                                                                                                ACCEPTED
                                                                                            06-14-00193-CR
                                                                                 SIXTH COURT OF APPEALS
                                                                                       TEXARKANA, TEXAS
                                                                                       4/23/2015 5:20:55 PM
                                                                                           DEBBIE AUTREY
                                                                                                     CLERK

                              No. 06-14-00193-CR
______________________________________________________________________________
                                                                  FILED IN
                     IN THE SIXTH COURT OF APPEALS         6th COURT OF APPEALS
                           TEXARKANA, TEXAS                  TEXARKANA, TEXAS
                                                           4/24/2015 9:05:00 AM
                                                               DEBBIE AUTREY
______________________________________________________________________________
                                                                   Clerk
                                JAMES OLSEN
                                  Appellant,

                                        v.

                            THE STATE OF TEXAS

                                   Appellee.
______________________________________________________________________________

                     Appealed from the 71st District Court of
                            Harrison County, Texas
                           Trial Cause No 13-0351X

______________________________________________________________________________

                             APPELLEE’S BRIEF

______________________________________________________________________________

                                             Timothy J. Cariker
                                             Assistant District Attorney
                                             State Bar No. 24009942
                                             Harrison County District Attorney’s Office
                                             200 West Houston Street
                                             Marshall, Texas 75670
                                             Telephone: 903-935-8408

                                             ATTORNEY FOR APPELLEE
                                             STATE OF TEXAS
                          IDENTITY OF PARTIES AND COUNSEL

      Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.

1.     Presiding Judge:        Honorable Brad Morin
                               71st Judicial District
                               Marshall, Texas 75670

2.     Appellant:      James Olsen

3.     Appellant’s Counsel :                   Clement Dunn
                                               Attorney at Law
                                               140 E Tyler Street, Suite 240
                                               Longview, TX 75601

4.     State’s Counsel (at trial):             Colleen Clark and Shawn Connally
                                               Harrison County District Attorney
                                               200 West Houston Street
                                               Marshall, Texas 75670


5.     State’s Counsel (on appeal):            Timothy J. Cariker
                                               Assistant District Attorney
                                               Coke Solomon
                                               District Attorney
                                               Harrison County District Attorney
                                               200 West Houston Street
                                               Marshall, Texas 75670




                                                   i
                                                    TABLE OF CONTENTS

Identity of Parties and Counsel ........................................................................................................i

Table of Contents ............................................................................................................................ii

Index of Authorities ........................................................................................................................1

Statement of the Case ......................................................................................................................2

Issues Presented……………………………………………………………………………………3

Statement of Facts............................................................................................................................4

Summary of Argument......................................................................................................................5

Argument and Authorities

           I).        THE SENTENCE DOES NOT VIOLATE THE EIGTH AMENDMENT TO
                      THE UNITED STATES CONSTITUTION…...…………………..………………6



           II).       THE TRIAL COURT DID NOT VIOLATE THE APPELLANT’S RIGHT
                      AGAINST SELF INCRIMINATION, NOR DID IT PUNISH APELLANT
                      BASED ON ANY PERCIEVED STATUS ……………………………...………..10


Prayer for Relief.............................................................................................................................12

Certificate of Compliance..............................................................................................................12


Certificate of Service.....................................................................................................................13




                                                                       ii
INDEX OF AUTHORITIES

United States Supreme Court

Harmelin v. Michigan, 501 U.S. 957 (1991). ……………………………………………………7

Robinson v. California, 370 U.S. 660 (1962) ..…………………………………………………10

Rummel v. Estelle, 446 U.S. 263, 100 S. Ct. 1133, 63 L.Ed 2d 382 (1980)….…………………..6

Solem v. Helm, 463 U.S. 277 (1983) …………………………………………………………...6,7

Trop v. Dulles, 356 U.S. 86 (1958). ……………………………………………………………...6

Weems v. United States, 217 U.S. 349 (1910)…………………………………………………...6



United States Court of Appeals

McGruder v. Puckett, 954 F. 2d 313 (5th Cir. 1992)……………………………………………....7



Texas Court of Criminal Appeals

McNew v. State, 608 S.W. 2d 166 (Tex. Crim. App. 1978).…………………………...………....6



Texas Court of Appeals

Hardwell v. State, 2005 WL 2403437, (Tex. App, - Dallas 2005), ………………………………9




                                         1
                               STATEMENT OF THE CASE


On September 25, 2013, the Appellant was charged by indictment with the offense of Driving While

Intoxicated – Third or More, which was alleged to have occurred on July 29, 2013. On May 29,

2014, the Appellant entered a plea of guilty. (RR1). On July 25, 2014 a sentencing hearing was

held. (RR2). At the conclusion of the hearing the Appellant was sentenced to five years

incarceration in the Texas Department of Criminal Justice, and was allowed to remain free on an

appeal bond. (RR 2 12-13). On August 12, 2014 the Appellant filed a motion for new trial which

was denied by operation of the law. (CR 26).




