                                   NO. 12-18-00234-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 ALOYSIUS WAYNE MURRAY, JR.,                       §       APPEAL FROM THE 87TH
 APPELLANT

 V.                                                §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §       ANDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Aloysius Wayne Murray, Jr. appeals his convictions for tampering with physical evidence
and evading arrest or detention with a previous conviction. In one issue, Appellant argues that his
sentences are grossly disproportionate to his offenses. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with tampering with physical evidence and evading
arrest or detention with a previous conviction. He pleaded “not guilty” to the offenses, and the
matter proceeded to a jury trial. The jury found Appellant “guilty” as charged. Appellant
subsequently pleaded “true” to two enhancement paragraphs, and the jury assessed his punishment
at imprisonment for forty-five years in the tampering case and imprisonment for fifteen years and
a $1,000.00 fine in the evading case. This appeal followed.


                               CRUEL AND UNUSUAL PUNISHMENT
       In his sole issue, Appellant argues that the trial court violated the constitutional prohibition
against cruel and unusual punishment by sentencing him to imprisonment for forty-five years and
fifteen years, respectively. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. Specifically,
he contends that his sentences are grossly disproportionate to his offenses, considering the facts
and circumstances of the offenses and compared with sentences imposed on other defendants for
the same offenses. See Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637
(1983).
          The State first argues that Appellant failed to preserve his error for our review by a timely
objection or motion in the trial court. When a defendant fails to object to the disproportionality of
his sentence in the trial court, he forfeits such error on appeal. See TEX. R. APP. P. 33.1; Solis v.
State, 945 S.W.2d 300, 301-02 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); see also
Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (Texas cruel or unusual
punishment error forfeited where defendant failed to object); Curry v. State, 910 S.W.2d 490, 497
(Tex. Crim. App. 1995) (Eighth Amendment cruel and unusual punishment error not preserved
where defendant failed to object). Here, Appellant did not object in the trial court to the
disproportionality of his sentence. Therefore, any error in this regard is forfeited. See id.
          The State argues in the alternative that Appellant’s sentences are not grossly
disproportionate to his offenses. We agree and conclude that even if Appellant preserved error,
his sentence does not constitute cruel and unusual punishment. The Eighth Amendment to the
Constitution of the United States 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) (citing Robinson
v. California, 370 U.S. 660, 666-67, 82 S. Ct. 1417, 1420-21, 8 L. Ed. 2d 758 (1962)). 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 assessed 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 tampering with physical evidence, enhanced, the
punishment range for which is twenty-five to ninety-nine years or life in prison. See TEX. PENAL
CODE ANN. §§ 12.42(d) (West Supp. 2018), 37.09(a)(1), (c) (West 2016). Thus, the forty-five-
year sentence imposed by the trial court falls within the range set forth by the legislature.




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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.
        Additionally, Appellant was convicted of evading arrest or detention with a previous
conviction, enhanced, the punishment range for which is two to twenty years in prison. See TEX.
PENAL CODE ANN. §§ 12.33(a) (West 2011), 12.425(b) (West Supp. 2018), 38.04(a), (b)(1) (West
2016). Thus, the fifteen-year sentence imposed by the trial court 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 contends that his sentences are grossly disproportionate to his
offenses because of his psychological history and because other offenders have received much
shorter sentences for much more serious tampering and evading offenses.1 We disagree.
        In reviewing this case, we first consider whether Appellant’s sentences are “grossly
disproportionate” to his offenses. Under the three-part test originally set forth in Solem, 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. 463 U.S. at 292,
103 S. Ct. at 3011. The application of the Solem test was modified by Texas courts and the Fifth
Circuit Court of Appeals after 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 second and third 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.). This threshold determination is made by comparing the gravity of the
offense to the severity of the sentence. See McGruder, 954 F.2d at 316. Thus, Appellant’s
psychological history and the sentences received by others are not factors that we consider in
determining whether his sentences are grossly disproportionate. See id.
        In determining whether Appellant’s sentences are grossly disproportionate, we are guided
by the holding in Rummel v. Estell. 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 received a

        1
           Although we decide this case without considering the sentences of other offenders, we note that Appellant
offers no support for his contention that other offenders have received much shorter sentences for much more serious
tampering and evading offenses.


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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. A life sentence
was imposed because the appellant also 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 266, 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 285, 100 S. Ct. at 1145.
         In the case at hand, Appellant’s offenses of tampering with physical evidence and evading
arrest or detention with a previous conviction, along with his two enhancement offenses of
possession of one to four grams of a penalty group one controlled substance, are at least as serious
as the combination of offenses committed by the appellant in Rummel, yet Appellant’s forty-five
and fifteen year sentences are less severe than that upheld by the Supreme Court in Rummel. Thus,
it is reasonable to conclude that if the sentence in Rummel was not unconstitutionally
disproportionate, then neither are the sentences assessed against Appellant here. Therefore, the
threshold test has not been satisfied, and we need not apply the remaining elements of the Solem
test. See McGruder, 954 F.2d at 316; see also Jackson, 989 S.W.2d at 845-46. Accordingly, we
overrule Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                  GREG NEELEY
                                                                     Justice

Opinion delivered January 23, 2019.
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

                                          JANUARY 23, 2019


                                         NO. 12-18-00234-CR


                              ALOYSIUS WAYNE MURRAY, JR.,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                 Appeal from the 87th District Court
                     of Anderson County, Texas (Tr.Ct.No. 87CR-17-33398)

                       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.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
