Evan Rayal Reifsteck v. the State of Texas

NO. 12-23-00107-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EVAN RAYAL REIFSTECK, § APPEAL FROM THE 369TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Appellant, Evan Rayal Reifsteck, appeals his sentences for aggravated kidnapping and
aggravated assault causing severe bodily injury. In two issues, he alleges that the sentences were
grossly disproportionate to the crimes committed and that the trial court erred by failing to hold a
hearing on his motion for new trial. We affirm.

BACKGROUND

Appellant was indicted for the offenses of aggravated kidnapping1 and aggravated assault
causing severe bodily injury,2 alleged to have occurred on or about September 22, 2020.
Appellant pleaded “not guilty” to both charges, and this matter proceeded to a jury trial. The
jury found Appellant “guilty” of both offenses and assessed punishment of twenty years’
imprisonment for each offense. The trial court rendered judgement in accordance with the jury’s
verdict with the sentences to be served concurrently.
Appellant filed a motion for new trial. He alleged entitlement to a new trial because the
“Arresting/Investigating Department” possessed additional Brady evidence that was not

1
TEX. PENAL CODE ANN. § 20.04 (West 2023).
2
Id. § 22.02(a)(1) (West 2023).
disclosed to Appellant, and because he had a “meritorious defense as to the range of
punishment.” The trial court did not hold a hearing or rule on Appellant’s motion, and it was
consequently overruled by operation of law. This appeal followed.

CRUEL AND UNUSUAL PUNISHMENT

In his first issue, Appellant argues that the sentence of twenty years’ imprisonment for
each offense 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 offenses 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 sentences were
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

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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 aggravated kidnapping and aggravated assault causing severe bodily injury,
both second-degree felonies with a punishment range from two to twenty years of imprisonment.
TEX. PENAL CODE ANN. §§ 20.04, 22.02(a)(1), 12.33 (West 2023). Thus, the twenty-year
sentence for each offense imposed by the jury 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 sentences are grossly disproportionate to his crimes. 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

3
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
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 offenses Appellant committed— aggravated kidnapping and aggravated
assault causing severe bodily injury—are far more serious than the combination of offenses
committed by the appellant in Rummel, while Appellant’s sentences are significantly less severe
than 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 are
Appellant’s sentences 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
first issue.

MOTION FOR NEW TRIAL

In his second issue, Appellant argues that the trial court abused its discretion in
overruling his motion for new trial by operation of law without holding a hearing.
Applicable Law
The purpose of a hearing on a motion for new trial is to decide whether the cause should
be retried and to prepare a record for presenting issues on appeal in the event the motion is
denied. See Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). The opportunity to
prepare a record for appellate review makes a hearing on a motion for new trial a critical stage,
but such a hearing is not an absolute right. Id. We review a trial court’s denial of a hearing on a
motion for new trial for an abuse of discretion and reverse only when the trial judge’s decision
lies outside the zone of reasonable disagreement. Hobbs v. State, 298 S.W.3d 193, 200 (Tex.
Crim. App. 2009). A trial court is not required to hold a hearing on a motion for new trial if the
movant does not request a hearing. Schneider v. State, 623 S.W.3d 38, 45 (Tex. App.—Austin
2021, pet. ref’d); see also Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005)

4
(reviewing court does not reach question of whether trial court abused its discretion in failing to
hold hearing on motion for new trial if no request for hearing was presented).
When a movant does request a hearing on the motion for new trial, no hearing is required
when the matters raised in the motion for new trial are determinable from the record. Hobbs,
298 S.W.3d at 199. Moreover, to prevent “fishing expeditions,” a defendant who has raised
matters not determinable from the record in a motion for new trial must additionally establish the
existence of reasonable grounds showing that the defendant could potentially be entitled to relief.
Id.; Smith, 286 S.W.3d at 339. A motion for new trial must be supported by an affidavit
specifically setting out the factual basis for the claim. Hobbs, 298 S.W.3d at 200. The affidavit
need not reflect every legal component required to establish relief but must reflect that
reasonable grounds exist for the relief sought, and specifically show the truth of the grounds
alleged as the basis for a new trial. Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002).
However, if the affidavit is conclusory, is unsupported by facts, or fails to provide the requisite
notice of the basis for claimed relief, no hearing is required. Hobbs, 298 S.W.3d at 200.
Appellate review is limited to the trial judge’s determination of whether the defendant raised
grounds that are both undeterminable from the record and reasonable, meaning they could entitle
the defendant to relief. Smith, 286 S.W.3d at 340. This is because the trial judge’s discretion
extends only to deciding whether these two requirements are satisfied; if the trial judge finds that
the defendant has met the criteria, he has no discretion to withhold a hearing. Id.
Analysis

