In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-19-00331-CR
THOMAS CAUDILL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2019-417,382, Honorable John J. “Trey” McClendon III, Presiding
July 14, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Appellant, Thomas Caudill, pled guilty in open court to the offense of felon in
possession of a firearm1 and was assessed an enhanced sentence of ninety-nine years’
1 A person may be convicted of unlawful possession of a firearm if a person who has been convicted
of a felony “possesses a firearm after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or release from . . . parole, or mandatory supervision which date is later.” TEX. PENAL CODE ANN. § 46.04(a), (e) (West Supp. 2020) (a third-degree felony). confinement.2 In a single issue, Appellant asserts the trial court’s imposition of the
sentence constitutes cruel and unusual punishment. We affirm.
Background
Appellant pled guilty in open court to the offense of felon in possession of a firearm.
He also pled “true” to two prior felonies of which he was finally convicted—assault of a
public servant and burglary of a habitation.3 The two enhancements increased his
punishment range from that of a third-degree felony, a minimum of two years to a
maximum of ten years’ confinement, to that of a first-degree felony, a minimum of twenty-
five years and a maximum of ninety-nine years’ confinement.4 In September 2019, a four-
day punishment trial was held.
The State’s evidence at the punishment trial established Appellant was convicted
of two counts of burglary of a habitation with intent to commit theft in August 2006. He
was sentenced to fifteen years’ confinement with the sentences to run concurrently until
August 1, 2021. Prior to completing his sentence, he was placed on parole in 2017 after
serving approximately eleven years.
2 See TEX. PENAL CODE ANN. § 12.42(d) (2019).
3 Although the indictment also alleged a prior conviction for a third felony for enhancement purposes, the State abandoned the third enhancement paragraph.
4 Compare TEX. PENAL CODE ANN. § 12.34 & 12.42(d) (West 2019). 2 In July 2017, Appellant was an active member of the Aryan Circle5 and became a
wanted fugitive for violating the terms of his parole.6 The Texas Department of Public
Safety Criminal Investigations Unit surveilled his residence. When officers observed
Appellant’s accomplice arrive at the residence, they moved in to effect an arrest warrant
and were given permission to search the backyard. There, they located several stolen
items: motorcycles, trailers, and a scooter. Surveillance footage from cameras mounted
on the accomplice’s trailer showed Appellant placing the vehicles and trailers in the
backyard.7 The videos also established Appellant was driving a white, Jeep Liberty.
On August 4, 2017, officers spotted the Jeep. When officers moved in to effect a
felony-arrest warrant, Appellant engaged a high-speed chase with officers in pursuit.
While driving through a residential neighborhood, Appellant ignored stop signs and fired
three rounds from a handgun at the pursuing officers. The gunfire nearly struck a
pedestrian. Not far from an elementary school, Appellant lost control of his Jeep and
crashed. He continued fleeing on foot, leaving April Foskett and her two daughters in the
Jeep. Officers described Foskett as “hysterical.”
Officers located Appellant with the assistance of a canine unit. When Appellant
was placed in custody, he admitted he had used “sixty units of dope.” Officers recovered
a .45 caliber semiautomatic handgun from his shorts containing two unspent rounds, a
5 The Aryan Circle is a paramilitary organization whose members outside of prison promote violence and distribute narcotics and firearms.
6 Within months of being paroled, the State filed a blue warrant against Appellant seeking to revoke his parole.
7 In a subsequent interview with a DPS Special Agent, Appellant admitted to stealing one of the trailers and described how the theft was accomplished. 3 knife, and a bag containing drug paraphernalia on his person. In the Jeep, officers found
a twelve-gauge shotgun loaded with four shells lying between the driver’s seat and
console.8 They also found a pair of bolt cutters,9 multiple knives, and binoculars. In
addition to the shotgun and tools, officers also found a bag of plastic button bags
commonly used to contain narcotics, two syringes containing a clear liquid, and rolling
papers.
At trial, a fingerprint expert from the Lubbock District Attorney’s Office testified
Appellant had been convicted of the following felony offenses: (1) assault against a public
servant in 2002; (2) burglary of a habitation in 2004, (3) burglary of a habitation with intent
to commit theft in 2006, and (4) a second offense of burglary of a habitation with intent to
commit theft in 2006. At the time he committed the current offense of felon in possession
of a firearm, Appellant was on parole with an outstanding warrant to revoke his parole.
