Jake Henry Oglesby v. State ( 2015 )

ACCEPTED
07-15-00002-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
7/22/2015 11:51:34 AM
Vivian Long, Clerk
No. 07-15-00002-CR
FILED IN
IN THE 7th COURT OF APPEALS
AMARILLO, TEXAS
COURT OF APPEALS 7/22/2015 11:51:34 AM
VIVIAN LONG
OF THE SEVENTH SUPREME JUDICIAL CIRCUIT CLERK
JAKE HENRY OGLESBY
Appellant
v.
STATE OF TEXAS
Appellee
APPEAL FROM THE 52ND JUDICIAL DISTRICT COURT
OF CORYELL COUNTY, TEXAS
TRIAL COURT CAUSE NUMBER: FISC-13-21767
AND TRANSFERRED FROM THE TENTH COURT OF APPEALS
STATE’S BRIEF
CHARLES KARAKASHIAN, JR.
SPECIAL PROSECUTOR
52ND JUDICIAL DISTRICT
STATE BAR NO. 11095700
P.O. Box 929
Gatesville, Texas 76528
(254) 865-5911
(254) 865-5147 – Facsimile
E-Mail: ckarakashian@aol.com
July 22, 2015
ORAL ARGUMENT NOT REQUESTED
NAMES OF THE PARTIES TO THE FINAL JUDGMENT
APPELLANT: JAKE HENRY OGLESBY
Appellant's Trial Counsel
Mr. Steve Lee
806 South Main
Copperas Cove, Texas 76522
Mr. Bryon Barnhill
331 Indian Trail, Suite 101
Harker Heights, Texas 76548
Appellant's Appellate Counsel
Mr. Stan Schwieger
601 Austin Avenue, Suite 12
Post Office Box 975
Waco, Texas 76703-0975
THE STATE OF TEXAS
Appellee's Trial Counsel
Ms. Amanda Speer,
Assistant District Attorney
Post Office Box 919
Gatesville, Texas 76528-0919
Appellee’s Appellate Counsel
Charles Karakashian, Jr.
Special Prosecutor
Post Office Box 919
Gatesville, Texas 76528-0919
TRIAL JUDGE
The Honorable Judge Trent Farrell
52nd Judicial District Court
Coryell County Courthouse
620 East Main Street, 2nd Floor
Gatesville, Texas 76528
ii
TABLE OF CONTENTS
NAMES OF THE PARTIES TO THE FINAL JUDGMENT .................................. ii
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES .....................................................................................v
STATEMENT OF ORAL ARGUMENT ................................................................. 1
STATEMENT OF THE CASE .................................................................................. 1
REPLY TO ISSUES PRESENTED .......................................................................... 3
Reply to Issue Number One
Appellant’s sentence is neither cruel nor unusual under the Texas
Constitution ..........................................................................................................3
Reply to Issue Number Two
Appellant’s sentence is neither cruel nor unusual under the Eighth
Amendment of the United States Constitution .................................................... 3
Reply to Issue Number Three
Appellant’s sentence is not grossly disproportional given his original offense . 3
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF ARGUMENT .................................................................................7
Reply to Issue Number One Restated ......................................................................... 8
Reply to Issue Number Two Restated ........................................................................ 8
Reply to Issue Number Three Restated ...................................................................... 8
iii
ARGUMENT AND AUTHORITIES ........................................................................ 8
A. The Standard of Review .............................................................................. 8
B. Preservation of Error ................................................................................. 9
C. Argument ..................................................................................................10
1. Appellant’s Sentence is within the Prescribed Statutory
Range ........................................................................................................12
2. Cruel or Unusual Punishment under the Texas Constitution
and the Eighth Amendment ...................................................................13
a. Cruel “or” Unusual v. Cruel “and” Unusual – A
Distinction without a Difference ...............................................13
b. Appellant’s punishment should be analyzed under
Federal and state constitutional provisions jointly ..................14
3. The Disproportionality Analysis ............................................................16
a. The Threshold Comparison.......................................................16
b. The Offense ...............................................................................17
c. The Offender and His Victim ....................................................19
d. Appellant Fails to Make it Past the Disproportionality
Threshold ..................................................................................21
e. The Other Solem Factors ..........................................................21
4. Appellant’s Mental Illness ....................................................................24
5. Mental Illness and Proportionality ........................................................26
D. Conclusion ....................................................................................................28
iv
Prayer for Relief .......................................................................................................29
Certificate of Service ...............................................................................................30
Certificate of Compliance ........................................................................................30
v
TABLE OF AUTHORITIES
FEDERAL CASES
Graham v. Florida,
130 S. Ct. 2011 (2010).............................................................................26, 27
Harmelin v. Michigan,
501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy J.
concurring) ...................................................................... 10, 11, 13, 15, 16, 22
Kennedy v. Louisiana,
554 U.S. 407 (2008).......................................................................................18
Lockyer v. Andrade,
538 U.S.63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) ................................... 9
McGruder v. Puckett,
954 F.2d 313 (5th Cir.), cert. denied, 506 U.S. 849, 113 146, 121
L. Ed. 2d 98 (1992) ........................................................................10, 11, 17, 24
Miller v. Alabama,
132 S. Ct. 2455 (2012).......................................................................25, 26, 27
Rummel v. Estelle,
445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) ..............................16
Solem v. Helm,
463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)10, 11, 13, 16, 17, 21, 24
FEDERAL STATUTES
U.S. Const. Amend. VIII ................................................ 3, 4, 7, 8, 10, 13, 15, 16, 22
vi
STATE CASES
Ajisebutu v. State,
236 S.W.3d 309 (Tex. App. – Houston [1st Dist.] 2007, pet. ref’d) ........14, 15
Alvarez v. State,
63 S.W.3d 578 (Tex. App. – Fort Worth 2001, no pet.) ...................10, 20, 22
Arriaga v. State,
335 S.W.3d 331 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) .....22, 23
Baldridge v. State,
77 S.W.3d 890 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd) .............. 14
Baletka v. State,
NO. 09-04-180-CR, NO. 09-04-181-CR 2005 Tex. App. LEXIS 1355, (Tex. App.
