Robert Eldridge Lee v. the State of Texas

NO. 12-23-00266-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBERT ELDRIDGE LEE, § APPEAL FROM THE 3RD
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Robert Eldridge Lee appeals his conviction for burglary of a habitation. In his sole issue,
Appellant alleges that his sentence is grossly disproportionate to the crime committed. We
affirm.
BACKGROUND
Appellant was charged by indictment with the second-degree felony of burglary of a
habitation. He pleaded “not guilty,” and the matter proceeded to a jury trial. The jury ultimately
found Appellant “guilty.” At the punishment phase, Appellant pleaded “true” to an enhancement
paragraph alleging a prior felony conviction. Following the punishment hearing, the jury
sentenced Appellant to thirty-five years imprisonment and a $7,500 fine. This appeal followed.
CRUEL AND UNUSUAL PUNISHMENT
In his sole issue, Appellant argues that his sentence of thirty-five years imprisonment
amounts to cruel and unusual punishment under the United States Constitution and the Texas
Constitution. Appellant contends that his sentence is grossly disproportionate to his conduct in
committing the offense and that the jury should have imposed a shorter sentence.
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 when the sentence was imposed. Burt, 396 S.W.3d at
577 n.4. In this case, the record does not show that Appellant objected when the sentence was
imposed at trial, and he does not assert that he lacked an opportunity to raise such an objection.
Therefore, it appears that Appellant did not properly preserve error on this issue. However,
assuming arguendo that Appellant did preserve this complaint for appellate review, we cannot
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 burglary of a habitation, a second-degree felony with a punishment range from two
to twenty years of imprisonment. TEX. PENAL CODE ANN. §§ 30.02(c)(2), 12.33 (West 2019).
Additionally, Appellant’s plea of “true” to the previous felony conviction increased the available
punishment range to a minimum of five years imprisonment and a maximum of ninety-nine years
imprisonment, or life imprisonment, and a fine of no more than $10,000.00. Id. §§ 12.42(b);

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12.32 (West 2019). Thus, Appellant’s thirty-five-year sentence 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—burglary of a habitation—is certainly no
less serious than the combination of offenses committed by the appellant in Rummel, while
Appellant’s sentence is 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

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unconstitutionally disproportionate, neither is Appellant’s sentence in this case. In his brief,
Appellant makes a conclusory statement that ‘[i]t is clear that other much more serious burglary
of a habitation convictions resulted in significantly less harsh sentences.” 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 . . .”). 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 issue, we affirm the trial court’s judgment.

BRIAN HOYLE
Justice

Opinion delivered June 21, 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

JUNE 21, 2024

NO. 12-23-00266-CR

ROBERT ELDRIDGE LEE,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 3CR-20-34526)

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.