Opinion filed January 31, 2019




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-17-00078-CR
                                     __________

                EVANGELIA ANN MAYHALL, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 26783A


                      MEMORANDUM OPINION
      The jury convicted Appellant of the first-degree felony offense of injury to a
child and assessed her punishment at confinement for fifty years and a $5,000 fine.
The trial court sentenced Appellant accordingly. In a single issue on appeal,
Appellant contends that her sentence constitutes cruel and unusual punishment under
the Constitution of the United States as well as the Texas Constitution. We affirm.
      Appellant lived with her four-month-old daughter, A.M.; her six-year-old son,
E.M.; her husband, James Mayhall; A.M.’s father, Justin Heiser; and Heiser’s
girlfriend, Breanna Morris. On January 4, 2016, first responders were dispatched to
Appellant’s residence in response to a call that there was an infant there who was
not breathing. First responders found that A.M. was very malnourished, emaciated,
lethargic, and appeared to be near death.      The paramedic and the EMT who
responded, Richard Stephen Sharp and Christopher Kyle McIver, transported A.M.
to the hospital.
      When A.M. arrived at the hospital, her temperature was at a critical low, she
was dehydrated and mildly anemic, and her organs were beginning to shut down.
A.M. stayed in the hospital for ten days, and while she was there, she gained over
two pounds.        When A.M. was discharged from the hospital, Child Protective
Services placed A.M. and E.M. with a foster family, and A.M. recovered.
      In her sole issue on appeal, Appellant contends that her sentence of
confinement for fifty years constitutes cruel and unusual punishment based on the
offense, her age, her need for rehabilitation, and other sentences for similar crimes
in the same and other jurisdictions. We disagree.
      The first responders testified that they had never seen anything like they saw
when they saw A.M. They described A.M.’s appearance as one of the worst things
that they had ever seen. Jennifer Hudgins, an investigator with the Department of
Family and Protective Services, testified that A.M. did not look human and that she
did not understand how anyone would let an infant get so close to death.
      Dr. Leslie Marie Sharpe, the attending physician in the emergency room to
which Sharp and McIver took A.M., testified that A.M. had a serious bodily injury:
severe malnutrition. A.M. had folds in her thighs from malnutrition and did not have
any fat on her body. Dr. Sharpe testified that, even in her work at a malnutrition


