AFFIRM; and Opinion Filed July 17, 2018.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-17-00592-CR
                                      No. 05-17-00595-CR
                                      No. 05-17-00596-CR

                            TYLER ANTONIO GALE, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                    On Appeal from the 195th Judicial District Court
                                  Dallas County, Texas
            Trial Court Cause Nos. F15-76789-N, F15-76792-N, & F15-76793-N

                             MEMORANDUM OPINION
                        Before Justices Francis, Fillmore, and Whitehill
                                 Opinion by Justice Fillmore
       Tyler Antonio Gale was indicted for five indecency with a child by exposure offenses and

one attempted aggravated kidnapping offense. See TEX. PENAL CODE ANN. §§ 20.04(a)(4) (West

2011), 21.11(a)(2)(A) (West Supp. 2017). Gale pleaded guilty to the five indecency offenses

without an agreement as to punishment and not guilty to the attempted aggravated kidnapping

offense. After a bench trial on the attempted aggravated kidnapping offense, the trial court found

Gale guilty of the attempted aggravated kidnapping offense and the five indecency offenses. The

trial court sentenced Gale to eight years’ imprisonment on the attempted aggravated kidnapping

offense and on two of the indecency offenses. The trial court “stacked” the sentences and ordered

that Gale would not begin serving his sentences on the two indecency offenses until after he was
released from confinement on the attempted aggravated kidnapping offense. On the remaining

three indecency offenses, the trial court sentenced Gale to ten years’ imprisonment, suspended the

sentences, and placed Gale on community supervision for ten years, beginning when he was

released from confinement on the two indecency offenses.1

          Gale filed a motion for new trial arguing the judgments were not “in the interest of justice”

and were contrary to the law and the evidence. Gale also moved for a new trial on punishment on

grounds the sentences were grossly disproportionate “in light of [his] having previously been

assessed for competency and because [his] sentence or sentences are violative of the goals of the

Texas Penal Code that are directly expressed by the actual language thereof” and he was denied

his common law and statutory rights to allocution. The trial court did not conduct a hearing on the

motion for new trial, and it was overruled by operation of law. See TEX. R. APP. P. 21.8(a),(c).

          In four issues, Gale argues the trial court erred by exhibiting bias and acting as an advocate

for the State, violating his statutory and common law rights to allocation, and imposing greatly

disproportionate punishments. We affirm the trial court’s judgments.

                                                           Judicial Bias

          In his first issue, Gale contends his due process rights were violated when the trial judge

exhibited bias against him and acted as an advocate for the State by asking questions during the

proceedings. Gale specifically complains that two questions asked by the trial judge, one at a

pretrial hearing and one during the guilt phase of the trial, demonstrated the trial judge was not

acting as a neutral arbiter.




     1
       Gale appealed these three judgments, but voluntarily withdrew those appeals. See Gale v. State, Nos. 05-17-00591-CR, 05-17-00593-CR,
& 05-17-00594-CR, 2017 WL 4930385, at *1 (Tex. App.—Dallas Oct. 31, 2017, no pet.) (mem. op., not designated for publication).

                                                                  –2–
                                           Relevant Facts

       At a pretrial hearing on October 31, 2016, the trial judge confirmed that Gale understood

the six charges against him and the punishment ranges for the charges. The trial judge then

discussed with Gale the plea bargain offered by the State, his eligibility for parole, and the

consequences of violating any conditions of parole or probation. Gale indicated he did not accept

the State’s plea offer and wanted to go to trial before a jury on each case. Gale confirmed he

understood he faced the possibility of longer sentences by doing so.

       The prosecutor informed the trial judge that the State intended to try each of the cases and

would seek a maximum sentence on each offense. The prosecutor stated that, because Gale had

confessed to all the indecency offenses, obtaining a guilty verdict on those offenses would not be

“as difficult as it can be.” The prosecutor indicated the State believed the plea offer was “more

than fair considering the circumstances and considering the number of victims,” and that the offer

was intended to both punish Gale and give him an opportunity for rehabilitation. However, if Gale

was “not wanting to get help,” the State would “try to get him locked up for as long as possible for

the safety of Dallas County.”