At the conclusion of the State’s case, the jury found Appellant guilty of the offense
of felon in possession of a firearm and sentenced him to ninety-nine years’ confinement.
When the trial judge announced the sentence, Appellant did not object. On appeal,
Appellant asserts his sentence is cruel and usual in violation of federal and state
constitutions because (1) he accepted responsibility and pled guilty to the offense and
enhancements, (2) there is a great disparity between the maximum sentence for felon in
possession of a firearm and the enhanced sentence handed down by the jury, and (3) the
8 Appellant admitted to officers that the shotgun belonged to him.
9 One officer opined that the bolt cutters were the type of tool that could gain you entry to someone’s property to steal anything not bolted down. 4 sentence is disproportionate as compared with similar sentences for the same crime in
this jurisdiction.
Analysis
To preserve error, a defendant must make a timely request, objection, or motion
to the trial court. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719,
723 (Tex. App.—Dallas 2003, no pet.). Constitutional rights, including the right to be free
from cruel and unusual punishment, may be waived by a failure to raise those issues in
the trial court. Russell v. State, 341 S.W.3d 526, 527 (Tex. App.—Fort Worth 2011, no
pet.). See Castaneda, 135 S.W.3d at 723. Here, when the trial court pronounced
Appellant’s sentence, he did not object on any grounds or complain that the sentence
violated his constitutional rights. Nor did he file a motion for new trial. Thus, because
Appellant failed to object at the time his sentence was pronounced and did not raise the
issue of excessive sentencing in a post-conviction motion for a new trial, Appellant has
not preserved the issue for review.
Nevertheless, even if Appellant had preserved this issue for review, this Court
disagrees that the sentence assessed was excessive or constitutionally disproportionate
to the offense for which Appellant was convicted.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-19-00331-CR
THOMAS CAUDILL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2019-417,382, Honorable John J. “Trey” McClendon III, Presiding
July 14, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Appellant, Thomas Caudill, pled guilty in open court to the offense of felon in
possession of a firearm1 and was assessed an enhanced sentence of ninety-nine years’
1 A person may be convicted of unlawful possession of a firearm if a person who has been convicted
of a felony “possesses a firearm after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or release from . . . parole, or mandatory supervision which date is later.” TEX. PENAL CODE ANN. § 46.04(a), (e) (West Supp. 2020) (a third-degree felony). confinement.2 In a single issue, Appellant asserts the trial court’s imposition of the
sentence constitutes cruel and unusual punishment. We affirm.
Background
Appellant pled guilty in open court to the offense of felon in possession of a firearm.
He also pled “true” to two prior felonies of which he was finally convicted—assault of a
public servant and burglary of a habitation.3 The two enhancements increased his
punishment range from that of a third-degree felony, a minimum of two years to a
maximum of ten years’ confinement, to that of a first-degree felony, a minimum of twenty-
five years and a maximum of ninety-nine years’ confinement.4 In September 2019, a four-
day punishment trial was held.
The State’s evidence at the punishment trial established Appellant was convicted
of two counts of burglary of a habitation with intent to commit theft in August 2006. He
was sentenced to fifteen years’ confinement with the sentences to run concurrently until
August 1, 2021. Prior to completing his sentence, he was placed on parole in 2017 after
serving approximately eleven years.
2 See TEX. PENAL CODE ANN. § 12.42(d) (2019).
3 Although the indictment also alleged a prior conviction for a third felony for enhancement purposes, the State abandoned the third enhancement paragraph.
4 Compare TEX. PENAL CODE ANN. § 12.34 & 12.42(d) (West 2019). 2 In July 2017, Appellant was an active member of the Aryan Circle5 and became a
wanted fugitive for violating the terms of his parole.6 The Texas Department of Public
Safety Criminal Investigations Unit surveilled his residence. When officers observed
Appellant’s accomplice arrive at the residence, they moved in to effect an arrest warrant
and were given permission to search the backyard. There, they located several stolen
items: motorcycles, trailers, and a scooter. Surveillance footage from cameras mounted
on the accomplice’s trailer showed Appellant placing the vehicles and trailers in the
backyard.7 The videos also established Appellant was driving a white, Jeep Liberty.
On August 4, 2017, officers spotted the Jeep. When officers moved in to effect a
felony-arrest warrant, Appellant engaged a high-speed chase with officers in pursuit.