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feeding center in Honduras, she had not seen any children with malnutrition that
severe.
      Dr. Amy McClatchy, A.M.’s pediatrician, testified that it would have taken
around seventy days of food deprivation for A.M.’s organs to start shutting down
and that the honey that Appellant put on A.M.’s pacifier is probably what kept A.M.
alive. Dr. McClatchy also testified that a person would not have to have had medical
experience to know that there was something wrong with A.M.; she was as near
death as one could get.
      The record contains evidence that Appellant did not appear to be concerned
about A.M. During the 9-1-1 call that she made, Appellant said that A.M. was better;
nevertheless, she requested that emergency personnel come and check on her. Upon
arrival at the emergency room, although Appellant told Dr. Sharpe that she did not
think anything was wrong with A.M. other than lethargy, she could not tell
Dr. Sharpe when she had last fed A.M.
      Even though Appellant claimed that she breastfed A.M., Detective Cati Wolfe
of the Abilene Police Department testified that Appellant was “not leaking and [had
not] complained or asked to go pump at all” during the four to five hours that
Appellant was accompanied by officers after bringing A.M. to the hospital.
Appellant testified that, prior to going to the hospital, she was not lactating.
      Appellant had similar issues when she breastfed E.M. When E.M. had not
gained enough weight, Appellant took him to a doctor and then supplemented
breastfeeding with formula.       Furthermore, she took E.M. to all his doctor
appointments.
      To the contrary, Appellant did not take A.M. to her pediatrician for checkups.
Appellant admitted that she lied to Detective Adam Becker, the investigating officer,
when she told him that she took A.M. to the doctor in November; that A.M. was
healthy at that appointment; and that, at that appointment, the doctor told her not to
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give A.M. formula because A.M. was doing so well. Even though she made a
January appointment to take A.M. to the doctor and even though A.M. was clearly
very ill, Appellant did not take A.M. to the doctor’s office to be weighed or to find
out whether A.M. was receiving adequate nutrition.
      Appellant testified that A.M. started to appear thin at the end of December.
Appellant thought that she stopped producing enough milk around Thanksgiving.
However, even though Appellant could afford formula, she did not know why she
did not buy any. She testified that A.M. went “steadily downhill” for four or five
days but that she did not notice that A.M. had lost more than two pounds between
September, when WIC personnel weighed A.M., and the date that first responders
took A.M. to the emergency room. Although Appellant said that she was alarmed
by A.M.’s appearance, she told Detective Becker that she had seen worse on “the
National Geographic channel or something.” She testified that her intent was not to
hurt A.M. and that, if she had to do it all over again, she probably would have taken
A.M. to Dr. McClatchy.
      The first responders and the Child Protective Services Investigator testified
that Appellant’s residence smelled like urine, feces, and cigarette smoke and that the
floor was covered in feces, trash, and clutter. McIver testified that he had not
smelled any house worse than this one. Although there was no formula anywhere
in the house, there was adult food, alcohol, and cigarettes; trash was everywhere.
Child Protective Services took possession of A.M. and E.M. and later successfully
obtained a termination of the parents’ parental rights. At the time of trial, A.M. was
doing well.
      In our review of the record, we note that Appellant failed to object in the trial
court that her sentence constituted cruel and unusual punishment.           Therefore,
Appellant has waived that issue on appeal. Rhoades v. State, 934 S.W.2d 113, 120
(Tex. Crim. App. 1996) (failing to object at trial waives claim that sentence violates
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the Texas Constitution’s prohibition against cruel and unusual punishment); Curry v.
State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (failing to make specific
objection at trial waives a claim of cruel and unusual punishment under the United
States Constitution).
      Even if Appellant preserved the issue, the trial court did not abuse its
discretion when it assessed Appellant’s sentence. When we review a trial court’s
sentencing determination, “a great deal of discretion is allowed the sentencing
judge.” Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We will
not disturb a trial court’s decision as to punishment absent a showing of an abuse of
discretion and any harm that results from that abuse. Id. (citing Hogan v. State, 529
S.W.2d 515 (Tex. Crim. App. 1975)).
      The Eighth Amendment to the Constitution of the United States provides:
“Excessive 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.
Robinson v. California, 370 U.S. 660, 675 (1962). There is no significant difference
between protection against cruel and unusual punishment under the United States
Constitution and the protection against cruel or unusual punishment under the Texas
Constitution. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997) (citing
Anderson v. State, 932 S.W.2d 502, 509–10 (Tex. Crim. App. 1996)). When a
sentence falls within the range of punishment provided by the legislature, it is
generally not grossly disproportionate to the offense committed. State v. Simpson,
488 S.W.3d 318, 323 (Tex. Crim. App. 2016). Here, Appellant concedes that her
fifty-year sentence is within the statutory range of punishment for the first-degree
felony of which she was convicted. See TEX. PENAL CODE ANN. § 12.32(a) (West
2011) (punishment for first-degree felony is five to ninety-nine years’ imprisonment
or life); id. § 22.04(e) (West Supp. 2018) (injury to a child is first-degree felony).
                                           5
      However, even if a sentence falls within the statutory punishment range, the
sentence may violate the Eighth Amendment if the sentence is grossly
disproportionate to the offense or to sentences in other similar offenses. See Solem v.
Helm, 463 U.S. 277, 289–90 (1983). To determine whether a sentence for a term of
years is grossly disproportionate for a particular defendant’s crime, we consider the
severity of the sentence in light of the harm caused or threatened to the victim, the
culpability of the offender, and the offender’s prior adjudicated and unadjudicated
offenses. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (citing
Graham v. Florida, 560 U.S. 48, 60 (2010); McGruder v. Puckett, 954 F.2d 313, 316
(5th Cir. 1992) (noting that the Supreme Court’s holding in Harmelin v. Michigan,
501 U.S. 957 (1991), modified the gross-disproportionality test previously set out in
Solem, 463 U.S. 277 (1983)). In the rare case in which this analysis leads to an
inference of gross disproportionality, we compare the defendant’s sentence with the
sentences received by other offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions. Graham, 560 U.S. at 60. If this
comparative analysis confirms that the sentence is grossly disproportionate, the
sentence is cruel and unusual. Id.
      We conclude that the trial court did not abuse its discretion when it imposed
a fifty-year sentence.    The evidence showed that Appellant intentionally or
knowingly failed to give A.M. enough food for a time so significant that A.M. was
“about as near death as you could get”; she did not look human. Dr. Sharpe had
never seen a case of malnutrition as severe as that suffered by A.M., not even in the
malnutrition feeding centers in Honduras. Although there was a supply of adult
provisions in the house, there was no formula for A.M., and A.M. did not receive
sufficient nourishment from breastfeeding. Appellant did not appear concerned
about A.M. when A.M. arrived at the emergency room. Even if Appellant did not
waive error, her sentence, under this record, is not grossly disproportionate to this
                                          6
offense.      Consequently, we need not compare Appellant’s sentence with the
sentences received for similar crimes in this or other jurisdictions. See id. We
overrule Appellant’s sole issue on appeal.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


January 31, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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