David Gerald Mouser v. the State of Texas

NO. 12-23-00067-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID GERALD MOUSER, § APPEAL FROM THE 369TH
APPELLANT

V. § JUDICAIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
David Gerald Mouser appeals his conviction for attempted tampering with evidence. In a
single issue, Appellant argues that his sentence constitutes cruel and unusual punishment. We
affirm.

BACKGROUND
Appellant was charged by indictment with tampering with or fabricating evidence.
Appellant pleaded “not guilty,” and the matter proceeded to a jury trial. The jury ultimately
found Appellant “not guilty” of tampering with evidence but found him “guilty” of the lesser
included offense of attempted tampering with evidence. Prior to trial, the State filed a notice of
enhancement alleging prior felony convictions. Appellant pleaded “true” to the enhancement
paragraphs, and the jury sentenced Appellant to twenty years imprisonment. This appeal
followed.

CRUEL AND UNUSUAL PUNISHMENT
In his sole issue, Appellant argues that the sentence of twenty years imprisonment is
grossly disproportionate to the crime committed and amounts to cruel and unusual punishment
under the United States Constitution and the Texas Constitution.
Before a complaint may be presented for appellate review, the record must show that
Appellant raised the complaint to the trial court by a timely request, objection, or motion. TEX.
R. APP. P. 33.1(a)(1); see Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.
ref'd). A complaint that a sentence is grossly disproportionate and constitutes cruel and unusual
punishment may be preserved by objecting at the punishment hearing, or when the sentence is
pronounced. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); Kim, 283 S.W.3d at
475. An appellant may raise a sentencing issue for the first time in a motion for new trial only if
he did not have an opportunity to object during the punishment hearing. Burt, 396 S.W.3d at
577 n.4. In this case, Appellant did not object at the punishment hearing when his sentence was
pronounced. Because Appellant had the opportunity to object to his sentence at the punishment
hearing and failed to do so, we conclude that he failed to preserve this issue for our review. See
TEX. R. APP. P. 33.1(a)(1); Burt, 396 S.W.3d at 577-78.
Even had Appellant preserved his issue, we could not grant him relief because his
sentence does not constitute cruel and unusual punishment. The United States Constitution
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). Similarly, the Texas Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual
punishment inflicted.” TEX. CONST. art. 1, § 13. The difference between the Eighth
Amendment’s “cruel and unusual” phrasing and the Texas Constitution’s “cruel or unusual”
phrasing is insignificant. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).
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 which falls 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 attempted tampering with evidence, a state jail felony, and pleaded “true” to
two enhancement allegations, increasing the punishment range to that of a second degree felony.
The sentence of twenty years imprisonment imposed is within the applicable statutory enhanced

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punishment range due to Appellant’s two prior sequential felony convictions. See TEX. PENAL
CODE ANN. §§ 12.33 (West 2019), 12.425(b) (West 2019); 15.01(d) (West 2019); 37.09(c) (West
Supp. 2022) (punishable by a term of not more than twenty years or less than two years).
Therefore, Appellant’s 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.
Nonetheless, Appellant urges this Court to perform the three-part test originally set forth
in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, 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. Solem,
463 U.S. at 292, 103 S. Ct. at 3011. Texas courts and the Fifth Circuit Court of Appeals have
modified the application of the Solem test in light of the United States 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 remaining 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.).
We are guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L.
Ed. 2d 382 (1980), in making the threshold determination of whether Appellant’s sentence is
grossly disproportionate to his crime. In Rummel, the Supreme Court addressed the
proportionality claim of an appellant who received a 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. In Rummel, the appellant received a life
sentence because he 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 considering the purpose of the habitual offender
statute, the Supreme 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 this case, Appellant’s offense—attempted tampering of evidence with the punishment
range enhanced because Appellant had been convicted of two previous felonies, sexual assault

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and failure to register as a sex offender—is no less serious than the combination of offenses
committed by the appellant in Rummel, but Appellant’s twenty-year sentence is significantly
less than the life sentence upheld in Rummel. Thus, it is reasonable to conclude that if the
sentence in Rummel is not constitutionally disproportionate, neither is the sentence imposed
upon Appellant. Because we do not conclude that Appellant’s sentence is disproportionate to his
crime, we need not apply the remaining elements of the Solem test. See McGruder, 954 F.2d at
316; Jackson, 989 S.W.2d at 845-46. Accordingly, we overrule Appellant’s sole issue.

DISPOSITION
Having overruled Appellant’s single issue, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered August 31, 2023.
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

AUGUST 31, 2023

NO. 12-23-00067-CR

DAVID GERALD MOUSER,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 369th District Court
of Anderson County, Texas (Tr.Ct.No. 369CR-22-35567)

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, for which execution may issue, and that this
decision be certified to the court below for observance.

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