                                               2
                          ISSUES PRESENTED



  I.   THE SENTENCE DOES NOT VIOLATE THE EIGTH AMENDMENT TO THE
       UNTIED STATES CONSTITUTION.


II.    THE TRIAL COURT DID NOT VIOLATE THE APPELLANT’S RIGHT AGAINST
       SELF INCRIMINATION, NOR DID IT PUNISH APELLANT BASED ON ANY
       PERCIEVED STATUS.




                                  3
                                   STATEMENT OF FACTS


The court was asked to take judicial notice of the Pre-Sentence Investigation Report, (PSI). (RR 2-

4). A discussion about the report revealed the Appellant had convictions for driving while

intoxicated in 1988, 1990, 1996, and two in 2002. (RR 2-5). For the last one the Appellant received

three years confinement in the Texas Department of Criminal Justice. (RR 2-5). The PSI also

showed the Appellant had a blood alcohol content, (BAC), level of 0.223. (RR 2-10).



Prior to pronouncing sentence the following colloquy occurred:

Mr. Olsen, I don’t you know the thing that caught my eye, other than the six DWIs, was the fact
that you indicated that you didn’t have a drinking problem and maybe you have addressed that
issue right now. I don’t know. One of my jobs is to protect the public and, you know, I
understand the health condition. I looked at the information that was provided with regard to the
programs that are there. I don’t know what – I was going to ask you, but you didn’t – I don’t
know if you even can talk. You got sentenced to three years how much of that time did you do?

   A. A minimum.

       The court: Okay.

       Was that like within months you were out? That you didn’t – because that was 11 years
       ago on the three years that you got for your–

   A. I have not had a drink. This was an isolated incident.

       The Court: And Mr. Olsen I hear that every single time.

   A. I know.

       The Court: That is not – you are not the first person that is telling me that.

   A. I understand.




                                                 4
                                 SUMMARY OF ARGUMENT

Having been convicted of the felony offense of driving while intoxicated and sentenced to 5 years

incarceration the Appellant raises two issues on appeal. As discussed below, both of these issues lack

merit.



In Issue Number One, the Appellant claims his sentence was cruel and unusual because he has a

major medical condition. He asks this Court to disregard the tests established by the U.S. Supreme

Court and without any other points of reference to declare his sentence to be cruel and unusual. On

the other hand, once the Court’s mandated tests are applied it becomes readily apparent that the

sentence is not cruel and unusual. As such, this point should be overruled, and the conviction

affirmed.



In Issue Number Two, the Appellant takes a statement the court made in the sentencing hearing and

through a process of distortion and contortion claims the court violated his right against self-

incrimination or alternatively punished him based on a perceived status. Once the statement is read in

the context that it was made it becomes apparent that the Appellant’s assertions are not true, and this

point should be overruled.




                                                  5
                              ISSUE NUMBER ONE



THE SENTENCE DOES NOT VIOLATE THE EIGTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.

The general rule is that if an imposed sentence falls within the range mandated by the statute then it

is not cruel and unusual. Rummel v. Estelle, 446 U.S. 263, 100 S. Ct. 1133, 63 L.Ed. 2d 382

(1980); McNew v. State, 608 S.W. 2d 166 (Tex. Crim. App. 1978). The reason for the rule is to give

proper deference to the prerogatives of the legislative branch. Rummel, 445 U.S. at 273, 100 S.Ct. at

1139; McNew, at 608 S.W. 2d at 174.



Over the years, the Court has created exceptions to the general rule. Weems v. United States, 217

U.S. 349 (1910); Trop v. Dulles, 356 U.S. 86 (1958). In Weems, the Court held that it was cruel and

unusual for the individual sentenced to 12 years imprisonment and as a condition of imprisonment

that they had to be shackled 24 hours a day including the time they were doing hard labor. In Trop,

the Court held it was cruel and unusual for an individual to forfeit their United States citizenship for

the simple act of deserting one’s military post.



In the more modern era, the Court in Solem v. Helm, 463 U.S. 277 (1983) held that it was cruel and

unusual to sentence a non-violent habitual offender to a sentence of life without parole. In Solem,

the Court enunciated a framework to determine if a sentence was cruel and unusual. The Court’s

analysis is as follows:




                                                   6
 1.     The gravity of the offense and the harshness of the penalty;

 2.     The sentence imposed on criminals in the same jurisdiction; and

 3.     The sentence imposed for the same crime in other jurisdictions. Solem, 463 U.S. at 290.



The test enunciated in Solem was called into question in Harmelin v. Michigan, 501 U.S. 957

(1991). In Harmelin, a majority held that it was not cruel and unusual to sentence a first conviction

drug dealer to life without parole. A plurality of the Court rejected the Solem test.