       The trial judge asked the prosecutor if the State planned to request that the sentences be

stacked. After the prosecutor answered affirmatively, the trial judge asked Gale, “[D]id you

confess to these exposures?” Gale responded, “Yes, sir.” The trial judge then explained to Gale

that it was “not gonna be easy to win a case if you’ve already confessed.” Gale’s counsel stated

he had discussed with Gale the possibility of a “slow plea” on the indecency offenses as they were

set for trial and “that’s the option that he’s probably gonna elect.”

       The trial judge explained to Gale the options of trying the cases to a jury or to the bench or

pleading guilty to the indecency offenses and having either a jury or the trial judge decide

punishment. The trial judge also explained that, if Gale pleaded guilty, he could be placed on

                                                 –3–
community supervision or sentenced to prison. Gale responded he was not guilty of the attempted

aggravated kidnapping and “[t]hat’s what [he was] hoping to beat.” The trial judge asked the

prosecutor if the State was willing to offer a plea bargain on the indecency offenses and go to trial

on the attempted aggravated kidnapping. The prosecutor would not agree to that proposal.

       After Gale stated he wanted a bench trial on the attempted aggravated kidnapping offense,

the trial judge suggested that Gale discuss the indecency offenses with his attorney and asked if

Gale had any questions. Gale responded, “Well, knowing that I am guilty of all the exposure

charges –.” The trial judge interrupted Gale and admonished him:

       You should not, at this point, admit your guilt to anything. I’m just saying if you
       have signed confessions and are guilty a trial may not get you anywhere. Don’t
       stand there and admit anything yet if you don’t know what you’re going to do.

Gale subsequently pleaded guilty to the indecency offenses without the benefit of a plea agreement.

       The attempted aggravated kidnapping charge was tried to the bench. M.W. testified that,

on May 26, 2015, she was seventeen and walking to school alone. A car passed her, turned around,

and parked in the Salvation Army parking lot. The man driving the car walked out of the parking

lot and started walking toward M.W. on the opposite side of the street. After the man passed

M.W., he crossed the street, came up behind her, and put her in a “bear hug.”

       According to M.W., the man was “pulling her.” M.W. “dropped down to the ground” so

that “it would be harder for him to pull.” M.W. also began screaming and yelling for help. She

felt the man “trying to drag” her “toward the way of where his car was.” Another student, A.P.,

saw the incident and ran to help M.W. As A.P. approached, the man let go of M.W., ran to his

car, and drove off.

       A.P. testified he was walking toward M.W. on May 26, 2015, and saw a car pull into the

“recreation center.” A.P. saw a man get out of the car, walk past M.W., turn around, and grab her

as if he was going to “put her in headlock.” M.W. dropped to the ground, and the man tried to

                                                –4–
pick her up. According to A.P., it looked like the man was trying to “take her, as in grab her in

what he came to do.” A.P. clarified that “[w]hatever was intended in his mind for him to do, he

was still trying to do that until I ran up.” When A.P. ran over to M.W., the man “ran off and got

in his car.” The trial court asked A.P. to clarify whether the man actually touched M.W. and where

he touched her.

           Detective Clark2 testified he was assigned to investigate the offense and watched

surveillance video obtained from the Salvation Army. Detective Clark initially did not have a

suspect. However, on December 2, 2015, another incident occurred at the same location. In that

case, a man got out of a parked car, and followed a student, T.S. The man was naked from the

waist down and was masturbating. Detective Clark believed the two cases might be related and

issued a press release. The Desoto Police Department contacted Detective Clark and told him that

Gale had been arrested in Desoto for exposing himself in a similar manner to adult women in a

park.

           Detective Clark was also investigating an incident that had occurred on October 14, 2015,

involving P.M., a sixteen-year-old student at another high school. As P.M. was walking home

from school, a man followed her into a field.                     The man was not wearing pants and was

masturbating. P.M. looked at a photo lineup and identified Gale as the man who had approached

her.

           Detective Clark subsequently interviewed Gale. Gale confessed to the indecency offenses

involving T.S. and P.M. as well as to three additional indecency offenses based on similar conduct.