While driving through a residential neighborhood, Appellant ignored stop signs and fired
three rounds from a handgun at the pursuing officers. The gunfire nearly struck a
pedestrian. Not far from an elementary school, Appellant lost control of his Jeep and
crashed. He continued fleeing on foot, leaving April Foskett and her two daughters in the
Jeep. Officers described Foskett as “hysterical.”
Officers located Appellant with the assistance of a canine unit. When Appellant
was placed in custody, he admitted he had used “sixty units of dope.” Officers recovered
a .45 caliber semiautomatic handgun from his shorts containing two unspent rounds, a
5 The Aryan Circle is a paramilitary organization whose members outside of prison promote violence and distribute narcotics and firearms.
6 Within months of being paroled, the State filed a blue warrant against Appellant seeking to revoke his parole.
7 In a subsequent interview with a DPS Special Agent, Appellant admitted to stealing one of the trailers and described how the theft was accomplished. 3 knife, and a bag containing drug paraphernalia on his person. In the Jeep, officers found
a twelve-gauge shotgun loaded with four shells lying between the driver’s seat and
console.8 They also found a pair of bolt cutters,9 multiple knives, and binoculars. In
addition to the shotgun and tools, officers also found a bag of plastic button bags
commonly used to contain narcotics, two syringes containing a clear liquid, and rolling
papers.
At trial, a fingerprint expert from the Lubbock District Attorney’s Office testified
Appellant had been convicted of the following felony offenses: (1) assault against a public
servant in 2002; (2) burglary of a habitation in 2004, (3) burglary of a habitation with intent
to commit theft in 2006, and (4) a second offense of burglary of a habitation with intent to
commit theft in 2006. At the time he committed the current offense of felon in possession
of a firearm, Appellant was on parole with an outstanding warrant to revoke his parole.
At the conclusion of the State’s case, the jury found Appellant guilty of the offense
of felon in possession of a firearm and sentenced him to ninety-nine years’ confinement.
When the trial judge announced the sentence, Appellant did not object. On appeal,
Appellant asserts his sentence is cruel and usual in violation of federal and state
constitutions because (1) he accepted responsibility and pled guilty to the offense and
enhancements, (2) there is a great disparity between the maximum sentence for felon in
possession of a firearm and the enhanced sentence handed down by the jury, and (3) the
8 Appellant admitted to officers that the shotgun belonged to him.
9 One officer opined that the bolt cutters were the type of tool that could gain you entry to someone’s property to steal anything not bolted down. 4 sentence is disproportionate as compared with similar sentences for the same crime in
this jurisdiction.
Analysis
To preserve error, a defendant must make a timely request, objection, or motion
to the trial court. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719,
723 (Tex. App.—Dallas 2003, no pet.). Constitutional rights, including the right to be free
from cruel and unusual punishment, may be waived by a failure to raise those issues in
the trial court. Russell v. State, 341 S.W.3d 526, 527 (Tex. App.—Fort Worth 2011, no
pet.). See Castaneda, 135 S.W.3d at 723. Here, when the trial court pronounced
Appellant’s sentence, he did not object on any grounds or complain that the sentence
violated his constitutional rights. Nor did he file a motion for new trial. Thus, because
Appellant failed to object at the time his sentence was pronounced and did not raise the
issue of excessive sentencing in a post-conviction motion for a new trial, Appellant has
not preserved the issue for review.
Nevertheless, even if Appellant had preserved this issue for review, this Court
disagrees that the sentence assessed was excessive or constitutionally disproportionate
to the offense for which Appellant was convicted. The Eighth Amendment does not
require strict proportionality between the crime and the sentence; rather, it forbids
extreme sentences that are “grossly disproportionate” to the crime. Ewing v. California,
538 U.S. 11, 23 (2003). The precise contours of the “grossly disproportionate” standard
apply only in “exceedingly rare” and “extreme” cases. See Lockyer v. Andrade, 538 U.
S. 63, 72-73 (2003). When the conviction is for a non-capital felony, the Court of Criminal
5 Appeals has described “the sentencer’s discretion to impose any punishment within the
prescribed range to be essentially ‘unfettered.’” Ex parte Chavez, 213 S.W.3d 320, 323-
24 (Tex. Crim. App. 2006) (quoting Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim.
Ap. 1990)).
