Roy Glover v. State , 406 S.W.3d 343 ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-11-00392-CR
________________________
ROY GLOVER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 62,756-A, Honorable Dan Schaap, Presiding
June 27, 2013
OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Following a plea of not guilty, Appellant, Roy Glover, was convicted by a jury of
continuous sexual abuse of a child younger than fourteen years of age. 1 He was
sentenced to sixty years confinement without the possibility of parole. 2 In attacking his
1
See TEX. PENAL CODE ANN. § 21.02(b) (W EST SUPP. 2012).
2
See TEX. GOV’T CODE ANN. § 508.145(a) (W EST 2012) (providing that “[a]n inmate . . . serving a sentence
for an offense under Section 21.02, Penal Code, . . . is not eligible for release on parole”).
sentence, Appellant presents two issues: (1) does the Eighth Amendment categorically
bar a sentence for continuous sexual abuse of a child where there is no possibility for
parole, and (2) for victims of child sexual assault who themselves commit sexual assault
offenses on children, does the Eighth Amendment prohibit imposition of a life sentence
with no realistic opportunity to obtain release before the end of that term, in the same
way the Eighth Amendment prohibits such a sentence for juvenile offenders who did not
commit homicide? We affirm.
BACKGROUND
Appellant does not contest the legal sufficiency of the evidence to support his
conviction. He merely requests a new sentencing hearing. Thus, only the facts
necessary for disposition of his issues will be discussed.
Appellant, thirty-seven years old at the time pretrial proceedings commenced in
March 2011, sexually assaulted his daughter from the time she was ten years old until
she was thirteen. Eventually, she confided in her friends who in turn confided in their
school counselor. She later made an outcry of the abuse to her counselor. The
evidence showed that Appellant threatened to kill her, held a knife to her throat, and
threatened to kill everyone in the house while they slept if she ever reported the abuse.
The victim testified she was sexually assaulted too many times to keep count.
During the punishment phase of the trial, Appellant waived his right to keep his
medical information confidential and his doctor, Dr. Steven Schneider, a psychologist,
2
testified on his behalf. 3 According to Dr. Schneider, Appellant’s father was a “very strict”
disciplinarian, to the point of being abusive. Additionally, Appellant was sexually
abused by his mother from the time he was three until about age six or seven. His
parents eventually divorced and he was raised by his mother.
Although of normal intelligence, Appellant did not have any academic assistance
at home and he dropped out of school in ninth grade. He grew up in a very
dysfunctional family and during his adolescence, associated with much older
individuals, while at the same time he engaged in drug use and drug trafficking. He was
also treated for suicidal threats when he was younger. Dr. Schneider concluded his
direct examination by testifying that he diagnosed Appellant with incestuous pedophilia,
depression and adjustment issues. His testimony described Appellant as a
“polysubstance abuser” and summarized his overall life experience as a “sad situation.”
During cross-examination by the State, Dr. Schneider acknowledged that
Appellant had an awareness of his conduct and demonstrated a pattern of offending
against his daughter, then apologizing for his behavior. He opined that Appellant’s
minimal emotional connection with others would present an obstacle to treatment for
pedophilia.
ANALYSIS
By his first issue, Appellant questions whether the Eighth Amendment
categorically bars his sixty year sentence for continuous sexual abuse of a child where
3
Dr. Schneider explained that in his analysis of a patient, information provided by the patient is meant to
be self-serving and he takes that into account in his evaluation.
3
there is no possibility for parole. Essentially, he contends the legislatively adopted
sentencing scheme violates the Eighth Amendment because his sentence, considering
the unavailability of parole, is a more severe sentence than a similar sentence would be
if he had murdered the victim instead of sexually abusing her. He reasons that because
parole is available to someone convicted of murder of a child, and because the United
States Supreme Court has declared that murder is a more outrageous offense than
sexual assault, the lack of any possibility of parole in the continuous sexual assault
sentencing scheme amounts to cruel and unusual punishment. By his second issue, he
urges that victims of sexual abuse who themselves become sexual abusers should be
accorded the same status as juveniles who cannot be assessed a sentence which
denies them any reasonable expectation of release during their lifetime. We will
address Appellant’s two issues separately because we answer Appellant’s first issue in
the negative and we find his second issue does not present a justiciable controversy,
EIGHTH AMENDMENT
Appellant contends that the unavailability of parole for the offense of continuous
sexual assault of a child violates the Eighth Amendment’s prohibition against cruel and
unusual punishment because it categorically denies parole eligibility to an entire class of
offenders – to wit: persons who have committed the offense of continuous sexual
assault. Relying on Graham v. Florida, 560 U.S. __, 130 S. Ct. 2011, 2021, 176 L. Ed. 2d
825 (2010), Appellant reasons that because the United States Supreme Court has
previously determined that sexual assault “does not compare to murder,” Coker v.
Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the categorical
denial of parole eligibility “to an entire class of offenders” in the non-homicide case of
4
continuous sexual assault of a child is disproportionate to any similar sentence that
could be imposed for the more serious homicide offense of murder of a child, where the
offender would be eligible for parole. 4
Continuous sexual abuse of a child is a first degree felony with a special range of
punishment of imprisonment for life, or for any term of not more than 99 years or less
than 25 years. TEX. PENAL CODE ANN. § 21.02(h) (W EST SUPP. 2012). A person serving
a sentence for that offense is not eligible for release on parole. TEX. GOV’T CODE ANN. §
508.145(a) (W EST 2012). By contrast, the murder of a child is a first degree felony with
a range of punishment of imprisonment for life or for any term of not more than 99 years
or less than 5 years, and by a fine not to exceed $10,000. TEX. PENAL CODE ANN. §
12.32 (W EST 2011). A person serving a sentence for murder is eligible for release on
parole. TEX. GOV’T CODE ANN. § 508.145(f) (WEST 2012).
Appellant reasons that because someone convicted of murder of a child could
receive a sentence of sixty years with the possibility of parole, the imposition of his
sentence of sixty years without the possibility of parole is disproportionate to his crime.
We disagree with Appellant’s argument.
The Eighth Amendment to the United States Constitution provides, “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST. amend VIII. That provision is applicable to the
States through the Fourteenth Amendment. Furman v. Georgia, 408 U.S. 238, 239, 33
4
Appellant does recognize in his argument that the murder of a child under 10 years of age can be a
capital offense, thereby rendering parole unavailable. TEX. PENAL CODE ANN. § 19.03(a)(8) (W EST SUPP.
2012) and TEX. GOV’T CODE ANN. § 508.145(a) (W EST 2012). Here, the victim contends that the
continuous sexual assault occurred when she was between ten and thirteen years of age.
5
L. Ed. 2d 346, 92 S. Ct. 2726 (1972) (per curiam). The prohibition of cruel and unusual
punishment “guarantees individuals the right not to be subjected to excessive
sanctions.” Miller v. Alabama, 567 U.S. __, 132 S. Ct. 2455, 2463, 183 L. Ed. 2d 407
(2012) (citing Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, 161 L. Ed. 2d 1
(2005)). The right to be free from excessive punishment flows from the basic “precept
of justice that punishment for crime should be graduated and proportioned” to both the
offender and the offense. Roper, 543 U.S. at 560 (quoting Atkins v. Virginia, 536 U.S.
304, 311, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)).
The constitutionality of a given punishment scheme cannot, however, be
determined by simply comparing the punishment schemes applicable to two or more
offenses for purposes of making a “proportionality review.” In fact, the United States
Supreme Court has held that the Eighth Amendment does not contain a proportionality
guarantee in non-death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 965,
111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (upholding mandatory sentence of life without
the possibility of parole in a drug possession case). In Harmerlin, the Supreme Court
found that while mandatory penalties may be both severe and cruel, they certainly are
not unusual in a constitutional sense. Accordingly, a sentence for a non-capital offense
which is subject to a mandatory provision providing for the unavailability of parole is not
per se unconstitutional.
A narrow proportionality principle applicable to non-capital cases has, however,
evolved as it pertains to the “categorical” application of a punishment scheme to “an
entire class of offenders.” In Graham, the United States Supreme Court held that a
6
sentence of life without the possibility of parole is constitutionally infirm when
categorically applied to juveniles in non-homicide offenses.
When analyzing similar “categorical” challenges to statutory punishment
schemes in Texas, the Court of Criminal Appeals has interpreted Graham as requiring
the consideration of four factors: (1) whether there is a national consensus against
imposing the particular punishment at issue; (2) the moral culpability of the offenders at
issue in light of their crimes and characteristics; (3) the severity of the punishment; and
(4) whether the punishment serves legitimate penological goals. Meadoux v. State, 325
S.W.3d 189, 194 (Tex.Crim.App. 2010) (relying upon Graham v. Florida, 130 S. Ct. at
2022 & 2026).