Gale admitted that, during one of the other incidents, he touched the girl on her “butt.” Gale also

admitted he grabbed M.W. and stated he was aware from news reports that he was accused of

trying to kidnap her. Gale denied he was attempting to kidnap M.W., and stated he just wanted to


   2
       Detective Clark’s first name is not in the record.

                                                            –5–
kiss her on the cheek. The recorded video of Detective Clark’s interview of Gale was admitted

into evidence and viewed by the trial judge.

       At the conclusion of Detective Clark’s testimony, the trial judge asked:

       Detective, based on your training and experience, based on your investigation of
       this case, and your interview, do you have an opinion as to what his intent was that
       day?

Detective Clark responded:

       His intent was to take her and put her in his car. There’s no doubt in my mind.
       And, Judge, in seven years of doing this he’s on the radar, but he’s one of the more
       scary suspects I’ve ever dealt with because of how he went out for these girls and
       he specifically picked them out, a couple of them based on being alone.

       And so in my opinion, [A.P.], without being corny, [A.P.] was the hero that day.
       Had he not come, he either takes her into his car or he takes her into the vegetation
       and does what he wants to do with her. He’s a scary individual, based on my seven
       years, based on 15 to 20 cases a month, he’s scary.

       Gale also testified during the guilt phase of the trial. Gale admitted grabbing M.W., but

stated he only wanted to kiss her on the cheek. Gale denied that he pulled M.W. toward his car.

According to Gale, if he had intended to kidnap M.S., he would not have parked his car at the

Salvation Army, locked it, and put the keys in his pocket. Gale also pointed out there were houses

and apartments in the area, he “wouldn’t really call it a 100 percent isolated place,” and he did not

try to hold M.W. in a place where there was no one around. Gale testified he was not in a “right

frame of mind” at the time of offense. Using a photograph of the scene, the trial judge asked Gale

several questions about where he grabbed M.W. and the location of houses in the area.

                                               Analysis

       Gale argues the trial judge took on the role of an advocate by questioning Gale during the

pretrial hearing and Detective Clark during the guilt phase of the bench trial on the attempted

aggravated kidnapping offense. Gale did not object to either question, but argues the trial judge’s




                                                 –6–
questions constituted fundamental and structural error that may be raised for the first time on

appeal.

           Most appellate complaints must be preserved by timely request for relief in the trial court.

TEX. R. APP. P. 33.1(a)(1); Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013). However,

there are some exceptions to this rule. See Marin v. State, 851 S.W.2d 275, 278–80 (Tex. Crim.

App. 1993). The court of criminal appeals has recognized two “relatively small” categories of

errors—violations of “rights which are waivable only” and denials of “absolute systemic

requirements”—which may be addressed on appeal regardless of whether an objection was made

in the trial court. Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (citing Marin, 851

S.W.2d at 280).

           In Proenza v. State, 541 S.W.3d 786, 788–89 (Tex. Crim. App. 2017), the court of criminal

appeals considered whether a complaint that the trial court’s questions and statements to a witness

constituted an improper comment on the weight of the evidence3 fell within either of these two

categories of error and could be raised for the first time on appeal. The court noted the “question

of error preservation turns not upon the ‘circumstances under which [an error] was raised,’ but

upon the ‘nature’ of the error itself.” Id. at 796 (quoting Ex parte Heilman, 456 S.W.3d 159, 166

(Tex. Crim. App. 2015)). Turning to whether a complaint the trial judge improperly commented

on the weight of the evidence was a forfeitable right, the court stated our adversarial system

“depends upon, or at the very least assumes, the decision-maker’s impartiality.” Id. at 799. The

court concluded the “right to be tried in a proceeding devoid of improper judicial commentary is

at least” a waivable-only right under Marin. Id. at 801. In light of Proenza, we will assume,




      3
        See TEX. CODE CRIM. PROC. ANN. art. 38.05 (West 1979) (“In ruling upon the admissibility of evidence, the judge shall not discuss or
comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of
the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.”).

                                                                        –7–
without deciding, that Gale was not required to object to the trial judge’s questions in order to raise

his complaint on appeal.

            “In the Texas adversarial system, the judge is a neutral arbiter between advocates . . . he is

not involved in the fray.” Brown v State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003). Due

process requires a neutral and detached judge. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim.

