Leonard Walton Fusselman v. the State of Texas

Affirmed and Memorandum Opinion filed August 8, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00281-CR
NO. 14-23-00282-CR
NO. 14-23-00286-CR

LEONARD WALTON FUSSELMAN, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause Nos. 17-DCR-080375, 17-DCR-080376A, and 17-DCR-
080374A

MEMORANDUM OPINION

Appellant pleaded guilty, without an agreed recommendation for
punishment, to three counts of possession with intent to promote child
pornography. The trial court assessed punishment at confinement for six years on
each count to be served consecutively. In a single issue on appeal, appellant
contends that his sentences are grossly disproportionate to the crime committed in
violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
See U.S. Const. amend. VIII. The State contends that appellant failed to preserve
error. Appellant does not respond to the State’s argument.

Except for some narrow categorical challenges, “Eighth Amendment
challenges are forfeited if not raised in the trial court.” Davis v. State, 586 S.W.3d
586, 590 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d); see Curry v. State,
910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding that the appellant failed to
preserve error because he “never objected at trial concerning cruel and unusual
punishment”); see also Compton v. State, 666 S.W.3d 685, 728–29 (Tex. Crim.
App. 2023) (noting that one of the court’s prior decisions—holding a juvenile did
not forfeit by inaction a claim that a mandatory life-without-parole sentence
violated the Eighth Amendment—did “not broadly apply to all Eighth Amendment
‘individualized sentencing’ claims”). “A sentencing issue may be preserved by
objecting at the punishment hearing, or when the sentence is pronounced,” and
sometimes by a motion for new trial. Burt v. State, 396 S.W.3d 574, 577 (Tex.
Crim. App. 2013).

The record does not show that appellant raised his Eighth Amendment
complaint in the trial court. Thus, appellant has not preserved error. See Tex. R.
App. P. 33.1; Curry, 910 S.W.2d at 497; Davis, 586 S.W.3d at 590–91.

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Appellant’s sole issue is overruled. The trial court’s judgments as modified
nunc pro tunc are affirmed.1

/s/ Ken Wise
Justice

Panel consists of Justices Wise, Spain, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b)

1
The nunc pro tunc modifications specify that the sentences shall run consecutively as
follows: (1) cause number 17-DCR-080374A; (2) cause number 17-DCR-080375; and cause
number 17-DCR-080376A.

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