Beaumont Feb. 16, 2005, no pet.) (mem. op. not design. for pub.) ........18, 23
Barrow v. State,
207 S.W.3d 377(Tex. Crim. App. 2006) ......................................................... 9
Cantu v. State,
939 S.W.2d 627 (Tex. Crim. App. 1997) ......................................................14
Ex parte Chavez,
213 S.W.3d 320 (Tex. Crim. App. 2006) ........................................................ 9
Dale v. State,
170 S.W.3d 797 (Tex. App. – Fort Worth 2005, no pet.) ...........10, 13, 16, 17
Davis v. State,
119 S.W.3d 359 (Tex. App.--Waco 2003, pet. ref'd) ....................................24
Delacruz v. State,
167 S.W.3d 904 (Tex. App. – Texarkana 2005, no pet.) ..............................16
Diaz-Galvan v. State,
942 S.W.2d 185 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd) ...............16
vii
Dunn v. State,
997 S.W.2d 885 (Tex. App.--Waco 1999, pet. ref'd) ....................................11
Eiland v. State,
993 S.W.2d 215 (Tex. App.-San Antonio 1999, no pet.) ..............................27
Flowers v. State,
No. 10-06-00187-CR, 2007 Tex. App. LEXIS 301 (Tex. App. Waco Jan. 17,
2007, no pet.) (mem. op. not design. for pub.) ..............................................23
Harris v. State,
656 S.W.2d 481 (Tex. Crim. App. 1983) ......................................................15
Hernandez v. State,
No. B14-92-00704-CR, 1994 Tex. App. LEXIS 2182, (Tex. App. Houston
14th Dist. Sept. 1, 1994, pet. ref’d.) (mem. op. not design. for pub.) ........... 15
Holder v. State,
643 S.W.2d 718 (Tex. Crim. App. 1982) ......................................................22
Holt v. State,
NO. 2-06-349-CR, 2007 Tex. App. LEXIS 3627 (Tex. App. Fort Worth May
10, 2007, no pet.) (mem. op., not designated for publication)...........................21, 22
Hyde v. State,
723 S.W.2d 754 (Tex. App.--Texarkana 1986, no pet.) ................................15
Jackson v. State,
680 S.W.2d 809 (Tex. Crim. App. 1984) ............................................9, 10, 12
Jackson v. State,
989 S.W.2d 842 (Tex. App.--Texarkana 1999, no pet.) ................................14
Jarvis v. State,
315 S.W.3d 158 (Tex. App. – Beaumont 2010, no pet.) ................................. 9
Kirk v. State,
949 S.W.2d 769 (Tex. App.--Dallas 1997, pet. ref'd) ...................................12
viii
Lawrence v. State,
420 S.W.3d 329 (Tex. App. – Fort Worth 2014, pet. ref’d.).........................12
Lewis v. State,
428 S.W.3d 860 (Tex. Crim. App. 2014) ......................................................26
Lewis v. State,
448 S.W.3d 138 (Tex. App. Houston 14th Dist. 2014, pet. ref’d.) ........14, 26
Loomis v. State,
No. 07-06-0281-CR, 2007 Tex. App. LEXIS 82 (Tex. App. Amarillo Jan. 8,
2007, no pet.) (mem. op. not design. for pub.) ..............................................23
Mason v. State,
416 S.W.3d 720 (Tex. App.--Houston [14th Dist.] 2013, pet. ref'd) ............ 14
Matthews v. State,
918 S.W.2d 666 (Tex. App. – Beaumont 1996 pet. ref’d). ..........................18
Meadoux v. State,
325 S.W.3d 189 (Tex. Crim. App. 2010) ......................................................27
Moore v. State,
54 S.W.3d 529 (Tex. App. Fort Worth 2001 pet. ref’d.)...................15, 20, 24
Morrison v. State,
No. 11-11-00191-CR , 2013 Tex. App. LEXIS 6527, (Tex. App. – Eastland,
May 30, 2013, pet. ref’d.) (mem. op. not design. for pub.) ............................. 9
Muzquiz v. State,
No. 14-13-01008-CR 2015 Tex. App. LEXIS 960 (Tex. App. Houston 14th
Dist. Feb. 3, 2015, no pet.) (mem. op. not design. for pub.)....................................22
Price v. State,
35 S.W.3d 136 (Tex. App.--Waco 2000, pet. ref'd) (op. on reh'g.)............... 15
Sloan v. State,
418 S.W.3d 884 (Tex. App. Houston 14th Dist. 2013, pet. ref’d.) ............... 27
ix
Sneed v. State,
406 S.W.3d 638 (Tex. App. – Eastland 2013, no pet.)............................16, 17
State ex rel. Smith v. Blackwell,
500 S.W.2d 97 (Tex. Crim. App. 1973) ........................................................15
Stiner v. State,
No. 14-13-01118-CR, 2015 Tex. App. LEXIS 1119 (Tex. App. Houston
[14th Dist.] Feb. 5, 2015, pet. ref’d.) (mem. op. not design. for pub.) ....................27
Teinert v. State,
No. 01-13-00088-CR, 2014 Tex. App. LEXIS 1478 (Tex. App. Houston [1st
Dist.] Feb. 11, 2014, no pet.) (mem. op. not design. for pub.) ......................26
Uranga v. State,
No. 08-12-00161-CR, 2013 Tex. App. LEXIS 12846 (Tex. App. - El Paso
Oct. 16, 2013, no pet.) (mem. op. not design. for pub.) ................................11
Valdez v. State,
No. 10-12-00410-CR, 2014 Tex. App. Lexis 1375 (Tex. App. – Waco
February 6, 2014, pet. ref’d.) (mem. op. not design. for pub.) ..............14, 15, 24, 25
Von Schounmacher v. State,
5 S.W.3d 221 (Tex. Crim. App. 1999) ..........................................................12
Williams v. State,
No. 12-01-00311-CR, 2003 Tex. App. LEXIS 3328, 2003 WL 1883474
(Tex. App.--Tyler Apr. 16, 2003, no pet.) (mem. op., not designated for
pub.) ...............................................................................................................23
Williamson v. State,
175 S.W.3d 522 (Tex. App. – Texarkana 2005, no pet.) ....................9, 18, 21
Winchester v. State,
246 S.W.3d 386 (Tex. App. – Amarillo 2008, pet. ref’d.) ......................11, 21
x
STATE STATUTES
Tex. Const. Art. I, §13 .............................................................................................13
Tex. Code Crim. Proc. Art. 42.12, Sec. 3(g) (West 2014) ......................................18
Tex. Gov't Code §508.046 (West 2014) ..................................................................18
Tex. Gov't Code §508.145(d) (West 2014) .............................................................18
Tex. Pen. Code Sec. 12.32 (West 2013) ..................................................................12
Tex. Penal Code Ann. §12.42(c) (3) (West Supp. 2007) (enacted 2007)................ 18
Tex. Pen. Code Ann. §22.021(a) (1) (B) (iii) (West 2013) ...........................1, 12, 18
Tex. Pen. Code Ann. §22.021(e) (West 2013).....................................................1, 12
STATE RULES
Tex. R. App. P. 21.8(a), (c) ........................................................................................2
TEX. R. APP. P. 41.3 .................................................................................................11
TEX. R. APP. P. 47.1 .................................................................................................24
TEX. R. APP. P. 47.4 .................................................................................................24
OTHER STATES’ STATUTES
LA. REV. STAT. ANN. §14:42(D) (2) (a) (2005) ..................................................18
GA. CODE ANN. §16-6-1(b) (2005) ......................................................................18
MT CODE ANN. §45-5-503 (2007) (enacted 1997)...............................................18
OK STAT. TIT. 10, §7115(K) (West 2007 Supp.) (enacted 2006) .........................18
SC CODE ANN. §16-3-655(C) (1) (Supp. 2007) (enacted 2006) ......................... 18
xi
ORAL ARGUMENT
TO THE HONORABLE COURT OF APPEALS:
The State does not request oral argument since oral argument would not be
of assistance to this Court.
STATEMENT OF THE CASE
This is a criminal prosecution for Aggravated Sexual Assault of a Child. On
June 25, 2013, the Grand Jury indicted Appellant, Jake Henry Oglesby, with
Aggravated Sexual Assault of a Child by intentionally or knowingly causing the
sexual organ of a male child younger than fourteen years of age, to contact or
penetrate the mouth of Appellant. 1
The indictment was filed for violation of §22.021(a) (1) (B) (iii) of the Texas
Penal Code, 2 punishable as a Felony of the First Degree under §22.021(e) of the
Texas Penal Code. 3
1
(1 CR 4).
2
See Tex. Pen. Code Ann. §22.021(a) (1) (B) (iii) (West 2013).