App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). A judge must not (1) have an

actual bias against the defendant, (2) have an interest in the outcome of the case, or (3) assume the

prosecutor’s role. Avilez v. State, 333 S.W.3d 661, 673 (Tex. App.—Houston [1st Dist.] 2010,

pet. ref’d); see also Luu v. State, 440 S.W.3d 123, 128 (Tex. App.—Houston [14th Dist.] 2013, no

pet.) (“A judge should not act as an advocate or adversary for any party.”).4 Generally, we will

not find a due process violation absent a “clear showing of bias” by the trial judge. Brumit, 206

S.W.3d at 645.

            A “neutral and detached” hearing officer is not synonymous with a silent observer.

Marshall v. State, 297 S.W.2d 135, 136–37 (Tex. Crim. App. 1956). A trial judge is permitted to

directly question a witness, including a defendant, when seeking information to clarify a point.

See Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978); Moreno v. State, 900 S.W.2d

357, 359 (Tex. App.—Texarkana 1995, no pet.).5 However, in doing so, the trial judge must not

go beyond permissible questioning by (1) conveying his opinion of the case to the jury and

ultimately influencing their decision, or (2) in the zeal of active participation, becoming an

advocate in the adversarial process and losing the neutral and detached role required for the

factfinder and the judge. Moreno, 900 S.W.2d at 359.6 Because the trial in this case was to the



     4
       See also White v. State, No. 05-17-00397-CR, 2018 WL 1940515, at *1 (Tex. App.—Dallas Apr. 25, 2018, pet. filed) (mem. op., not
designated for publication).
     5
         See also White, 2018 WL 1940515, at *3.
     6
         See also White, 2018 WL 1940515, at *1.

                                                                –8–
bench, there was no danger of the trial judge’s questions influencing a jury. Therefore, only the

second consideration is implicated.

           In a bench trial, the trial judge has more latitude than in a jury trial to question a witness to

obtain information to assist in the fact-finding process. See Moreno, 900 S.W.2d at 359–60

(concluding that, in bench trial, trial judge may ask questions an advocate might ask in order to

assist in fact-finding process); see also Marshall, 297 S.W.2d at 136–37 (concluding that, in bench

trial, trial judge could question witness in order to obtain a clearer idea of merits of case).7 Though

not favored, even extensive and adversarial questioning by a trial judge is permissible in a bench

trial as long as the questions are relevant to the issues before the court and the judge’s impartiality

is not affected. See Guin v. State, 209 S.W.3d 682, 686–87 (Tex. App.—Texarkana 2006, no

pet.).8

           Gale first contends the trial judge abandoned his neutral role by eliciting from Gale at the

pretrial hearing “the damaging admission that [he] had confessed to the five [indecency] offenses.”

However, the trial judge did not ask Gale if he had committed the offenses. Rather, in the middle

of discussing the status of the plea negotiations and the consequences of Gale refusing the State’s

offer, the trial court inquired whether it was true Gale had confessed to the indecency charges and

then explained to Gale that, in light of the confessions, it might be difficult to prevail at trial. The

trial court also asked the prosecutor whether the State would consider a plea bargain that did not

include the attempted aggravated kidnapping charge.                                        When Gale began to confess to the

indecency offenses, the trial judge immediately interrupted and told him not to do so until he

decided how he wanted to proceed with those cases. From the record as a whole, it is apparent the



      7
        See also White, 2018 WL 1940515, at *3; Jones v. State, No. 05-07-00219-CR, 2008 WL 2440290, at *2 (Tex. App.—Dallas June 18, 2008,
pet. ref’d) (not designated for publication) (“Nevertheless, in a nonjury trial, the trial judge may question a witness to clarify or obtain information
about the facts of the case.”).
     8
       See also White, 2018 WL 1940515, at *3; VanWinkle v. State, No. 03-16-00278-CR, 2016 WL 3974650, at *5 (Tex. App.—Austin July 22,
2016, no pet.) (mem. op., not designated for publication).

                                                                         –9–
trial judge’s question was an attempt to explore whether Gale understood the potential

consequences of refusing the State’s plea offer and was not improper.

