Opinion filed August 4, 2022

In The

Eleventh Court of Appeals __________

No. 11-20-00236-CR

__________

OWEN DANIEL HEATH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 28313A

M E M O R A N D U M O P I N I O N

Owen Daniel Heath, Appellant, entered an open plea of guilty to aggravated 

assault with a deadly weapon, a first-degree felony, for his role as the driver of a 

vehicle used during the commission of the shooting of Andrew Kestler.

1

 TEX. PENAL 

CODE ANN. § 22.02(a), (b)(3) (West Supp. 2021). The trial court assessed his 

punishment at confinement for fifteen years in the Institutional Division of the Texas 

1

In Texas, under a doctrine known as the law of parties, a person is criminally responsible for an 

offense committed by the conduct of another if, “acting with intent to promote or assist the commission of 

the offense, he . . . aids, or attempts to aid the other person to commit the offense.” PENAL § 7.02(a)(2)

(West 2021).
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Department of Criminal Justice. In a single issue, Appellant contends that his 

sentence constitutes cruel and unusual punishment in violation of the Constitutions 

of the United States and of the State of Texas.2 We affirm.

Background

On April 23, 2019, the victim purchased an ounce of marihuana and drove to 

Abilene to sell ten grams to Shyla Curtis. They arranged to meet in an HEB parking 

lot. Curtis did not come alone. She was accompanied by three young men. 

Appellant was driving, and his friend Michael Giddings was in the front passenger 

seat. Curtis was sitting in the backseat with Eli Robles, the shooter. Giddings 

attempted to purchase the marihuana with a fake hundred-dollar bill, but the victim 

rejected it and left without making a deal. The foursome, with Appellant still driving 

the vehicle, proceeded to follow the victim’s vehicle for nearly twenty minutes,

obstructing the flow of traffic at times during this pursuit. Eventually, Appellant 

caught up to the victim and drove up alongside the victim’s vehicle in the left lane 

of Highway 83/84. Within seconds, Robles began shooting at the victim. The 

victim’s vehicle quickly began to decelerate once the shooting began, and it 

eventually stopped on the shoulder of Highway 83/84. Appellant sped away from 

the scene at around one hundred miles per hour and made no effort to alert the 

authorities about what happened.

Jason Wade, a deputy with the Taylor County Sheriff’s Office, arrived on the 

scene and observed the victim’s vehicle on the shoulder of Highway 83/84, with a 

shattered driver-side window and bullet holes in the driver-side door. He testified 

that the bullet holes in the door were all within about one foot of one another. He 

2

“[B]oth the United States Constitution and the Texas Constitution include protections against cruel 

and unusual punishment.” Robles v. State, No. 11-20-00174-CR, 2022 WL 1497354, at *5 (Tex. App.—

Eastland 2022, no pet. h.) (mem. op., not designated for publication). “[T]here is no significant difference 

between these two constitutional protections.” Id. (citing Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. 

App. 1997)).
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then discovered the victim lying on the ground in front of the vehicle, with multiple 

gunshot wounds to the left side of his body and face. The victim was taken to 

Hendrick Medical Center, where he was attended to by a surgeon, Dr. Jack 

Needham. Dr. Needham observed four separate gunshot wounds. One bullet went 

through the victim’s left hand; another struck and fractured his left elbow; the third

struck him in the chin and sent fragments into his left eye; and the last one entered

the left side of his chest and became lodged in his right lung. Dr. Needham opined 

that the victim’s injuries were life-threatening and satisfied the legal definition of 

“serious bodily injury.” By the time of trial, the victim had undergone at least seven 

surgeries due to the injuries he sustained from the shooting.