3
See Tex. Pen. Code Ann. §22.021(e) (West 2013).
1
Appellant entered a plea of guilty to the above referenced charge on
February 5, 2014. 4 The trial court deferred the finding of guilt and placed
Appellant on ten years deferred adjudication. 5
The State filed a Motion to Adjudicate Guilt and Revoke Community
Supervision on May 16, 2014. The Motion alleged Appellant violated three
conditions of his deferred adjudication.6
Appellant entered a plea of not true to each allegation. 7 Testimony was
taken on August 29, September 3, 15, 22, and October 3, 2014. On October 29,
2014, the trial court found two of the three alleged violations true. 8 On that same
date, the trial court adjudicated Appellant guilty of the offense alleged in the
indictment and sentenced Appellant to forty (40) years in the Texas Department of
Criminal Justice – Institutional Division. 9
Trial counsel filed a Motion for New Trial and Motion in Arrest of Judgment
on November 21, 2014. It was denied by operation of law on February 4, 2015.10
Notice of Appeal was filed timely on December 1, 2014.11
4
(1 CR 56-59).
5
(1 CR 84-85).
6
(1 CR 76-77).
7
(2 RR 5).
8
(7 RR 4).
9
(7 RR 5).
10
See Tex. R. App. P. 21.8(a), (c).
11
(1 CR 114 – 117).
2
REPLY TO THE ISSUES PRESENTED
Reply to Issue Number One:
Appellant’s sentence is neither cruel nor unusual under the Texas
Constitution.
Reply to Issue Number Two:
Appellant’s sentence is neither cruel nor unusual under the Eighth
Amendment of the United States Constitution.
Reply to Issue Number Three:
Appellant’s sentence is not grossly disproportional given his original
offense.
STATEMENT OF FACTS
“I saw Mr. Oglesby as a very disturbed young man.” 12
This case is about a very disturbed young man who sexually assaulted a
child, was given a second chance by being placed on deferred adjudication
probation, then violated his probation within 3 months of receiving it, and now
complains of being sentenced to prison.13
12
(2 RR 11).
13
Appellant only challenges the severity of the sentence and not the sufficiency of the evidence
to revoke.
3
Dr. William Carter was the first witness called by the defense. He was
called as an expert to assist the defense in relation to the allegations concerning the
motion to adjudicate. Dr. Carter testified that, based upon his examination of
Appellant, he diagnosed him as having two different personality disorders. 14 When
asked by defense counsel of Appellant’s likelihood for re-offending, Dr. Carter
responded:
“His prognosis in all areas is poor and that would include a high
likelihood of recidivism.” 15
Dr. Carter went on to testify prison was the only place that could address
Appellant’s mental health needs given the limited options of continuing on
probation or incarceration. 16 Dr. Carter did testify Appellant was mentally
competent and so competency was not an issue. 17 His opinion was that there was a
high probability Appellant would continue to be a substantially disturbed person
for 5, 10 or 30 years into the future.
Dr. Carter also testified to the treatment programs in prison. 18
Dr. Carter repeated that Appellant was at high risk to re-offend and even in
thirty years would still be sexually disturbed and even deviant. 19 During cross-
14
(2 RR 11, 12) The disorders were borderline personality disorder and histrionic personality
disorder.
15
(2 RR 18) The doctor’s psychological evaluation was entered and admitted into evidence as
Defendant’s Exhibit No. 1 (2 RR 9).
16
(2 RR 22).
17
(2 RR 22, 23).
18
(2 RR 27, 28) Dr. Carter did admit the treatment options in prison were limited.
4
examination, Dr. Carter was asked if it were likely Appellant would re-offend
against children:
“Q. Because in your opinion, Doctor, he has a high risk of
reoffending?
A. Yes.
Q. With the same type of victims that he’s gone after before?
A. Yes.
Q. Would you agree the best option in this case is confinement?
A. Yes.” 20
Dr. Carter, who, remember, was Appellant’s own witness, went on to testify
that due to Appellant’s prognosis, it would be important for him to be kept out of
the community and prison was really the only option. 21
Testimony was also taken concerning the original offense for which
Appellant was placed on deferred adjudication. Gatesville police Detective Dennis
Fueston testified about his investigation into the offense. He stated the offense
involved Appellant touching a five-year-old victim’s male sex organ with
Appellant’s mouth. 22 Detective Fueston, who has 13 to 14 years of investigating
sex offenses, was asked his professional opinion of Appellant’s risk of re-
19
(2 RR 34).
20
(2 RR 36, 37) The victim in this case was Appellant’s six-year-old cousin (2 RR 35, 42).
21
(2 RR 45) Dr. Carter also testified he would be concerned if Appellant were around a public
park or somewhere where there were small children (2 RR 48). He stated Appellant had a
much higher risk of re-offending against children that were around him and known to him (2
RR 43).
22
(3 RR78) Previous testimony placed the victim’s age at six years old. The Order of Deferred
Adjudication sets the child’s age at six years (1 CR 84).
5
offending. He stated that he believed Appellant would be at high risk of
committing similar offenses.23
The State asked the Court for the maximum sentence. The State asked the
Court to consider the original offense, Appellant’s failure to comply with the terms
and conditions of his deferred adjudication and the testimony of the defense’s own
expert concerning Appellant’s high risk of re-offending until he was of sufficient
age to be physically unable to re-offend. The State concluded its argument by
stating:
“This is someone who is a high risk to society, and he does not need
to be given the chance to be around anyone to get hurt.” 24
Since Appellant challenges the appropriateness of his sentence, the Court’s
comment during sentencing should be considered.
“The Court has considered the relief that’s being requested, and the
Court will be brief in its sentencing, but the Court will comment
briefly on a few issues because of the nature of this matter brought
before the Court.”25
The Court first noted the terms of the original plea agreement, and then it
noted that both sides agreed to waive the presentence investigation and the court
did waive it. The Court considered all of the evidence presented and found
23
(3 RR 81, 97, 98) The detective expressed concern that Appellant had violated his probation
after only three months (3 RR 81). Detective Fueston also testified about a second allegation
against Appellant concerning a similar sexual offense against another child, which was
subsequently dismissed (3 RR 79-80, 89).
24
(6 RR 52 – 58).
25
(7 RR 4).
6
Appellant did violate two of the terms and conditions of his probation. After
adjudicating Appellant guilty of the original offense, the Court commented it
would not sentence Appellant to Life as requested by the State, but, under the
circumstances, could not continue Appellant on probation. The Court sentenced
Appellant to forty years.26
SUMMARY OF ARGUMENT
Appellant raises three constitutional challenges to his forty-year sentence.
Appellant first challenges the sentence under the Texas Constitution. Appellant
then brings two challenges under the Eighth Amendment of the United States
Constitution. He asserts the forty-year sentence is cruel and unusual and grossly
disproportionate.27
The State argues the forty-year sentence was appropriate given the original
offense of Aggravated Sexual Assault of a Child. It was within the prescribed
statutory range. It does not violate either the Texas Constitution or the Eighth
Amendment of the United States Constitution. Given the serious nature of this sex
crime committed by the Defendant against a child, and further, given the testimony
26
(7 RR 4,5) The Court also ordered a post-sentence investigation for purposes of assisting the
Texas Department of Criminal Justice for Appellant’s placement in an appropriate unit (7 RR
8).
27
See Appellant’s Brief at page 4. Appellant states the sentence was 99 years, which is
incorrect. Appellant correctly states the term of imprisonment at 40 years in his Statement of
the Case at page ix.