I. NATIONAL CONSENSUS
The best evidence of a national consensus with respect to the appropriateness of
the punishment assessed for a particular offense is the legislation enacted by the
nation’s legislatures. Meadoux, 325 S.W.3d at 194 (citing Atkins, 536 U.S. at 312).
“Actual sentencing practices are an important part of the Court’s inquiry into
consensus.” Graham, 130 S. Ct. at 2023.
In Dixon v. State, 201 S.W.3d 731 (Tex.Crim.App. 2006), Judge Cochran, in her
concurring opinion, implored the Texas Legislature to enact a new penal statute that
focused on a continuing course of conduct involved in a sexually abusive relationship
between a young child and a trusted authority figure. It was a call to action to
accommodate the “prosecution of generic, undifferentiated, ongoing acts of sexual
abuse of young children” in a penal system intended to prosecute a person who
7
commits “one discrete criminal offense at one discrete moment in time.” Id. at 737. She
noted, “[t]his scenario plays itself out in Texas courtrooms every day.” The national
consensus, as reflected by the Legislature’s response to this call for legislation to
address the continuous sexual abuse of a child, resulted in enactment of section 21.02
of the Penal Code and amendment to the “no parole” provision contained in section
508.145(a) of the Texas Government Code. 5 Therefore, we believe the national
consensus factor weighs in favor of the constitutionality of a no parole sentencing
scheme for the offense of continuous sexual abuse of a child.
II. MORAL CULPABILITY
Regarding moral culpability, Graham recognized that there is a moral line
between murder and other serious violent offenses against an individual. 130 S. Ct. at
2027. Defendants who kill are categorically more deserving of the most serious forms
of punishment than are defendants who do not kill, intend to kill or foresee that life will
be taken. Id. Graham involved a juvenile who was charged as an adult in an armed
robbery that did not result in a homicide. The Court recognized that a juvenile’s
transgression “is not as morally reprehensible as that of an adult” because a juvenile
lacks maturity and has an underdeveloped sense of responsibility. 130 S. Ct. at 2026.
Similarly, in Atkins, the Supreme Court concluded that, in light of “evolving standards of
decency,” the death penalty was cruel and unusual punishment for mentally challenged
defendants because their disabilities prevented them from acting with the level of moral
culpability that characterizes the most serious adult criminal conduct. 536 U.S. at 321.
5
See Act of May 18, 2007, 80th Leg., R.S., ch. 593, § 1.17, 2007 Tex. Gen. Laws 1120, 1127. See also
Act of May 18, 2007, 80th Leg., R.S., ch. 593, § 1.10, 2007 Tex. Gen. Laws 1120, 1124.
8
Likewise, imposition of the death penalty for rape has been found to be
unconstitutional. In Coker, the Supreme Court recognized that rape of an adult woman
is “without a doubt deserving of serious punishment; but in terms of moral depravity and
of the injury to the person and to the public, it does not compare with murder . . . .” 6 433
U.S. at 598. More than three decades later, the Supreme Court held in Kennedy v.
Louisiana, 554 U.S. 407, 421, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008), that the Eighth
Amendment barred imposition of the death penalty for the rape of a child where the
crime did not result, and was not intended to result, in the death of the child.
While the national consensus is that the death penalty is not appropriate for a
sexually related non-homicide offense; the mere fact that a sentence may be subject to
no possibility of parole does not offend the Eighth Amendment. See Harmelin, 501 U.S.
at 994-96. See also Duran v. State, 363 S.W.3d 719, 722-23 (Tex.App.—Houston [1st
Dist.] 2011, pet. ref’d). Accordingly, considering the nature of the offense, the
vulnerability of the victims, and the repetitive nature of the offense, we believe the moral
culpability factor weighs in favor of the constitutionality of a no parole sentencing
scheme for the offense of continuous sexual abuse of a child.
6
The Court wrote:
[w]e do not discount the seriousness of rape as a crime. It is highly reprehensible, both
in a moral sense and in its almost total contempt for the personal integrity and autonomy
of the female victim . . . . Short of homicide, it is the “ultimate violation of self.” It is also a
violent crime . . . .
Coker, 433 U.S. at 597.
9
III. SEVERITY OF THE PUNISHMENT
A lengthy term of years without the possibility of parole is a severe penalty. 7 In
this case, Appellant contends that his sentence is made even more severe by the fact
that his sentence is “in all probability” a life sentence. Regardless of whether his
sentence is equivalent to a sentence of life without the possibility of parole, the
sentence in question is certainly a severe sentence, arguably weighing in favor of the
unconstitutionality of this particular sentencing scheme as applied to Appellant.