We have generally held that so long as the punishment assessed falls within the
punishment range prescribed by the legislature in a valid statute, the punishment is not
excessive. Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.—Amarillo 2008, pet.
ref’d). Here, it is undisputed that the sentence imposed by the trial court is within the
range of punishment authorized by the Legislature. That said, however, Texas courts
recognize that a prohibition against grossly disproportionate sentences survives under
the federal constitution apart from any considerations whether the punishment assessed
is within the statute’s range. Id.
Discussing the proportionality of criminal sentences under the Eighth Amendment;
see U.S. CONST. amend. VIII, the United States Supreme Court teaches that courts should
be guided by the following objective criteria: (1) the gravity 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 v.
Heim, 463 U.S. 277, 292 (1983). In addition, the Solem court indicated that the
legislatures should be accorded substantial deference, and that “a reviewing court rarely
will be required to engage in extended analysis to determine that a sentence is not
constitutionally disproportionate.” 463 U.S. at 290 n.16.
6 Following Solem, the Texas Court of Criminal Appeals has since determined that
an appellate court “must judge the severity of the sentence in light of the harm caused or
threatened to the victim, the culpability of the offender, and the offender’s prior
adjudicated and unadjudicated offenses.” State v. Simpson, 488 S.W.3d 318, 322-23
(Tex. Crim. App. 2016) (cleaned up). “In the rare case in which this comparison leads to
an inference of gross disproportionality, [the appellate court] then compares the sentence
with the sentences imposed for the same crime in other jurisdictions.” Id. “It is only when
this comparative analysis validates an initial judgment that the sentence is grossly
disproportionate that the sentence is deemed cruel and unusual.” Id.
The purpose of the offense of unlawful possession of a firearm by a felon is to
“prohibit all felons from possessing weapons at any time all places away from their
residence.” State v. Mason, 980 S.W.2d 635, 638 (Tex. Crim. App. 1998). See Waddy
v. State, 880 S.W.2d 458, 460 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d)
(“[a]nytime a person has possession of a firearm, the threat to public safety remains”).
Here, officers recovered a loaded shotgun between the driver’s seat and the console of
Appellant’s Jeep and following a foot pursuit through a residential neighborhood to
capture Appellant, recovered a .45 caliber handgun from Appellant’s shorts. Appellant
does not contest the jury’s findings that he possessed these firearms.
In addition, when officers attempted to affect a felony-arrest warrant, Appellant
fled, engaging in a high-speed chase while other passengers were in his vehicle. He
raced through a residential neighborhood, ignoring traffic signs and endangered the lives
of innocent residents. He also endangered lives by firing a .45 caliber handgun from his
7 Jeep at pursuing officers, nearly hitting a bystander. When officers searched the Jeep
after he crashed, they found methamphetamine, drug paraphernalia, and plastic baggies
typically used in the distribution of drugs.
When conducting an Eighth Amendment proportionality analysis, we may also
consider the sentence imposed in light of the accused’s prior offenses. Winchester, 246
S.W.3d at 390. Here, at the time of the offense, Appellant had prior convictions for the
following felonies: assault against a public servant in 2002, burglary of a habitation in
2004, and two counts burglary of a habitation with intent to commit theft in 2005. For his
offenses in 2005, his sentence of fifteen years’ confinement was imposed on August 1,
2006. After he was paroled, he returned to engaging in criminal activity.
Given these circumstances, we cannot say there is an inference of gross
proportionality between offense committed by Appellant and the sentence he received.
The United States Supreme Court has held that it did not constitute “cruel and unusual
punishment” to impose a life sentence under the Texas “recidivist statute,” now section
12.42(d) of the Texas Penal Code, upon a defendant who had been convicted of
fraudulently using a credit card to obtain $80 worth of goods or services, passing a forged
check in the amount of $28.36, and obtaining $120.75 by false pretenses. Rummel v.
Estelle, 445 U.S. 263, 265-66 (1980). The circumstances in Rummel pale in comparison
to the criminal activity supporting Appellant’s conviction and sentence. For the reasons
stated in this opinion, it is unnecessary to engage in a comparison between Appellant’s
sentence and sentences imposed for the same crime in this and other jurisdictions.
Appellant’s single issue is overruled.
8 Conclusion
The trial court’s judgment is affirmed.
Lawrence M. Doss Justice
Do not publish.
Quinn, C.J., concurring in the result.10
10 Chief Justice Quinn joins in the opinion to the extent the majority concludes that the issue was not preserved. The remainder is dicta, in his view. 9