       Gale also argues the trial judge abandoned his neutral role by asking Detective Clark to

provide an opinion as to what Gale intended to do when he grabbed M.W. The only substantive

issue at trial was whether Gale intended to kidnap M.W. At the time the trial judge asked Detective

Clark for his opinion about Gale’s intent, both M.W. and A.P. had testified Gale was trying to drag

or take M.W. The trial judge had also seen the recording of Detective Clark’s interview with Gale

in which Gale stated he did not intend to take M.W, but only intended to kiss her on the cheek, and

the video from the Salvation Army surveillance camera that showed the entire encounter lasted no

more than fifteen seconds. The trial judge’s question to Detective Clark, which was neutral on its

face, was an attempt to clarify whether Gale’s conduct constituted something other than an attempt

to kidnap M.W. The trial judge also directed questions to A.P. and Gale on the same issue. On

this record, we cannot conclude the trial judge’s question to Detective Clark was improper.

       The trial judge did not, through his questioning of Gale at the pretrial hearing or Detective

Clark during the guilt phase of the trial on the attempted aggravated kidnapping offense,

demonstrate bias against Gale or become an advocate for the State. The two complained-about

questions do not reflect that the trial judge become so entangled in the role of an advocate that he

lost his ability to remain neutral and detached. See Brumit, 206 S.W.3d at 645; Moreno, 900

S.W.2d at 359–60. We resolve Gale’s first issue against him.

                                            Allocution

       In his second and third issues, Gale contends he is entitled to a new punishment hearing

because the trial court violated his statutory and common law rights to allocution.




                                               –10–
                                          Relevant Facts

       Following the bench trial on March 20, 2017, the trial court found Gale guilty of attempted

aggravated kidnapping, but ordered that Gale undergo a “full sex offender evaluation” before it

assessed punishment on the attempted aggravated kidnapping offense and the five indecency

offenses. The trial court then allowed the State to present the testimony of the punishment

witnesses who were present at trial. On May 5, 2017, the trial court held a sentencing hearing at

which it indicated it had reviewed both the sex offender evaluation report and the pre-sentence

investigation report. Gale then presented punishment evidence pertaining to his request for

community supervision.

       At the end of the hearing, the trial court announced it was “going to set punishment” at ten

years’ confinement on three of the indecency offenses, was “going to” suspend those sentences

and place Gale on community supervision, and the community supervision would begin once Gale

was released from prison. On the remaining two indecency offenses and the attempted aggravated

kidnapping charge, the trial court announced it was “setting punishment” at eight years’

imprisonment and was “stacking” the sentences for the indecency offenses on the sentence for the

attempted aggravated kidnapping offense. The trial court instructed Gale that the offenses were

“non 3G” offenses and Gale would be eligible for parole after he had served two years. The trial

court further advised Gale that, after he was released from prison, he would be on community

supervision for ten years and would be required to attend sex offender counseling as a condition

of community supervision. The trial court cautioned Gale of the consequences of violating the

conditions of community supervision. The trial court advised Gale to be a “model citizen” in

prison and to participate in any available programs. Finally, the trial court discussed with Gale the

sex offender registration requirements.




                                               –11–
       On May 8, 2017, the trial court held another hearing at which it stated it had informed Gale

at the May 5, 2017 hearing of what his sentences were on each of the offenses, but had failed to

formally sentence Gale. The trial court asked Gale’s counsel if there was “any reason in law” to

prevent the trial court from sentencing Gale. Gale’s counsel responded, “None in law, Your

Honor.” After stating it was the “order and judgment of this Court,” the trial court then sentenced

Gale on all the offenses. On June 2, 2017, Gale filed a motion for new trial in each case in which

he complained he had been denied his statutory and common law rights of allocution.

                                              Analysis

       Allocution” refers to a trial court’s inquiry as to whether a criminal defendant wishes to

“speak in mitigation of the sentence to be imposed.” Eisen v. State, 40 S.W.3d 628, 631–32 (Tex.

App.—Waco 2001, pet. ref’d); see also Allocution, BLACK’S LAW DICTIONARY (10th ed. 2014).

Article 42.07 of the code of criminal procedure, which implements a statutory right to allocution,

requires the defendant be asked, before sentence is pronounced, “whether he has anything to say

why the sentence should not be pronounced against him.” TEX. CODE CRIM. PROC. ANN. art. 42.07

(West 2018). The circumstances where sentence cannot be pronounced are limited to when a

defendant (1) has been pardoned, (2) is incompetent to stand trial, or (3) when a defendant escapes

after conviction and before sentencing and another person is brought to sentencing who is not the

defendant. Id. In addition to this statutory right to allocution, Gale contends he had a common

law right to allocution.