7
of the Defendant’s own expert, the sentence of forty years is not disproportionate
to the crime.
Appellant has failed to show his sentence was unconstitutional or
disproportionate. The State asks Appellant’s conviction and punishment be
affirmed.
Reply to Issue Number One Restated:
Appellant’s sentence is neither cruel nor unusual under the Texas
Constitution.
Reply to Issue Number Two Restated:
Appellant’s sentence is neither cruel nor unusual under the Eighth
Amendment of the United States Constitution.
Reply to Issue Number Three Restated:
Appellant’s sentence is not grossly disproportional given his original
offense.
ARGUMENT AND AUTHORITIES
A. The Standard of Review
A judge’s sentencing decision is discretionary as long as it is within the
range of punishment. The decision of what particular punishment to assess within
the prescribed statutory range is a “normative, discretionary function” and the
8
sentencer’s discretion is “essentially unfettered.” 28 The sentencing judge is
allowed a great deal of discretion. An appellate review of a judge’s decision as to
punishment should not be disturbed absent a showing of abuse of discretion and
harm. 29 The standard of review of a sentence imposed by the trial court is for an
abuse of discretion. 30 Further, the severity of a sentence is reviewable on appeal
only under a gross-disproportionality standard when the sentence is within the
legislatively prescribed range, is based upon the sentencer’s informed normative
judgment, and is in accordance with due process of law. 31
B. Preservation of Error
Appellant timely filed a motion for new trial complaining of the sentence as
“cruel and unusual” under the Texas and United States Constitutions because it
was grossly disproportionate to the crime. 32 The State concedes error was
preserved. 33
28
Barrow v. State, 207 S.W.3d 377, 379-81 (Tex. Crim. App. 2006); Jarvis v. State, 315 S.W.
3d 158, 162 (Tex. App. – Beaumont 2010, no pet. hist.).
29
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).
30
Id; Morrison v. State, 2013 Tex. App. LEXIS 6527, No. 11-11-00191-CR at *13 (Tex. App.
– Eastland, May 30, 2013, pet. ref’d.) (mem. op. not design. for pub.).
31
See Jarvis v. State, 315 S.W. 3d 158, 162 (Tex. App. – Beaumont 2010, no pet. hist.); Ex
parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006); see also Lockyer v.
Andrade, 538 U.S. 63, 72-73, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003).
32
(1 CR 10-12) Appellant’s Motion for New Trial does not address the difference between
“cruel and unusual” and “cruel or unusual” as advanced in his Appellate Brief. Appellant
does not complain of the denial of his Motion for New Trial.
33
Williamson v. State, 175 S.W.3d 522, 524 (Tex. App. – Texarkana 2005, no pet.) A motion
for new trial is an appropriate way to preserve this claim for review.
9
C. Argument
The State acknowledges Appellant is a disturbed individual with coexisting
personality disorders. The State further acknowledges Appellant suffered severe
sexual abuse as a child as detailed in Dr. Carter’s testimony and in Appellant’s
Brief. However, Appellant’s personality disorders do not rise to the level of
insanity. 34 Nor do his past experiences of abuse excuse his own sexual assault of
another young innocent.
Generally, a sentence that falls within the range of punishment authorized by
statute is not cruel, unusual or excessive. 35 A narrow exception to this rule is
recognized when the sentence is grossly disproportionate to the offense. 36 The
U.S. Supreme Court applied the “grossly disproportionate” standard in Solem v.
Helm, a non-death penalty case. 37 However, after the Supreme Court's decision in
Harmelin v. Michigan, a question arose as to whether the Eighth Amendment did or
did not prohibit disproportionate sentences in non-death-penalty cases. 38 The Fifth
Circuit of the United States Court of Appeals concluded in McGruder v. Puckett
34
Appellant concedes his sanity at the time of the offense. See Appellant’s Brief at page 7.
35
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Alvarez v. State, 63 S.W.3d
578, 580 (Tex. App. – Fort Worth 2001, no pet.); Dale v. State, 170 S.W.3d 797, 799 (Tex.
App. – Fort Worth 2005, no pet.).
36
Dale, 170 S.W.3d at 799, citing Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 2680,
2706-2707, 115 L. Ed. 2d 836 (1991) (Kennedy J. concurring); Solem v. Helm, 463 U.S. 277,
290-92, 103 3001, 3009-3011, 77 L. Ed. 2d 637 (1983); McGruder v. Puckett, 954 F.2d 313,
316 (5th Cir.), cert. denied, 506 U.S. 849, 113 146, 121 L. Ed. 2d 98 (1992).
37
Solem v. Helm, 463 U.S. 277, 290-92, 103 S. Ct. 3001, 3009-3011, 77 L. Ed. 2d 637 (1983).
38
Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 2680, 2706-2707, 115 L. Ed. 2d 836
(1991) (Kennedy J. concurring).
10
the proportionality analysis survived Harmelin, but Solem did not. 39 The Fifth
Circuit determined that Harmelin required a reviewing court to initially make a
threshold comparison of the gravity of the defendant's offenses against the severity
of his sentence. 40 Only if the reviewing court finds that the sentence is grossly
disproportionate to the offense (the first Solem factor), will it consider the
remaining Solem factors and compare the sentence received to (1) sentences for
similar crimes in the same jurisdiction and (2) sentences for the same crime in
other jurisdictions.41
Many Texas intermediate appellate courts, including the Seventh and Tenth
Courts of Appeals, have adopted McGruder's modified approach. 42
The questions to answer in a disproportionality analysis therefore are: (1)
Was the sentence in the statutory range? (2) Was the sentence grossly
disproportionate? And, if so, (3) Was the sentence different from sentences
imposed in the same and other jurisdictions?
39
McGruder, 954 F.2d at 316.
40
Id.
41
Id.
42
See Winchester v. State, 246 S.W.3d 386, 388 – 391, (Tex. App. – Amarillo 2008, pet.
ref’d.) for an excellent discussion of the evolution of disproportionality under the Solem,
Harmelin and McGruder decisions, and for a complete list of the intermediate appellate
courts following McGruder. See also Dunn v. State, 997 S.W.2d 885, 892 (Waco 1999, pet.
ref'd). (Since the Texas Supreme Court transferred this appeal from the Tenth Court of
Appeals to the Seventh Court of Appeals pursuant to a docket equalization order, this Court
should decide the case in accordance with the precedent of the transferor court under
principles of stare decisis if its decision otherwise would be inconsistent with the precedent
of the transferor court). Tex. R. App. P. 41.3; See also Uranga v. State, 2013 Tex. App.
LEXIS 12846 (Tex. App. El Paso, Oct. 16, 2013, no pet.) (mem. op. not design. for pub.).
11
1. Appellant’s Sentence is Within the Prescribed Statutory
Range
Appellant was convicted of Aggravated Sexual Assault of a Child, a
violation of §22.021(a) (1) (B) (iii) of the Texas Penal Code, 43 which is punishable
as a Felony of the First Degree under §22.021(e) of the Texas Penal Code.44 A
first-degree felony carries a punishment of from 5 to 99 years or life. 45 Appellant’s
sentence of forty years was not only well within the prescribed sentencing range,
but somewhat less than the maximum sentence.46
Generally, punishment assessed within the statutory range for an offense is
47
neither excessive nor unconstitutionally cruel or unusual. When deferred
adjudication community supervision is revoked, the trial court may generally
impose any punishment within the range authorized by statute. 48 In addition, the
punishment imposed is not for the community supervision violations, but rather for
the gravity of the initial offense.49
Since the sentence imposed is well within the statutory range of punishment,
the sentence, under the general rule, is neither cruel nor unusual. As previously
43
See Tex. Pen. Code Ann. §22.021(a) (1) (B) (iii) (West 2013).
