BRIAN HOYLE
Justice

Opinion delivered June 8, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

1
In his brief, Appellant makes a conclusory statement that his sentence is grossly disproportionate, stating
that other persons sentenced in Texas for the same crime received significantly shorter sentences than Appellant
received. However, he cites 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....”).

4
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 8, 2023

NO. 12-22-00299-CR

STEVEN LYNN ELLIS,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 3CR-19-34033)

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 the decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.