       Any right of allocution must be preserved by making a timely and specific objection in the

trial court and obtaining a ruling. McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App.

1974) (op. on reh’g) (concluding appellant failed to preserve complaint trial court violated his right

to “common law allocution” by failing to object in trial court prior to imposition of sentence);

Graham v. State, 498 S.W.2d 197, 198 (Tex. Crim. App. 1973) (concluding appellant waived

                                                –12–
complaint he was denied statutory right of allocation by failing to object in trial court); see also

TEX. R. APP. P. 33.1(a)(1).9 The preservation requirement “ensures that trial courts are provided

an opportunity to correct their own mistakes at the most convenient and appropriate time—when

the mistakes are alleged to have been made.” Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App.

2002).

           Gale did not object prior to sentencing that he had been denied any right to allocution. See

Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013) (“An appellant fails to preserve

error by failing to object when he had the opportunity[.]” (quoting Rickels v. State, 108 S.W.3d

900, 902 (Tex. Crim. App. 2003)). Although Gale raised the complaint in his motion for new trial,

“an appellant may raise a sentencing issue in a motion for new trial for the first time only if the

appellant did not have the opportunity to object in the punishment hearing.” Burt v. State, 396

S.W.3d 574, 577 n.4 (Tex. Crim. App. 2013) (quoting Hardeman v. State, 1 S.W.3d 689, 690 (Tex.

Crim. App. 1999)); see also McClintick, 508 S.W.2d at 618 (concluding appellant failed to

preserve complaint he was denied common law right to allocution because “he did not raise this

contention before the trial court prior to the imposition of sentence”). Prior to sentencing, Gale

had the opportunity to object that the trial court had denied him any right to allocution. Because

Gale did not do so, he failed to preserve his complaints for our review. We resolve Gale’s second

and third issues against him.

                                          Grossly Disproportionate Punishment

           In his fourth issue, Gale complains the trial court erred by imposing grossly

disproportionate sentences that violate the Eight Amendment’s prohibition against cruel and

unusual punishment. While conceding that the offenses he committed “were undoubtedly of a



      9
        See also Cox v. State, No. 05-17-00522-CR, 2018 WL 1149568, at *1 (Tex. App.—Dallas Mar. 5, 2018, no pet.) (mem. op., not designated
for publication) (“It is well-settled that to complain on appeal of the denial of a right to allocution, whether statutory or one claimed under the
common law, a defendant must timely object.”).

                                                                     –13–
serious nature,” Gale argues the sentences were grossly disproportionate because he was

“contending with some kind of serious and substantive mental issues” and the “most serious

offense,” the attempted aggravated kidnapping, occurred before the indecency offenses. 10

            The concept of proportionality is embodied in the Eighth Amendment’s proscription

against cruel and unusual punishment. U.S. CONST. amend. VIII; State v. Simpson, 488 S.W.3d

318, 322 (Tex. Crim. App. 2016).11 However, this is a “narrow principle” that does not require

strict proportionality between the crime and the sentence. Simpson, 488 S.W.3d at 322 (citing

Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J. concurring)). Instead, it forbids

only those extreme sentences that are so “grossly disproportionate” to the crime as to amount to

cruel and unusual punishment. Id. (citing Ewing v. California, 538 U.S. 11, 23 (2003) (plurality

op.)). A sentence is grossly disproportionate to the crime “only in the exceedingly rare or extreme

case.” Id. at 322–23.12 Generally, punishment assessed within the statutory limits is not excessive,

cruel, or unusual. Id. at 323.

