NUMBER 13-23-00414-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NOAH LEE CLOUSE Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 36TH DISTRICT COURT OF ARANSAS COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Longoria
Appellant Noah Lee Clouse pleaded guilty to violating a protective order two times
within twelve months. 1 See TEX. PENAL CODE ANN. § 25.072(e). Appellant also entered a
1 The original indictment alleged that appellant had violated the terms of a protective order by
contacting his wife two or more times in a twelve-month period. The indictment specified fifty-three dates plea of true to three prior felony convictions: injury to a child, assault family violence two
times, and assault family violence enhanced. Appellant was sentenced by the trial court
to sixty years’ incarceration. On appeal, appellant argues that his sentence is
disproportionate to the seriousness of the offense. We affirm.
I. BACKGROUND
After appellant waived his right to a jury trial and entered his plea of guilty, the
State presented evidence to the trial court. Justice of the Peace Diana McGinnis testified
that she entered the emergency protective order against appellant with the protected
individual being Layna Clouse, appellant’s wife and the victim in appellant’s assault case.
Judge McGinnis stated that the emergency protective order specified that appellant was
not to communicate “in any manner with Layna Clouse or a member of the family or
household of [Layna] except through the party’s attorney.”
Criminal Investigator Kaelin Kemp of the Aransas County Sheriff’s Office testified
that he was assigned to appellant’s assault family violence with a previous conviction
case. As a result of the assault against Layna, an emergency protective order was put
into place. Investigator Kemp reviewed jail calls between appellant and Layna.
Recordings of eighteen calls to Layna from appellant’s account and two calls from another
inmate’s account were admitted into evidence without objection. In one of the calls,
appellant states that “[t]his is probably violating that order,” indicating he was aware that
he should not have been calling Layna. During the calls, appellant is heard telling Layna
to get rid of the protective order and to file an affidavit of non-prosecution to have the
charges against him dropped. Investigator Kemp explained that Layna had her phone
and times that appellant was alleged to have made contact. At the start of trial, the State announced that it was removing thirty-two of those dates and times and proceeding on the rest.
2 number blocked from the jail and changed her phone number but that appellant used
another inmate’s account to contact Layna. Investigator Kemp stated that appellant
contacted Layne approximately eighty-two times in violation of the protective order.
Investigator Kemp testified that appellant had previously been convicted of injury
to a child, assault on a family member, assault causing bodily injury on a family member,
assault family violence, assault on a public servant, and driving while intoxicated with a
child passenger. Investigator Kemp also stated that appellant pleaded guilty to assault
family violence for “intentionally, knowingly[,] or recklessly caus[ing] bodily injury to Layna
Clouse” by striking her with a belt.
Appellant testified that growing up, his mother was a drug addict who abandoned
him and his siblings with their grandmother. He stated that his grandmother was very
strict, and he was beaten daily as a child. At the age of nine he went into psychiatric care
for two years. His mother took possession of him after his treatment, but she was still
addicted to drugs, and he explained that he “grew up in drug houses.” At the age of
thirteen, he overdosed on ecstasy and methamphetamine and received rehabilitation
treatment where he was “diagnosed with Bipolar I” disorder. From there, he explained
that he moved to various locations on his own until age eighteen. He has held various
jobs throughout his life including, among others, construction, plumbing, service
processor, “reverend work,” and an Uber driver.
He and Layna married in 2016. He states that he was “strung out on drugs until
[he] was [thirty-two] years old,” when he committed the offenses of driving while
intoxicated with child passengers and assault on five public servants—four police officers
and a judge. He explained that Layna supported him through his struggles. According to
3 appellant, Layna admitted to having an affair with an inmate where she was working. He
said that caused them to argue a lot and have communication and relationship issues.
Eventually, he decided to start using drugs again and convinced Layna to take
methamphetamines with him. They both became addicted, “lost [their] kids” to the Texas
Department of Family and Protective Services, and they were both in and out of
rehabilitation treatment centers.
On cross-examination, appellant testified that the conviction for injury to a child
was from spanking his former girlfriend’s son. He also stated that one of his convictions
for assault of a family member was due to a fist fight with his brother and another was for
pushing a former girlfriend. He was also “attacked” by his father and he “fought back.”
When he got his driving while intoxicated with child passengers offense, the children were
three and two years old. While he pleaded guilty and was convicted for assaulting Layna
with a belt, he denied in his testimony that he ever hit her with a belt. As for the assault
that was the basis of the emergency protective order, he admitted that he told officers he
had “grabbed [Layna] by the shirt.”