44
See Tex. Pen. Code Ann. §22.021 (e) (West 2013).
45
See Tex. Pen. Code Sec. 12.32 (West 2011).
46
Appellant concedes that his sentence was within the statutory range of punishment. See
Appellant’s Brief at page 12.
47
Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.--Dallas 1997, pet. ref'd); see also Jackson v.
State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) As long as a sentence is within the
proper range of punishment, it will not be disturbed on appeal.
48
Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999).
49
See Lawrence v. State, 420 S.W.3d 329, 333 (Tex. App. – Fort Worth 2014, pet. ref’d.).
12
discussed, a narrow exception to the general rule is recognized, however, when the
sentence is grossly disproportionate to the offense. 50 Here, Appellant claims
disproportionality under both the Texas and United States Constitutions. Appellant
also argues the Texas Constitutional provision provides protection against either
cruel or unusual punishment.51
2. Cruel and/or Unusual Punishment under the Texas
Constitution and the Eighth Amendment.
The Texas Constitution provides protection against “cruel or unusual”
punishments.52 The Eighth Amendment to the United States Constitution provides
protection against “cruel and unusual” punishments. 53
a. Cruel “or” Unusual v. Cruel “and” Unusual – A
Distinction without a Difference
Appellant argues the framers of the Texas Constitution used different
terminology than the Federal Constitution for a purpose. He posits the use of the
word “or” evidences an intent to protect against either cruel or unusual
punishments. 54 However, Texas Courts have consistently concluded there is no
50
Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)
(Kennedy J. concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103 S. Ct. 3001, 77 L. Ed. 2d
637 (1983); Dale, 170 S.W.3d 797at 799 (Tex. App. – Fort Worth 2005, no pet.).
51
However, Appellant ultimately conceded the Texas Constitution does not provide greater
protection than the U.S. Constitution. (See Appellant’s Brief at page 23.).
52
Tex. Const. Art. I, §13: “Excessive bail shall not be required, nor excessive fines imposed
nor cruel or unusual punishments inflicted.”
53
U.S. Const. Amend. VIII: “Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.”
54
See Appellant’s Brief at page 11.
13
significant difference between the United States and Texas Constitutional
provisions prohibiting cruel and unusual punishment. 55 The Court of Criminal
Appeals has held there is no significance to the difference in phrasing. 56 Although
Appellant encourages this court nevertheless to recognize a distinction, this Court
is bound by the decisions of the higher court. 57
b. Appellant’s punishment should be analyzed under
federal and state constitutional provisions jointly.
Since the Texas Constitution’s “cruel or unusual” punishment provision
affords no greater protection than its federal counterpart does, the analysis of
Appellant’s punishment contention should be performed under both constitutional
provisions jointly and not separately. 58 As previously noted, Appellant’s sentence
55
See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997) comparing Texas
Constitution Article I, Section 13 with United States Constitution Amendment VIII. See
Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.--Texarkana 1999, no pet.) declining to
afford greater rights regarding cruel and unjust punishment under Texas Constitution than are
afforded under the United States Constitution.
56
See Id (refusing to interpret the language of the Texas Constitution as more expansive than
that of the federal constitution); Lewis v. State, 448 S.W.3d 138, 147 (Tex. App. Houston
14th Dist. 2014, pet. ref’d.); Valdez v. State, 2014 Tex. App. Lexis 1375 at FN 2 (Tex. App. –
Waco February 6, 2014, pet. ref’d.) (mem. op. not design. for pub.) See the note from Chief
Justice Gray.
57
See Mason v. State, 416 S.W.3d 720, 728 n.10 (Tex. App.--Houston [14th Dist.] 2013, pet.
ref'd) "When the Court of Criminal Appeals has deliberately and unequivocally interpreted
the law in a criminal matter, we must adhere to its interpretation under the dictates of vertical
stare decisis." See also Lewis v. State, 448 S.W.3d 138, 146 (Tex. App. – Houston [14th
Dist.] 2014, pet. ref’d.).
58
See Ajisebutu v. State, 236 S.W.3d 309, 311 (Tex. App. – Houston [1st Dist.] 2007, pet.
ref’d). When both federal and state constitutional challenges to the punishment assessed have
been preserved, Texas Courts of Appeals have addressed these federal and state
constitutional provisions jointly. See Baldridge v. State, 77 S.W.3d 890, 893-94 (Tex. App.-
-Houston [14th Dist.] 2002, pet. ref'd) and Jackson v. State, 989 S.W.2d 842, 845 (Tex.
App.--Texarkana 1999, no pet.).
14
was in the statutory range of punishment. Generally, a sentence within the
statutory range of punishment for an offense will not be held cruel or unusual
under the Constitution of either Texas or the United States. 59 The length of a
criminal sentence is purely a matter of legislative prerogative. 60 Texas has long
held that punishments falling within the prescribed statutory limitations are not
cruel and unusual within the meaning of the Texas Constitution. 61
Further, the reasonableness of punishments assessed by juries and trial
courts in this State should not be questioned if they are within the range of
punishment prescribed by statute for the offense "unless they are so plainly
disproportionate to the offense as to shock the sense of humankind and thus
constitute cruel and unusual punishments prohibited by the United States and
Texas Constitutions." 62 Given the facts and circumstances of this case, along with
Appellant’s punishment being only a little over mid-range for the offense
committed, Appellant’s forty-year sentence cannot be considered cruel and/or
unusual in violation of either the Texas Constitution or the Eighth Amendment.
59
Ajisebutu at 314; Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983).
60
Harmelin v. Michigan, 501 U.S. 957, 962, 111 S. Ct. 2680, 2684, 115 L. Ed. 2d 836 (1991);
State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973).
61
See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Price v. State, 35 S.W.3d
136, 144 (Tex. App.--Waco 2000, pet. ref'd) (op. on reh'g); Moore v. State, 54 S.W.3d 529,
541 (Tex. App. Fort Worth 2001, pet. ref’d.).
62
See Hyde v. State, 723 S.W.2d 754, 755 (Tex. App.--Texarkana 1986, no pet.); see also
Hernandez v. State, No. B14-92-00704-CR, 1994 Tex. App. LEXIS 2182, at *17-18 (Tex.
App.--Houston [14th Dist.] Sept. 1, 1994, no pet.) (mem. op., not design. for pub.); Valdez v.
State, 2014 Tex. App. Lexis 1375 at FN 2 (Tex. App. – Waco February 6, 2014, pet. ref’d.)
(mem. op. not design. for pub.).
15
3. The Disproportionality Analysis
A narrow exception to the general rule that a sentence within the statutory
range is not cruel and unusual is when the sentence is found to be grossly
disproportionate to the offense.63 In such cases, the sentence violates the Eighth
Amendment's prohibition against cruel and unusual punishment. 64 Thus, a
prohibition against grossly disproportionate punishment survives under the Federal
Constitution apart from any consideration of whether the punishment assessed is
within the statute's range. 65 This is the third issue presented by Appellant. Having
settled Appellant is not entitled to any greater protection under the Texas
Constitution than the Eighth Amendment, and the forty-year sentence for
Aggravated Sexual Assault of a Child does not generally violate either the Texas
Constitution or the Eighth Amendment, the next question, is whether Appellant’s
sentence of forty years is grossly disproportionate.
a. The Threshold Comparison
The first step in a disproportionality analysis is a comparison of the
63
Sneed v. State, 406 S.W.3d 638, 643 (Tex. App. – Eastland 2013, no pet.); Harmelin v.