Appellant did not dispute any of the victim’s testimony at trial but sought

leniency because of his lesser role and culpability in the shooting. He testified that 

he was only involved in the failed drug sale because Giddings offered him ten dollars 

in gas money if he would drive. He testified that he pursued the victim in his car so 

that Giddings could fight him3 but that he had no knowledge that Robles had a gun 

with him. In fact, Appellant testified that he hardly even knew Robles. He testified

that the reason he sped away after the shooting, rather than stopping to check on the 

victim, was because there was a lunatic in the back of his car with a gun who had 

just demonstrated his willingness to shoot at a person over one hundred dollars’ 

worth of marihuana. In short, he was worried for his own life. He explained that 

the reason he did not alert the authorities was because he feared that he would suffer 

retaliation if he were to “snitch.” Again, he did not act because he feared for 

his own life in that moment. The victim testified that he “ha[s] no hard 

feelings against” Appellant, and the victim specifically stated: “If - - if the Judge 

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Appellant and the victim both testified that the victim was texting with Curtis and Giddings while 

Appellant was following the victim and that the substance of the text messages was that Giddings wanted 

to have a fist fight with the victim. 
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believes he’s reformed and can be reformed, then I feel like he should have a . . . 

pretty decent sentence.”

The trial court assessed Appellant’s punishment at confinement for fifteen

years in the Institutional Division of the Texas Department of Criminal Justice. 

Appellant filed a motion for a new trial, arguing that his fifteen-year sentence is

grossly disproportionate to the severity of the offense, “given the facts of the case.”

Discussion

I. Appellant’s sentence is not grossly disproportionate to his offense.

A. Standard of Review

When we review a trial court’s sentencing determination, “a great deal of 

discretion is allowed the sentencing judge.” Renfroe v. State, 529 S.W.3d 229, 233 

(Tex. App.—Eastland 2017, pet. ref’d) (quoting Jackson v. State, 680 S.W.2d 809, 

814 (Tex. Crim. App. 1984)). We will not disturb a trial court’s decision as to 

punishment absent a showing of abuse of discretion and harm. Id. 

“The concept of proportionality is embodied in the Constitution’s ban on cruel 

and unusual punishment and requires that punishment be graduated and proportioned 

to the offense.” State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016)

(citing U.S. CONST. amend VIII). This is a “narrow principle that does not require 

strict proportionality between the crime and the sentence.” Id. (citing Harmelin v. 

Michigan, 501 U.S. 957 (1991) (Kennedy, J. concurring)). Rather, to run afoul of 

the Eighth Amendment, a sentence must be grossly disproportionate to the crime. 

Id. (citing Ewing v. California, 538 U.S. 11, 23 (2003) (plurality opinion)). For some 

context, the Supreme Court of the United States “has rejected a disproportionality 

attack on a sentence of twenty-five years to life imposed . . . [on] a defendant who 

merely stole three golf clubs.” Id. at 323 (citing Ewing, 538 U.S. at 29–30). In short, 

a punishment for a term of years will be grossly disproportionate “only in the

exceedingly rare or extreme case.” Id. at 322–23 (citing Lockyer v. Andrade, 538 
5

U.S. 63, 73 (2003)). Moreover, a punishment that falls within the statutory range

determined appropriate by the legislature for an offense will generally not be 

considered “excessive, cruel, or unusual.” Id. at 323 (citing Ex parte Chavez, 213 

S.W.3d 320, 323–24 (Tex. Crim. App. 2006)). 

To determine whether a sentence for a term of years is grossly 

disproportionate to the offense committed, we “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.” Id.

(citing Graham v. Florida, 560 U.S. 48, 60 (2010); McGruder v. Puckett, 954 F.2d 

313, 316 (5th Cir. 1992)). “In the rare case in which this threshold comparison leads 

to an inference of gross disproportionality, the court should then compare the 

defendant’s sentence with the sentences received by other offenders in the same 

jurisdiction and with the sentences imposed for the same crime in other 

jurisdictions.” Id. (citing Graham, 560 U.S. at 60). If this second round of 

comparisons confirms the initial judgment from the first round of comparisons that 

the sentence is grossly disproportionate, the sentence is cruel and unusual. Id.