At the close of evidence, after detailing his criminal history and behavioral issues,
the State sought fifty years’ imprisonment for appellant. Appellant asked the trial court to
“consider the lower end of the guidelines available.” After a recess, the trial court accepted
the guilty plea and the plea of true to the enhancements. The trial court sentenced
appellant to sixty years’ imprisonment. Appellant made no objection. This appeal
followed.
II. DISPROPORTIONATE SENTENCE
By his sole issue on appeal, appellant argues that the sentence is disproportionate
4 to the seriousness of the offense.
A. Standard of Review & Applicable Law
We review a court’s sentencing determination for an abuse of discretion. Jackson
v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Generally, if a sentence is
assessed within the legislatively determined range, it will not be found unconstitutional.
Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (noting that “the
sentencer’s discretion to impose any punishment within the prescribed range [is]
essentially ‘unfettered’”); Foster v. State, 525 S.W.3d 898, 912 (Tex. App.—Dallas 2017,
pet. ref’d). An allegation of excessive or disproportionate punishment is a legal claim
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NUMBER 13-23-00414-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NOAH LEE CLOUSE Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 36TH DISTRICT COURT OF ARANSAS COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Longoria
Appellant Noah Lee Clouse pleaded guilty to violating a protective order two times
within twelve months. 1 See TEX. PENAL CODE ANN. § 25.072(e). Appellant also entered a
1 The original indictment alleged that appellant had violated the terms of a protective order by
contacting his wife two or more times in a twelve-month period. The indictment specified fifty-three dates plea of true to three prior felony convictions: injury to a child, assault family violence two
times, and assault family violence enhanced. Appellant was sentenced by the trial court
to sixty years’ incarceration. On appeal, appellant argues that his sentence is
disproportionate to the seriousness of the offense. We affirm.
I. BACKGROUND
After appellant waived his right to a jury trial and entered his plea of guilty, the
State presented evidence to the trial court. Justice of the Peace Diana McGinnis testified
that she entered the emergency protective order against appellant with the protected
individual being Layna Clouse, appellant’s wife and the victim in appellant’s assault case.
Judge McGinnis stated that the emergency protective order specified that appellant was
not to communicate “in any manner with Layna Clouse or a member of the family or
household of [Layna] except through the party’s attorney.”
Criminal Investigator Kaelin Kemp of the Aransas County Sheriff’s Office testified
that he was assigned to appellant’s assault family violence with a previous conviction
case. As a result of the assault against Layna, an emergency protective order was put
into place. Investigator Kemp reviewed jail calls between appellant and Layna.
Recordings of eighteen calls to Layna from appellant’s account and two calls from another
inmate’s account were admitted into evidence without objection. In one of the calls,
appellant states that “[t]his is probably violating that order,” indicating he was aware that
he should not have been calling Layna. During the calls, appellant is heard telling Layna
to get rid of the protective order and to file an affidavit of non-prosecution to have the
charges against him dropped. Investigator Kemp explained that Layna had her phone
and times that appellant was alleged to have made contact. At the start of trial, the State announced that it was removing thirty-two of those dates and times and proceeding on the rest.
2 number blocked from the jail and changed her phone number but that appellant used
another inmate’s account to contact Layna. Investigator Kemp stated that appellant
contacted Layne approximately eighty-two times in violation of the protective order.
Investigator Kemp testified that appellant had previously been convicted of injury
to a child, assault on a family member, assault causing bodily injury on a family member,
assault family violence, assault on a public servant, and driving while intoxicated with a
child passenger. Investigator Kemp also stated that appellant pleaded guilty to assault
family violence for “intentionally, knowingly[,] or recklessly caus[ing] bodily injury to Layna
Clouse” by striking her with a belt.
Appellant testified that growing up, his mother was a drug addict who abandoned
him and his siblings with their grandmother. He stated that his grandmother was very
strict, and he was beaten daily as a child. At the age of nine he went into psychiatric care
for two years. His mother took possession of him after his treatment, but she was still
addicted to drugs, and he explained that he “grew up in drug houses.” At the age of
thirteen, he overdosed on ecstasy and methamphetamine and received rehabilitation
treatment where he was “diagnosed with Bipolar I” disorder. From there, he explained
that he moved to various locations on his own until age eighteen. He has held various
jobs throughout his life including, among others, construction, plumbing, service
processor, “reverend work,” and an Uber driver.