Michigan, 501 U.S. 957, 1004-05, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy J.
concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983);
Dale v. State, 170 S.W.3d 797 at 799 (Tex. App. – Fort Worth 2005, no pet.).
64
Sneed at 643; Solem, 463 U.S. at 290; Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex.
App.--Houston [1st Dist.] 1997, pet. ref'd).
65
Sneed at 643; Delacruz v. State, 167 S.W.3d 904, 906 (Tex. App.--Texarkana 2005, no pet.).
However, “outside the context of capital punishment, successful challenges to the
proportionality of particular sentences [will be] exceedingly rare.” Solem, 463 U.S. at 289-
90 (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980)).
16
seriousness of the offense against the severity of the sentence. In considering a
claim that a sentence is disproportionate, the appellate court must first make a
threshold comparison of the gravity of an appellant's offense against the severity of
his or her sentence.66 The court should consider the gravity of the offense in light
of the harm caused or threatened to the victim or society, and the culpability of the
offender. 67 Therefore, the Appellate Court is looking at two issues as it begins its
disproportionality analysis. The first is the offense itself. The second is the harm
already caused to the victim and the future risk of harm posed by the offender.
Only if a finding that the sentence is grossly disproportionate to the offense is
made, should the appellate court then compare the sentence received to sentences
imposed for similar crimes in Texas and for the same crime in other jurisdictions. 68
b. The Offense
Appellant pled guilty to intentionally or knowingly causing the sexual organ
of a child younger than 14 years old to contact or penetrate the mouth of Appellant
as charged in the indictment. 69 The offense of Sexual Assault of a Child is a
particularly troublesome offense insomuch as it not only physically affects the
child, but also can emotionally scar the child for life. “Certainly the great
66
Sneed at 643; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Dale, 170 S.W.3d at
799-800.
67
Solem, 463 U.S. at 292; Dale, 170 S.W.3d at 800.
68
Sneed at 643; McGruder, 954 F.2d at 316; Dale, 170 S.W.3d at 800.
69
(1 CR 4, 57-63) (5 RR 57) Appellant later testified during his revocation hearing that he pled
guilty to the charge because he was afraid of what might happen to him in prison and he
never hurt a child in his entire life (5 RR 82).
17
potentiality for mental, emotional, and physical scarring of a sexual assault victim
– a child of such tender years – cannot be seriously questioned. Short of murder,
we cannot envision a crime of greater infamy perpetrated against a child of such
tender years.”70
Punishments towards those convicted of sexually abusing children are
evolving towards harsher sentencing. 71 Additionally, the Texas Legislature has
taken various steps to demonstrate the extreme gravity with which aggravated
sexual assault on children is viewed. Aggravated Sexual Assault on a Child under
14 years of age is a first-degree felony regardless of whether any other violence is
present, and the offense is classified as a “3g” offense for purposes of parole. 72
70
Matthews v. State, 918 S.W.2d 666 (Tex. App. – Beaumont 1996 pet. ref’d.) Matthews
initially pleaded guilty to having vaginal intercourse with a female victim who was younger
than fourteen years old at the time of the offense.
71
Before the Supreme Court took the death penalty for child rape off the table, see Kennedy v.
Louisiana, 554 U.S. 407, 423 (U.S. 2008), Texas and five other states (Georgia, Oklahoma,
South Carolina, Montana and Louisiana) had provided the death penalty may be assessed in
cases involving the rape of a child. LA. REV. STAT. ANN. §14:42(D) (2) (a) (2005); GA.
CODE ANN. §16-6-1(b) (2005); MT CODE ANN. §45-5-503 (2007) (enacted 1997); OK
STAT. TIT. 10, §7115(K) (West 2007 Supp.); SC CODE ANN. §16-3-655(C) (1) (Supp.
2007) (enacted 2006). Texas had also indicated a desire to more seriously punish those who
sexually assault children by the passage of Texas Penal Code 12.42(c) (3), which made
certain aggravated sex offenses against children a capital offense. See Tex. Penal Code Ann.
§12.42(c) (3) (West Supp. 2007) (enacted 2007), and §22.021(a). See also Williamson v.
State, 175 S.W.3d 522, 525 (Tex. App. Texarkana 2005, no pet.).
72
See Tex. Gov't Code §508.145(d) (West 2014). See also Tex. Code Crim. Proc. Art. 42.12,
Sec. 3(g) (West 2014) and Tex. Gov't Code §508.046 (West 2014); Baletka v. State, 2005
Tex. App. LEXIS 1355, 5-6 (Tex. App. Beaumont, Feb. 16, 2005, no pet.) (mem. op. not
design. for pub.).
18
c. The Offender and His Victim
Appellant touched a six-year-old’s male sexual organ with his mouth. 73
Now, in his brief, Appellant goes on at great length to excuse his behavior due to
his own severe sexual victimization as a child and argues his culpability was
diminished by his disorders. Appellant further argues he is not “morally deserving
of punishment.”74
While the State is not unsympathetic to Appellant, of greater concern to the
State is the child victim in this case and the potential for future child victims, were
Appellant to be released from prison. The testimony of Appellant’s own witness,
Dr. Carter, is particular damning to Appellant’s cause. Dr. Carter was asked about
whether he knew if the victim in this case was developmentally slower than an
average child was:
“Q. When Mr. Oglesby looks at these children, they’re young and
their small. If I were to tell you that they were slower-
developing…developing children, would that surprise you as being
the victims in the cases?
A. No.
Q. And, Mr. Oglesby knowing that he’s not a fighter, or maybe he’s
not the most physically able individual, does that make sense to you
that he chose these victims?
“A. Right. That would be who he could relate to emotionally and he
doesn’t have the sophistication to pull somebody into victimization
(sic) that might be older. So it makes sense that he would turn to
younger children.
73
(3 RR 78). The victim was described by Lt. Fueston as five years old. The victim was also
described as a six-year-old by Dr. Carter (2 RR 35).
74
See Appellant’s Brief at pages 1–3, 22, 23.
19
“Q. And he’s also physically stronger than those individuals?
A. Right.”75
The individual in the best position to forecast Appellant’s future behavior
finds Appellant someone who is physically and developmentally weak, did prey
and is likely to continue to prey, on victims who were physically and
developmentally weak as well. Not only is he likely to prey on children, but on
those children who are most vulnerable.
Moments later, Dr. Carter delivered the knockout blow to Appellant’s cause:
“Q. Because in your opinion, Doctor, he has a high risk of
reoffending?
A. Yes.
Q. With the same type of victims that he’s gone after before?
A. Yes.
Q. Would you agree that the best option in this case is confinement?
A. Yes.” 76
The gravity of the offense should also be judged in light of the harm caused
or threatened to the victim or society and the culpability of the offender. 77
Here, Dr. Carter left no doubt as to the future dangerousness of Appellant.
Appellant’s sentence is not grossly disproportionate to the offense.
75
(2 RR 35, 36).
76
(2 RR 36, 37).
