Marquis Decole Long v. the State of Texas

NO. 12-23-00205-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARQUIS DECOLE LONG, § APPEAL FROM THE 369TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Marquis Decole Long appeals his conviction for possession of a controlled substance. In
his sole issue, Appellant argues that the sentence imposed by the trial court amounts to cruel and
unusual punishment because it is disproportionate to (1) other sentences for the same offense and
(2) the facts and circumstances constituting Appellant’s offense. We affirm.

BACKGROUND
Appellant was charged by indictment with possession of a controlled substance
(methamphetamine) with intent to deliver, in an amount of four grams or more but less than two
hundred grams. The matter proceeded to trial, and the jury found Appellant “not guilty” of
possession of a controlled substance with intent to deliver, but found him “guilty” of the lesser-
included offense of possession of a controlled substance. Appellant elected for the jury to assess
his punishment, and after hearing evidence during the punishment phase, the jury found that two
enhancement paragraphs were “true” and sentenced Appellant as a habitual offender to ninety-
nine years of confinement. 1 The trial court sentenced Appellant in accordance with the jury’s
findings. This appeal followed.

CRUEL AND UNUSUAL PUNISHMENT
In his sole issue, Long argues that the ninety-nine-year sentence imposed by the trial court
amounts to cruel and unusual punishment because it is disproportionate to other sentences for the
same offense and the facts and circumstances of the crime committed. However, Appellant did
not raise a timely objection in the trial court regarding the issue of cruel and unusual punishment,
and he therefore failed to preserve any such error. See Rhoades v. State, 934 S.W.2d 113, 120
(Tex. Crim. App. 1996) (waiver of rights under Texas Constitution); Curry v. State, 910 S.W.2d
490, 497 (Tex. Crim. App. 1995) (waiver of rights under United States Constitution); see also TEX.
R. APP. P. 33.1(a); see also 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 Court itself to take up error preservation
as a threshold issue.”). For the reasons explained herein, despite Appellant’s failure to preserve
error, we conclude that his sentence does not constitute cruel and unusual punishment.
“The legislature is vested with the power to define crimes and prescribe penalties.” 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 the second-degree felony offense of possession of a controlled substance in an amount
of four grams or more, but less than two hundred grams. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(d) (West Supp. 2023). The State alleged five enhancement paragraphs, which indicated
that Appellant was previously convicted of five felonies: (1) possession of a controlled substance
in Galveston County, Texas; (2) delivery of a controlled substance in Galveston County, Texas;
(3) possession of a prohibited weapon in Galveston County, Texas; (4) theft of property in

1
The indictment contained one enhancement paragraph, but the State subsequently filed a notice of
enhancement paragraphs, which included the original enhancement paragraph from the indictment as well as four
additional enhancement paragraphs.

2
Anderson County, Texas, after previously being convicted of the offenses set forth in paragraphs
one, two, and three, resulting in enhanced punishment; and (5) a second charge of theft of property
in Anderson County, Texas, after being previously convicted of the offense set forth in paragraphs
one, two, and three, resulting in enhanced punishment. Appellant pleaded “not true” to each of
the enhancement paragraphs.
The jury found enhancement paragraphs four and five “true” and assessed punishment at
ninety-nine years of confinement. See TEX. PENAL CODE ANN. § 12.42(d) (West 2019) (providing
that if it is shown on trial of non-state-jail felony that defendant has previously been convicted of
two felony offenses, and second previous felony conviction is for offense that occurred after first
previous conviction became final, on conviction, defendant shall be punished by imprisonment for
life or for any term of not more than 99 years or less than 25 years); see also id. § 12.32(a) (West
2019) (setting range of punishment for first-degree felony at life or term of not more than ninety-
nine years or less than five years). The ninety-nine-year sentence imposed falls within the range
set by the Legislature. Therefore, the punishment is not prohibited as cruel, unusual, or excessive
per se. See Harris, 656 S.SW.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 a threshold determination of whether Appellant’s sentence is grossly
disproportionate to his crime. In Rummel, the United States Supreme Court addressed the
proportionality claim of an appellant who received a mandatory life sentence under a prior version

3
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. 1135. The appellant in Rummel received a life sentence because
he had two prior felony convictions – one for fraudulent use of a credit card to obtain goods worth
$80.00 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 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 the instant case, Appellant’s second-degree felony offense – possession of a controlled
substance in an amount of four grams or more but less than two hundred grams, enhanced by two
prior felony convictions to the punishment range for a first-degree felony – is no less serious than
the combination of offenses committed by the appellant in Rummel, and Appellant’s ninety-nine-
year sentence is no more severe 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. We overrule issue one.

DISPOSITION

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

GREG NEELEY
Justice

Opinion delivered January 24, 2024.
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

JANUARY 24, 2024

NO. 12-23-00205-CR

MARQUIS DECOLE LONG,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 369th District Court
of Anderson County, Texas (Tr.Ct.No. 369CR-22-36022)

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.