Tyron Dwuan Mark v. the State of Texas

NO. 12-23-00057-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TYRON DWUAN MARK, § APPEAL FROM THE 349TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant, Tyron Dwuan Mark, appeals his sentence for murder. In one issue, he alleges
that the sentence was grossly disproportionate to the crime committed. We affirm.

BACKGROUND

On April 19, 2022, Appellant was indicted for the offense of murder, alleged to have
occurred on or about February 1, 2019. Appellant pleaded “not guilty,” and the case proceeded to
a jury trial. After hearing the case, the jury found Appellant “guilty.”
Appellant elected to have the judge determine punishment. During the punishment
phase, the State alleged as an enhancement that in 1997, Appellant was finally convicted of the
felony offenses of aggravated sexual assault and aggravated kidnapping. Appellant pleaded
“true” to the enhancement. The judge found the enhancement paragraph “true” and assessed
punishment of life imprisonment. This appeal followed.

CRUEL AND UNUSUAL PUNISHMENT

In his first issue, Appellant argues that the sentence of life imprisonment is grossly
disproportionate to the crime committed and amounts to cruel and unusual punishment under the
United States Constitution and the Texas Constitution. Appellant contends that his sentence is
grossly disproportionate to his conduct in committing the offense and that the trial court should
have imposed a shorter sentence.
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 when the sentence was imposed. Burt, 396 S.W.3d at
577 n.4. In this case, the record does not show that Appellant objected when the sentence was
imposed at trial, and he does not assert that he lacked an opportunity to raise such an objection.
Therefore, it appears that Appellant did not properly preserve error on this issue. However,
assuming arguendo that Appellant did preserve this complaint for appellate review, we cannot
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

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was convicted of murder, a first-degree felony with a punishment range from five to ninety-nine
years of imprisonment, or life imprisonment. TEX. PENAL CODE ANN. §§ 19.02(c), 12.32 (West
2023). With the enhancement regarding prior felony convictions to which Appellant pleaded
“true,” the applicable punishment range was a minimum of fifteen years’ imprisonment and a
maximum of ninety-nine years’ imprisonment, or life imprisonment. Id. § 12.42(c)(1) (West
2023). Thus, the sentence of life imprisonment 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 urges this Court to consider the factors 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. Id., 463
U.S. at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas
courts and the Fifth Circuit Court of Appeals in light of 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 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 in making the threshold
determination of whether Appellant’s sentence is grossly disproportionate to his crime. 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 had 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 that case, 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 265–66, 100 S. Ct. at 1134–35. After recognizing the legislative
prerogative to classify offenses as felonies and, further, considering the purpose of the habitual

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offender statute, the court determined that the appellant’s mandatory life sentence did not
constitute cruel and unusual punishment. Id., 445 U.S. at 284–85, 100 S. Ct. at 1144–45.
In this case, the offense Appellant committed— murder—is far more serious than the
combination of offenses committed by the appellant in Rummel, while Appellant’s sentence is
equivalent to the life sentence upheld by the Supreme Court in Rummel. Thus, it is reasonable
to conclude that if the sentence in Rummel is not unconstitutionally disproportionate, neither is
Appellant’s sentence in this case. Because we do not find that the threshold test is satisfied, we
need not apply the remaining elements of the Solem test. 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 October 6, 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

OCTOBER 6, 2023

NO. 12-23-00057-CR

TYRON DWUAN MARK,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 349th District Court
of Houston County, Texas (Tr.Ct.No. 19CR-080)

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.