            To determine whether a sentence is grossly disproportionate to a particular defendant’s

crime, we first consider the severity of the sentence in light of the harm caused or threatened to

the victim or victims, the culpability of the offender, and the offender’s prior adjudicated and

unadjudicated offenses. Id. In the rare case in which this threshold comparison leads to an

inference of gross disproportionality, we then compare the defendant’s sentence with the sentences

of other offenders in Texas and with the sentences imposed for the same crime in other




       10
          Gale preserved his complaint by filing, and presenting to the trial court, a motion for new trial as to punishment on the ground that his
sentences constituted a grossly disproportionate punishment. Williamson v. State, 175 S.W.3d 522, 523–24 (Tex. App.—Texarkana 2005, no pet.)
(concluding motion for new trial is appropriate way to preserve disproportionality claim for appellate review); see also TEX. R. APP. P. 21.6
(requiring motion for new trial to be presented to trial court within ten days of filing). The trial court did not hold a hearing on the motion for new
trial, and it was deemed overruled by operation of law. See TEX. R. APP. P. 21.8(c).
     11
          The Eighth Amendment is applicable to the States by virtue of the Fourteenth Amendment. Harmelin v. Michigan, 501 U.S. 957, 962
(1991).
     12
        See also Appleby v. State, No. 05-17-00474-CR, 2017 WL 5897455, at *1 (Tex. App.—Dallas Nov. 30, 2017, no pet.) (mem. op., not
designated for publication).

                                                                       –14–
jurisdictions. Id. “If this comparative analysis validates an initial judgment that the sentence is

grossly disproportionate, the sentence is cruel and unusual.” Id.

       On the indecency offenses, the evidence showed Gale drove to areas by schools at times

when he knew students would be walking to or from school and waited for girls who were walking

alone or with one other person. Gale then got out of his car, naked from the waist down, and

approached the girls while masturbating. All of the girls started screaming and crying when they

saw Gale, and several of the victims testified as to how Gale’s conduct had impacted their lives.

There was also evidence that Gale had been charged with other misdemeanor offenses based on

similar conduct in which his victims were adult women.

       As to the attempted aggravated kidnapping offense, Gale drove to a road by a high school

and saw M.W. walking alone. Gale parked his car, walked by M.W., turned, and grabbed her from

behind around the shoulders. M.W. testified she felt Gale trying to drag her. She immediately fell

to the ground and started screaming. A.P., who Gale had not noticed, began running toward Gale.

Gale then released M.W. and fled in his car. M.W.’s mother testified about M.W. needing

counseling after the incident, M.W.’s teachers driving her to and from school for the next two

years, and the impact of the incident on M.W.’s family.

       Having reviewed the record and considering the harm caused to Gale’s victims, Gale’s

culpability, and his other misconduct, we cannot conclude this is one of those “rare” cases that

leads to the inference that Gale’s sentences were grossly disproportionate to the offenses. Further,

Gale was convicted of five indecency with a child by exposure offenses, which are third-degree

felonies, see TEX. PENAL CODE ANN. § 21.11(d), and one attempted aggravated kidnapping, which

is a second degree felony, see id. §§ 15.01, 20.04(c). The sentence imposed for each offense fell

within the statutory range of punishment for that offense. Id. at §§ 12.33, 12.34 (West 2011). We

resolve Gale’s fourth issue against him.

                                               –15–
       We affirm the trial court’s judgments.



                                                  /Robert M. Fillmore/
                                                  ROBERT M. FILLMORE
                                                  JUSTICE


Do Not Publish
TEX. R. APP. P. 47

170592F.U05




                                                –16–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 TYLER ANTONIO GALE, Appellant                         On Appeal from the 195th Judicial District
                                                       Court, Dallas County, Texas,
 No. 05-17-00592-CR         V.                         Trial Court Cause No. F15-76789-N.
                                                       Opinion delivered by Justice Fillmore,
 THE STATE OF TEXAS, Appellee                          Justices Francis and Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of July, 2018.




                                                –17–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 TYLER ANTONIO GALE, Appellant                         On Appeal from the 195th Judicial District
                                                       Court, Dallas County, Texas,
 No. 05-17-00595-CR         V.                         Trial Court Cause No. F15-76792-N.
                                                       Opinion delivered by Justice Fillmore,
 THE STATE OF TEXAS, Appellee                          Justices Francis and Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of July, 2018.




                                                –18–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 TYLER ANTONIO GALE, Appellant                         On Appeal from the 195th Judicial District
                                                       Court, Dallas County, Texas,
 No. 05-17-00596-CR         V.                         Trial Court Cause No. F15-76793-N.
                                                       Opinion delivered by Justice Fillmore,
 THE STATE OF TEXAS, Appellee                          Justices Francis and Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of July, 2018.




                                                –19–