77
See Alvarez v. State, 63 S.W.3d 578, 581 (Tex. App. – Fort Worth 2001 no pet.) “Appellant
admitted to committing Aggravated Sexual Assault of a Child by intentionally causing his
penis to contact the sexual organ of his five- year-old daughter. Given the nature of the
offense, Appellant's relationship to the child victim, and his wife's testimony that Appellant
would have continued access to his daughter should he be released from custody, we cannot
conclude his fifty-five-year sentence is grossly disproportionate to the offense.” See also
Moore v. State, 54 S.W.3d 529, 542 (Tex. App.--Fort Worth 2001, pet. refused).
20
d. Appellant Fails to Make it Past the Disproportionality
Threshold
Since Appellant has failed to show his sentence is grossly disproportionate
to the offense, this Court does not need to consider the other Solem factors. 78
However, out of an abundance of caution, the State will discuss whether these
other factors would provide Appellant any relief.
e. The Other Solem Factors
The other Solem factors, as previously discussed, are: (1) The sentences
imposed on other criminals in the same jurisdiction; and (2) The sentences
imposed for commission of the same crime in other jurisdictions. 79
Appellant has not provided any evidence of comparative sentencing either in
this jurisdiction or in other jurisdictions. 80 However, other Texas courts have
found similar sentences not disproportionate. 81
In Holt v. State, Holt pled guilty to two counts of Aggravated Sexual Assault
of a Child under fourteen. Holt's father testified that Holt should be "locked up in
a facility where he can get the help he needs" and that he "by no means" wanted
Holt to "walk out of here.” Similarly, Dr. Kantz, a sex offender treatment provider,
78
See Winchester v. State, 246 S.W.3d 386, 389 (Tex. App. – Amarillo, 2008, pet. ref’d).
79
See Id.
80
See Williamson v. State, 175 S.W.3d 522, 525 (Tex. App. – Texarkana 2005, no pet.)
81
Considering that Appellant has not provided any evidence of comparative sentencing and
several Texas courts have found similar sentences not disproportionate, the State does not
believe that any purpose would be served in examining other states’ sentences for
Aggravated Sexual Assault of a Child.
21
recognized Holt "should never be in the vicinity of children.” The Fort Worth
Court found a fifty-year sentence on each count was within the permissible range
of sentencing and not disproportionate.82
The Fort Worth Court also found a fifty-five-year sentence was not
disproportionate in another Aggravated Sexual Assault of a Child case. The Court
considered the offense, the relationship of the defendant to the victim (his five-year
old-daughter) and the fact that the defendant would have had continued access to
his daughter should he be released from custody. 83
The Houston Court of Appeals for the Fourteenth District found a forty-five-
year sentence for Aggravated Sexual Assault of a Child was not disproportionate.
The Court first noted the Texas Legislature has determined the first-degree felony
of Aggravated Sexual Assault of a Child less than fourteen years of age is
punishable by imprisonment for life, or by imprisonment for five to ninety-nine
years. The Court further noted this legislative policy determination is entitled to
wide deference. 84
82
Holt v. State, 2007 Tex. App. LEXIS 3627 (Tex. App. Fort Worth, May 10, 2007, no pet.)
(mem. op. not design. for pub.).
83
Alvarez v. State, 63 S.W.3d 578, 581 (Tex. App. Fort Worth 2001, no pet.).
84
Muzquiz v. State, 2015 Tex. App. LEXIS 960 (Tex. App. Houston 14th Dist. Feb. 3, 2015, no
pet, hist.) (mem. op. not design. for pub.), Harmelin v. Michigan, 501 U.S. 957, 998, 111 S.
Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J. concurring) (plurality opinion); see also,
Holder v. State, 643 S.W.2d 718, 721 (Tex. Crim. App. 1982) multiple life sentences
resulting from convictions in three incidents of aggravated sexual abuse did not violate the
Eighth Amendment; Arriaga v. State, 335 S.W.3d 331, 336 (Tex. App.—Houston [14th
22
The Houston 14th Court of Appeals, in another case, found the trial court's
sentence of life imprisonment was not grossly disproportionate to the appellant's
commission of Aggravated Sexual Assault of a Child less than fourteen years of
age, the crime to which Appellant pleaded guilty. 85
This Honorable Court found a life sentence for an aggravated sexual assault
of a six-year-old was not disproportionate. This Court noted the defendant
“attempted to shift the blame for his penetration of a six-year-old onto the child
and her alleged promiscuity. That the child was six and that every adult should
know that one does not have sex with a six-year-old merited no comment by him,
however. Yet, it does illustrate the depravity of his crime and mind set.”86
The Beaumont court found two concurrent terms of life imprisonment on
two counts of Aggravated Sexual Assault of a Child not grossly disproportionate.87
The Waco Court found punishment of forty years' imprisonment for
Dist.] 2010, pet. ref'd) a life sentence for Aggravated Sexual Assault of a Child did not
violate the Eighth Amendment.
85
Arriaga v. State, 335 S.W.3d 331, 336 (Tex. App. Houston 14th Dist. 2010, pet. ref’d.);see
also Williams v. State, No. 12-01-00311-CR, 2003 Tex. App. LEXIS 3328, 2003 WL
1883474, at *5 (Tex. App.--Tyler Apr. 16, 2003, no pet.) (mem. op., not design. for pub.) An
enhanced 99-year sentence for sexual assault of a child not grossly disproportionate
punishment because the crime was a "serious" one with the potential for causing "severe
emotional harm" to the child.
86
Loomis v. State, 2007 Tex. App. LEXIS 82 (Tex. App. Amarillo Jan. 8, 2007, no pet.) (mem.
op. not design. for pub.).
87
Baletka v. State, 2005 Tex. App. LEXIS 1355 at *6, 7 and 8 (Tex. App. Beaumont Jan. 26,
2005, no pet.) (mem. op. not design. for pub.) The Court noted the defendant was the
stepfather and the victim suffered psychological problems after two assaults within two days.
23
Aggravated Sexual Assault of a Child falls within the statutory range. 88
Comparing the gravity of the offense against the severity of the sentence and
further considering the record in this case, and specifically the testimony of
Appellant’s own expert, Appellant’s forty-year sentence is not grossly
disproportionate to the offense. 89
4. Appellant’s Mental Illness
Appellant goes to great lengths in arguing his mental illness should be
considered in determining whether his sentence is grossly disproportionate.
Appellant spends a significant portion of his brief arguing about the
incarceration of the mentally ill. Appellant then posits the question whether
mentally ill individuals held criminally responsible must be incarcerated for a
much longer period than is necessary, although the individual is no longer a danger
based on the current standards of medical care. 90 However, this is a false premise,
at least as applied to Appellant. As previously noted, Dr. Carter repeated that
Appellant was at high risk to re-offend and even in thirty years would still be
88
Flowers v. State, 2007 Tex. App. LEXIS 301 (Tex. App. Waco Jan. 17, 2007, no pet.) (mem.
op. not design. for pub.).
89
See Moore, 54 S.W.3d at 542; see also Solem, 463 U.S. at 290-91, 103 S. Ct. at 3010; and
McGruder, 954 F.2d at 316. Because we have concluded that the imposed sentence is not
grossly disproportionate to the charged offense, we need not address the second and third
prongs of the Solem analysis. See TEX. R. APP. P. 47.1, 47.4; see also Solem, 463 U.S. at 291-
92, 103 S. Ct. at 3010; McGruder, 954 F.2d at 316; Davis v. State, 119 S.W.3d 359, 364
(Tex. App.--Waco 2003, pet. ref'd); Valdez at *14.