He and Layna married in 2016. He states that he was “strung out on drugs until
[he] was [thirty-two] years old,” when he committed the offenses of driving while
intoxicated with child passengers and assault on five public servants—four police officers
and a judge. He explained that Layna supported him through his struggles. According to
3 appellant, Layna admitted to having an affair with an inmate where she was working. He
said that caused them to argue a lot and have communication and relationship issues.
Eventually, he decided to start using drugs again and convinced Layna to take
methamphetamines with him. They both became addicted, “lost [their] kids” to the Texas
Department of Family and Protective Services, and they were both in and out of
rehabilitation treatment centers.
On cross-examination, appellant testified that the conviction for injury to a child
was from spanking his former girlfriend’s son. He also stated that one of his convictions
for assault of a family member was due to a fist fight with his brother and another was for
pushing a former girlfriend. He was also “attacked” by his father and he “fought back.”
When he got his driving while intoxicated with child passengers offense, the children were
three and two years old. While he pleaded guilty and was convicted for assaulting Layna
with a belt, he denied in his testimony that he ever hit her with a belt. As for the assault
that was the basis of the emergency protective order, he admitted that he told officers he
had “grabbed [Layna] by the shirt.”
At the close of evidence, after detailing his criminal history and behavioral issues,
the State sought fifty years’ imprisonment for appellant. Appellant asked the trial court to
“consider the lower end of the guidelines available.” After a recess, the trial court accepted
the guilty plea and the plea of true to the enhancements. The trial court sentenced
appellant to sixty years’ imprisonment. Appellant made no objection. This appeal
followed.
II. DISPROPORTIONATE SENTENCE
By his sole issue on appeal, appellant argues that the sentence is disproportionate
4 to the seriousness of the offense.
A. Standard of Review & Applicable Law
We review a court’s sentencing determination for an abuse of discretion. Jackson
v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Generally, if a sentence is
assessed within the legislatively determined range, it will not be found unconstitutional.
Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (noting that “the
sentencer’s discretion to impose any punishment within the prescribed range [is]
essentially ‘unfettered’”); Foster v. State, 525 S.W.3d 898, 912 (Tex. App.—Dallas 2017,
pet. ref’d). An allegation of excessive or disproportionate punishment is a legal claim
embodied in state and federal constitutional bans on cruel or unusual punishment and
based on a “narrow principle that does not require strict proportionality between the crime
and the sentence.” State v. Simpson, 488 S.W.3d 318, 322–24 (Tex. Crim. App. 2016)
(citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)); see
U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”); TEX. CONST. art. I, § 13
(“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual
punishment inflicted.”). A successful challenge to proportionality is exceedingly rare and
requires a finding of “gross disproportionality.” Simpson, 488 S.W.3d at 322–23 (citing
Lockyer v. Andrade, 538 U.S. 63, 73 (2003)); Trevino v. State, 174 S.W.3d 925, 928 (Tex.
App.—Corpus Christi–Edinburg 2005, pet. ref’d).
To preserve for appellate review a complaint that a sentence is grossly
disproportionate or cruel or unusual, a defendant must present to the trial court a “timely
request, objection, or motion” stating the specific grounds for the ruling desired. TEX. R.
5 APP. P. 33.1(a); see Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (“It is
well settled that almost every right, constitutional and statutory, may be waived by the
failure to object.”); Toledo v. State, 519 S.W.3d 273, 284 (Tex. App.—Houston [1st Dist.]
2017, pet. ref’d) (concluding defendant had failed to preserve disproportionate-
sentencing complaint); see also Adams v. State, No. 13-09-00334-CR, 2010 WL
2783745, at *8 (Tex. App.—Corpus Christi–Edinburg July 15, 2010, pet. ref’d) (mem. op.,
not designated for publication) (concluding the same where appellant was sentenced to
forty years’ imprisonment for evading arrest, enhanced by his felony habitual offender
status). “To state the obvious, an unpreserved grossly disproportionate sentencing
argument cannot conceivably persuade this Court and is thus frivolous.” Trevino v. State,
676 S.W.3d 726, 732–33 (Tex. App.—Corpus Christi–Edinburg 2023, no pet.).
Appellant did not object to the sentence when pronounced nor did he argue that
the sentence imposed was disproportionate to the offense charged or in violation of his
constitutional rights prior to this appeal. Accordingly, appellant failed to preserve his
complaint for review. See TEX. R. APP. P. 33.1(a); Trevino, 174 S.W.3d at 927–28. We
overrule appellant’s sole issue.
III. CONCLUSION
The judgment of the trial court is affirmed.
NORA L. LONGORIA Justice
Do not publish. TEX. R. APP. P. 47.2 (b).
Delivered and filed on the 8th day of August, 2024.