B. Analysis

Appellant pleaded guilty to a first-degree felony. PENAL § 22.02(b)(3). The 

punishment range for a first-degree felony is imprisonment for life or for a term of 

not less than five years or more than ninety-nine years. Id. § 12.32(a). Appellant’s 

punishment was assessed at imprisonment for fifteen years, which is considerably 

closer to the statutory minimum of five years than the statutory maximum of ninetynine years or life. Generally, a sentence for a term of years that falls within the 

statutory range prescribed by the legislature will not amount to cruel and unusual 

punishment. Simpson, 488 S.W.3d at 322. This is especially true when the sentence, 

like Appellant’s, is at the lower end of the statutory range. See, e.g., Winters v. State, 

No. 05-19-00696-CR, 2020 WL 5036148, at *8 (Tex. App.—Dallas July 2, 2020,
6

pet. ref’d) (mem. op., not designated for publication); Mosley v. State, No. 01-18-

00812-CR, 2019 WL 5607225, at *7 (Tex. App.—Houston [1st Dist.] Oct. 31, 2019, 

no pet.) (mem. op., not designated for publication). If a sentence for a term of years 

is presumptively not excessive so long as it falls anywhere within the statutory range 

prescribed by the legislature, then the presumption becomes increasingly weighty as

the sentence moves down the scale toward the lower end of that range.

When we compare the gravity of the offense that Appellant committed to the 

severity of his sentence, we are not persuaded that the punishment received was 

grossly disproportionate. Simpson, 488 S.W.3d at 322. Appellant relentlessly drove 

in pursuit of the victim for twenty minutes, cutting off other vehicles and obstructing 

the flow of traffic in order to do so. Appellant then drove up alongside the victim’s 

vehicle and kept pace with it long enough for Robles to fire multiple rounds into the 

driver’s side door of the victim’s vehicle, with each shot landing within about one 

foot of the other. As the trial court put it, “for six shots to be grouped as tightly as 

these, the driver and the shooter had to be acting in concert.” The victim suffered 

gunshot wounds to his chest, elbow, hand, and face, and had already undergone 

seven surgeries by the time of Appellant’s sentencing hearing. 

Appellant argues that his fifteen-yearsentence is excessive because (1) he was 

only eighteen years old when the offense occurred, (2) he did not know Robles had 

a gun until the shooting began, and (3) he failed to prevent or mitigate the offense 

only because he was afraid of Robles. In other words, Appellant argues that there 

are mitigating circumstances that merit a reduced sentence for the role he played in 

the commission of this offense. While Appellant may have presented argument “that 

his sentence was too harsh,” that does not necessitate a finding that it was 

unconstitutional. Id. at 324 (citing State v. Zalman, 400 S.W.3d 590 (Tex. Crim.

App. 2013)). Ostensibly, Appellant already did receive a reduced sentence from the 
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trial court inasmuch as the statutory range for first-degree felonies would have 

permitted imprisonment for up to ninety-nine years or life. 

Considering the gravity of Appellant’s offense and the severity of his fifteenyear sentence, which is clearly on the lower end of the punishment range for firstdegree felonies, we cannot say that Appellant’s sentence is grossly disproportionate 

to the offense to which he pleaded guilty and for which he was convicted. 

Accordingly, we need not compare Appellant’s sentence with the sentences of others 

received for similar crimes in this jurisdiction or sentences received in other 

jurisdictions. Renfroe, 529 S.W.3d at 234; see also Graham, 560 U.S. at 60;

McGruder, 954 F.2d at 316. We hold that the trial court did not abuse its discretion, 

nor did it violate Appellant’s Eighth Amendment rights, when it assessed 

Appellant’s punishment at fifteen years’ imprisonment. See Young v. State, No. 11-

16-00325-CR, 2018 WL 5290020, at *3 (Tex. App.—Eastland Oct. 25, 2018, no 

pet.) (mem. op., not designated for publication) (concluding that defendant’s 

sentence of twenty years’ imprisonment for the offense of aggravated assault was 

not violative of the Eighth Amendment even though the defendant pleaded guilty 

and had no prior criminal history). Accordingly, we overrule Appellant’s sole issue 

on appeal.

This Court’s Ruling 

We affirm the judgment of the trial court. 

W. BRUCE WILLIAMS

August 4, 2022 JUSTICE 

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.