90
See Appellant’s Brief page 13.
24
sexually disturbed and even deviant. 91 The State asks this Court to consider the
following exchange between Dr. Carter and Appellant’s trial counsel:
“Q. Dr. Carter, in your analysis and observations of Mr. Oglesby,
the options available to the Court in these circumstances after his plea
of guilty to this offense to place him on probation or incarcerate him,
given his mental health and mental health issues and need for services,
do you believe that prison is the only place that can address those
mental health needs?
A. Unfortunately, so.” 92
The State is mindful of the plight of the mentally ill behind bars. However,
the State respectfully suggests the proper forum to address this issue is in the
Legislature. At least concerning Appellant, given the available options and the risk
he poses to children, he is where he needs to be. Further, Appellant does not cite
any binding authority that punishment can be considered excessive in light of his
mental illness. 93 Appellant concludes his Brief arguing Appellant requires
94
treatment and not a forty-year sentence. Yet, Appellant’s own expert
acknowledged there was not a high probability for success. 95
91
(2 RR 34)
92
(2 RR 22) Dr. Carter went on to testify that if a group home were available, that would be a
better option.
93
See Valdez v. State, 2014 Tex. App. Lexis 1375 at FN 2 (Tex. App. – Waco, February 6,
2014, pet. ref’d.) (mem. op. not design. for pub.). The Waco Court went on to find the
sentence given to Valdez was not shocking so as to be considered cruel and unusual given
Valdez’ own expert, Dr. William Carter, testified that confinement in prison was probably
necessary. The Waco Court also noted, at *11, Valdez did not provide any tangible evidence
demonstrating that the current state of the Texas prison system is ill equipped to address
Valdez’ mental health issues.
94
See Appellant’s Brief at page 24.
95
(2 RR 18).
25
5. Mental Illness and Proportionality
Appellant’s final argument compared a recent Supreme Court ruling in
Miller v. Alabama that found children as constitutionally different from adults for
purposes of sentencing, to individuals like Appellant, with some form of mental
illness. 96 He argues the Supreme Court’s reasoning concerning the “three
significant gaps” between children and adults is equally applicable to Appellant.
Appellant casts Dr. Carter’s testimony in a light supportive of this argument. 97
The State disagrees with this characterization. Appellant’s level of
culpability was not directly addressed. Dr. Carter did address Appellant’s lack of
insight and border line intellectual function but did not correlate those symptoms
with a particular level of culpability. 98 This does not mean, however, the Court did
not consider Appellant’s personal culpability in assessing the sentence.
Further, the key issue in Miller is the age of the offender. Miller discusses
the “distinctive attributes of youth” and that “youth matters” as well as a “child's
capacity for change.” 99 Appellant, unlike a child, does not have the capacity to
change.
In any event, Appellant cites no authority extending Miller’s reasoning to
96
See Appellant’s Brief pages 20 -23 quoting from Miller v. Alabama, 132 S. Ct. 2455, 2463
(2012).
97
Id at pages 21, 22.
98
(2 RR 18, 23, 44) Dr. Carter testified Appellant’s intelligence scores placed him at
borderline intellectual functioning, which means he’s not mentally retarded, but not normal.
99
See Miller v. Alabama, 132 S. Ct. 2455, 2466 (2012).
26
those with some form of mental illness. The Texas Court of Criminal Appeals has
found the holding in Miller was very narrow and refused to extend it in the case of
a juvenile who received a mandatory sentence that included the chance for
parole.100 The Court's holdings in Miller and Graham v. Florida were narrowly
tailored to address mandatory sentences of life imprisonment without the
possibility of parole for juveniles. 101 Appellant is an adult offender convicted of
Aggravated Sexual Assault of a Child, and Miller’s holding is limited to
juveniles. 102 Neither Miller nor Graham have any application here, except insofar
as Graham discusses “Incapacitation” as one of the four goals of penal sanctions
which have been recognized as legitimate. 103 Given Dr. Carter’s testimony, the
State argues the only sure way to guarantee Appellant will not victimize another
child is to keep him right where he is.
100
See Lewis v. State, 428 S.W.3d 860, 863-64 (Tex. Crim. App. 2014) and Lewis v. State, 448
S.W.3d 138, 146 (Tex. App. – Houston [14th Dist.], pet. ref’d.).
101
Teinert v. State, 2014 Tex. App. LEXIS 1478 (Tex. App. Houston 1st Dist. Feb. 11, 2014, no
pet.) (mem. op. not design. for pub.). See Miller, 132 S. Ct. at 2464-66, 2469; Graham v.
Florida, 560 U.S. at 68-79, 130 S. Ct. at 2026-32.
102
Sloan v. State, 418 S.W.3d 884, 892 (Tex. App. Houston 14th Dist. 2013) pet ref’d.; Stiner
v. State, 2015 Tex. App. LEXIS 1119 at *7 (Tex. App. Houston 14th Dist., Feb. 5, 2015, pet.
ref’d.) (mem. op. not design. for pub.). Refusing to extend the “spirit of Miller” in finding an
automatic sentence of life without parole is not unconstitutional when assessed against an
adult offender convicted of capital murder.
103
See Graham at 2028. The four legitimate goals of penal sanctions are: retribution,
deterrence, incapacitation, and rehabilitation." A sentence lacking any legitimate penological
justification is, by its nature, disproportionate to the offense." Ibid. quoted by Meadoux v.
State, 325 S.W.3d 189, 195 (Tex. Crim. App. 2010).
27
D. Conclusion
Appellant’s sentence falls well within the statutory range of punishment for
Aggravated Sexual Assault of a Child. The sentence is not disproportionate under
either the Texas or the United States Constitutions.
Trial Courts have discretion in fashioning an appropriate sentence
considering the crime, defendant, victim and society. Reviewing courts should
grant substantial deference to the discretion of trial courts in imposing sentences.104
The Texas Legislature has provided a severe punishment for those who would
sexually prey on children for a reason. Such a punishment should not be viewed
from the perspective of the one who preyed on the child, but from the perspective
of the child, who has forever lost their innocence.
The State respectfully asks this Court to uphold both the conviction and the
sentence.
104
Eiland v. State, 993 S.W.2d 215, 216 (Tex. App.-San Antonio 1999, no pet.).
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PRAYER FOR RELIEF
Wherefore, Premises Considered, the State of Texas prays this Court, in all
things, affirm the judgment of the Trial Court.
Respectfully Submitted,
/s/ Charles Karakashian, Jr.
Charles Karakashian, Jr.
Special Prosecutor
52nd Judicial District
State Bar No. 11095700
P. O. Box 919
Gatesville, Texas 76528-0919
254-865-5911 x 2267
254-865-5147 - (fax)
ckarakashian@aol.com
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Certificate of Service
By my signature affixed above, I, Charles Karakashian, Jr., certify that on
July 22, 2015, a true and correct copy of the foregoing State’s Brief was delivered
to Mr. Stan Schwieger, attorney of record for Appellant, by electronic mail through
the required e-filing service at wacocrimatty@yahoo.com.
Certificate of Compliance
By my signature affixed above, I, Charles Karakashian, Jr., certify that the
foregoing Brief complies with the requirements of Tex. R. App. P. and, according
to Microsoft Word 2010 in which it was created, contains 7153 words, beginning
at the words “Statement of Facts” in the heading of that section, and concluding
with the final word in the Prayer in accordance with Rule 9.4(i) (1).
30