
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
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