As an initial matter, we note that it appears Appellant did not preserve this issue for
appellate review. See TEX. R. APP. P. 33.1(a). Although the record shows that Appellant timely
filed his motion for new trial, it does not show that he ever requested a hearing on the motion. In
the motion itself, Appellant did not request a hearing, but instead asked the trial court to vacate
the judgment as to punishment and grant a new trial on punishment. Because Appellant did not
request a hearing, the trial court could not have abused its discretion in failing to hold one. See
Gallegos v. State, 76 S.W.3d 224, 228 (Tex. App.—Dallas 2002, pet. ref’d); Schneider v. State,
623 S.W.3d at 45; Brooks v. State, 894 S.W.2d 843, 847 (Tex. App.—Tyler 1995, no writ).
But even assuming Appellant requested a hearing on his motion for new trial, we cannot
conclude that the trial court abused its discretion in allowing the motion to be overruled without
a hearing. To entitle the movant to a hearing, the matters raised in a motion for new trial must be

5
undeterminable from the record, and the movant must establish by affidavit the existence of
reasonable grounds for the relief sought. Hobbs, 298 S.W.3d at 199; Martinez, 74 S.W.3d at 21.
Whether Appellant’s motion for new trial raises matters not determinable from the record is
somewhat uncertain, because the motion contains very little information, factual or otherwise.3
The motion asserts, in a conclusory fashion, some of the factors for a finding of reversible error
under Brady.4 However, the motion does not identify or describe the “additional information”
the State allegedly possessed that “would amount to Brady Evidence.” Similarly, the motion
states that Appellant had a “meritorious defense as to the range of punishment,” but is silent
regarding the nature of this defense.
Assuming arguendo that Appellant’s motion for new trial met the first criterion, we must
determine whether Appellant established the existence of reasonable grounds for the relief
sought. Martinez, 74 S.W.3d at 21. Appellant’s motion for new trial was not accompanied by an
affidavit from either Appellant or any other person. “As a prerequisite to obtaining a hearing on
a motion for new trial, the motion must be supported by an affidavit, either of the accused or
someone else specifically showing the truth of the grounds of attack.” Crowell v. State, 642
S.W.3d 885, 889 (Tex. App.—Houston [14th Dist.] 2021, pet. denied) (citing Smith, 286 S.W.3d
at 339). “A trial court does not abuse its discretion if it denies a hearing on a timely motion for
new trial that is not supported by affidavits.” Medina v. State, No. 05-19-01116-CR, 2021 WL
247965, at *1 (Tex. App.—Dallas Jan. 26, 2021, pet. ref’d) (mem. op., not designated for
publication) (citing Klapesky v. State, 256 S.W.3d 442, 455 (Tex. App.—Austin 2008, pet.
ref’d)). Because Appellant did not establish the existence of grounds that could entitle him to
relief, he was not entitled to a hearing on his motion for new trial, and the trial court did not
abuse its discretion in denying Appellant’s motion for new trial without a hearing. See Hobbs,
298 S.W.3d at 200. We overrule Appellant’s second issue.

3
In his brief on appeal, Appellant more specifically identifies the alleged evidence. However, this
information was not before the trial court. To the extent Appellant references facts that do not appear in the
appellate record, we will not consider those facts in our analysis. Jack v. State, 149 S.W.3d 119, 121 n.1 (Tex.
Crim. App. 2004).
4
See Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) (citing Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194, 10 L. Ed.2d 215 (1963) (setting forth factors necessary for finding of Brady violation)).

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DISPOSITION

Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered October 6, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

7
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 6, 2023

NO. 12-23-00107-CR

EVAN RAYAL REIFSTECK,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 369th District Court
of Anderson County, Texas (Tr.Ct.No. 369CR-21-35096)

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.

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