IV. PENOLOGICAL GOALS
Four legitimate goals of penal sanctions are retribution, deterrence,
incapacitation and rehabilitation. Ewing v. California, 538 U.S. 11, 25, 123 S. Ct. 1179,
155 L. Ed. 2d 108 (2003). “A sentence lacking any legitimate penological justification is
by its nature disproportionate to the offense.” Graham, 130 S. Ct. at 2028.
In part, section 21.02 of the Texas Penal Code was enacted to protect children
from continuous acts of sexual abuse. As an analogy, a recidivist statute such as
section 12.42 of the Texas Penal Code is intended to hold a perpetrator accountable for
continuously breaking the law. See Simpson v. State, 668 S.W.2d 915, 919
(Tex.App.—Houston [1st Dist.] 1984, no pet.). Recidivist statutes were enacted to
protect citizens against habitual offenders. Id. Similarly, the Legislature’s decision to
deny parole to persons convicted of continuous sexual abuse of a child protects child
victims against continuous sexual attacks. A punishment scheme does not offend the
7
The most severe and unique punishment is death, the second most severe is life imprisonment without
the possibility of parole and life imprisonment with the possibility of parole is the third most severe form of
punishment. Harmelin, 501 U.S. at 996.
10
Eighth Amendment simply because “the classification is not made with mathematical
nicety or because in practice it results in some inequality.” Martin v. State, 335 S.W.3d
867, 879 (Tex.App.—Austin 2011, pet. ref’d) (citing Dandridge v. Williams, 397 U.S.
471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970)).
As a general rule, murder results from a single, impulsive act, and except for
serial killers, murderers tend not to reoffend. On the other hand, pedophiles and sexual
predators tend to repeat their offenses. Accordingly, the penological interests of both
deterrence and incapacitation are served by the sentencing scheme in question.
Having weighed all four factors, we cannot say that a sentencing scheme which
categorically denies that availability of parole to offenders who have committed the
offense of continuous sexual abuse is constitutionally infirm. Appellant’s first issue is
overruled.
JUSTICIABLE CONTROVERSY
By his second issue, Appellant urges this Court to consider his abusive childhood
under the same standards applied to juveniles of non-homicide offenses and hold that
the Eighth Amendment prohibits a sentence of life without parole in a non-homicide
case where the offender has been sexually abused. Essentially, Appellant asks this
court to equate his status as an abused offender to that of a juvenile. See generally
Graham, 130 S.Ct at 2034 (holding that the Eighth Amendment prohibits the imposition
of a sentence of life without parole on a juvenile offender convicted of a non-homicide
offense). We find that Appellant’s claim does not present a justiciable controversy.
11
In order to address an issue on appeal, an appellate court must be presented
with a justiciable controversy. A justiciable controversy is a real and substantial
controversy which is appropriate for judicial determination, as distinguished from a
dispute which is hypothetical or abstract in character. In that regard, courts generally
lack judicial authority to answer abstract questions of law or to consider issues raised by
persons who have not suffered the complained of injury. Fuller v. State, 829 S.W.2d
191, 201 (Tex.Crim.App. 1992). In Fuller, the Court of Criminal Appeals held that “it is a
fundamental rule of law that only the person whose primary legal right has been
breached may seek redress for an injury” and “[o]ne who has not suffered an invasion of
a legal right does not have standing to bring suit.” Id. at 201-202 (quoting Nobles v.
Marcus, 533 S.W.2d 923, 927 (Tex. 1976) and Sherry Lane Nat’l Bank v. Bank of
Evergreen, 715 S.W.2d 148, 152 (Tex.App.—Dallas 1986, writ ref’d n.r.e.) respectively).
Consequently, the issue of standing has been considered to be a “constituent
requirement of justiciability, the basic posture in which a controversy must appear to be
cognizable by the courts.” Id. at 201. Because a justiciable controversy does not exist
where standing does not exist, judicial review is improper unless essential to the
resolution of an actual case or controversy. Id.
Here, Appellant was not sentenced to life without parole. Because Appellant
seeks to have this Court consider the constitutionality of a sentence he did not receive,
we believe Appellant’s second issue fails to present a justiciable controversy.
Accordingly, Appellant’s second issue is overruled.
12
CONCLUSION
Having overruled Appellant’s issues, the trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Publish.
13