      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-01-00365-CR




                                Dennis Joseph Buie, Appellant

                                               v.

                                 The State of Texas, Appellee




      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
        NO. CR-00-116, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING




              Appellant Dennis Joseph Buie struck and killed a bicycle rider while driving on the

access road of Interstate 35 in Travis County. Without stopping, he fled to his residence in Hays

County where he attempted to clean his vehicle and removed its shattered windshield. After being

convicted of manslaughter and failing to stop and render aid in Travis County, appellant pleaded

guilty to tampering with physical evidence in Hays County. See Tex. Pen. Code Ann. § 37.09(d)(1)

(West Supp. 2002). The district court adjudged him guilty and imposed a sentence of ten years’

imprisonment to be served consecutively with the seventeen-year sentence he received for

manslaughter. In his only point of error, appellant contends the sentence is disproportionate and

hence unconstitutional. U.S. Const. amend. VIII. We will affirm the conviction.

              Appellant relies on the opinion in McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992),

in support of his Eighth Amendment claim. In McGruder, the court reviewed the opinions in Solem
v. Helm, 463 U.S. 277 (1983), and Harmelin v. Michigan, 501 U.S. 957 (1991), and concluded that

the Eighth Amendment contains a guaranty against disproportionate sentences. See McGruder, 954

F.2d at 316.     According to McGruder, we must first determine whether the sentence is

disproportionate to the offense. Id. If it is, we then compare the sentence in question to sentences

received for similar crimes in the same jurisdiction and in other jurisdictions. Id.

               Appellant’s argument is centered on the cumulation order. He contends that had this

offense been tried with the other offenses arising from this criminal transaction, the sentences would

have been served concurrently. See Tex. Pen. Code Ann. § 3.03 (West Supp. 2002). The offenses

were not tried together, however, and the trial court had the discretionary authority to cumulate the

sentence in this cause with the sentence in the previous Travis County case. Tex. Code Crim. Proc.

Ann. art. 42.08(a) (West Supp. 2002). As a practical matter, the court’s discretion under article

42.08 is absolute. Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.] 2001,

pet. ref’d).

               Appellant also argues that the sentence is excessive because he was not prosecuted

as a recidivist. See Tex. Pen. Code Ann. § 12.42 (West Supp. 2002). Appellant does not explain

why the State’s failure to seek an enhanced punishment under section 12.42 invalidates a punishment

that is within the range prescribed for the offense for which he was convicted. We further note that

it was undisputed at trial that appellant has a previous conviction for driving while intoxicated and

that his license was suspended at the time of the hit-and-run incident.

               We are not persuaded that the punishment imposed by the court is disproportionate

to the offense. Even if we were, the record contains no information by which we could compare



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appellant’s sentence to sentences for similar offenses in Hays County or other jurisdictions. The point

of error is overruled.

               The judgment of conviction is affirmed.




                                               __________________________________________

                                               Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: April 18, 2002

Do Not Publish




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