Probably the best case after Harmelin to harmonize the tension between Solem and Harmelin is

McGruder v. Puckett, 954 F. 2d 313 (5th Cir. 1992). In McGruder, the Court observed:



        “By applying a head-count analysis, we find that seven members of the Court

      supported a continued guarantee against disproportional sentences. Only four justices

      supported the continued application of all three factors in Solem and five justices

      rejected it. Thus this much is clear, disproportionality survives. Solem does not. Only

      Justice Kennedy’s opinion reflects that view, it is to his opinion therefore that we turn

      for direction. Accordingly we will make a threshold comparison of the gravity of

      McGruder’s offense against severity of his sentence. Only is we infer that the sentence

      is grossly disproportionate to the offense will we then consider the remaining factors of

      the Solem test 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.”

      McGruder, 954 F.2 at 316.

                                                 7
Applying this to the Appellant’s case shows that the Appellant was charged with felony driving

while intoxicated which is a 3rd degree felony. The punishment range is not less than 2 years and not

more than 10 years and a fine not to exceed $10,000. The record shows the Appellant had a BAC of

0.233 at the time of his arrest which is almost three times the legal limit. The record also shows that

the Appellant had five prior convictions for driving while intoxicated with the last one resulting in a

3 year prison sentence. Based on this the sentence of 5 years’ incarceration is not grossly

disproportionate.



The Appellant argues that his medical condition trumps the analysis delineated above. The problem

with this argument is the Appellant cannot direct the Court to a primary source, a secondary source

nor a tertiary source to support his argument.



In fact secondary sources discredit his position that someone who has a medical condition should be

absolved from going to the penitentiary. A brief internet search revealed the following:



1.    On March 19, 2015 the Chicago Sun Times reported that Keith Farnham who is 67 years old

      and suffers from pulmonary fibrosis, bladder cancer and Hepatitis C was sentenced to 8 years

      incarcerations for child pornography. The defendant has a 90 day life expectancy and the

      judge refused to delay sentencing so that he could die at home;

2.    On October 2, 2013, Channel 7 news out of Denver Colorado reported that a 65 year old man

      who had terminal lung cancer was sentenced to 48 years incarceration for murdering his wife.

                                                  8
3.    On September 30, 2005 in Hardwell v. State, 2005 WL 2403437, (Tex. App, - Dallas 2005),

      the Court upheld a life sentence for an individual who had AIDS and was given 4 months to 1

      year to live. The defendant has been convicted of evading arrest and unauthorized use of a

      motor vehicle.



The examples detailed above show that the Appellant’s case is not unique as he asserts in his brief.

They show that it is not cruel and unusual to sentence individuals to the penitentiary who are “beset

with life threatening and life altering conditions” as asserted by the Appellant. As such, this point

should be overruled and the conviction affirmed.




                                                 9
                                ISSUE NUMBER TWO

THE TRIAL COURT DID NOT VIOLATE THE APPELLANT’S RIGHT AGAINST SELF
INCRIMINATION, NOR DID IT PUNISH APELLANT BASED ON ANY PERCIEVED
STATUS.




The record from the sentencing hearing shows that there were no witnesses called by either party.

The only evidence the Court had was the PSI prepared by the probation department. Twice the court

made references to the fact that the Appellant claimed he did not have a drinking problem. (RR 2-8,

11). The only way the court could have known this was from the information provided in the PSI.



When one reviews the record, it becomes obvious that the court was allowing the parties to see, in an

oral fashion, the evidence the court had before it in trying to assess the appropriate punishment. The

court was relaying to counsel statements attributed to his client.



The Appellant’s assertion that this violated his right against self-incrimination is not supported by

the record.



As it relates to his Robinson v. California, 370 U.S. 660 (1962) the Appellant’s case and argument

does not fit into that category. Robinson stands for the position that criminal sanctions should not be

imposed based on status. In the Appellant’s case sanctions were not imposed because he may be an

alcoholic. Sanctions were imposed because the Appellant had been convicted not once, not twice,

not three not four, not five but six times of felony driving while intoxicated and had been sentenced

                                                  10
to the penitentiary once before. Based on the Appellant’s history, the court chose to protect society

from an individual who has the proclivity to operate motor vehicles while intoxicated. This point

should be overruled and the conviction affirmed.




                                                 11
                                    PRAYER FOR RELIEF



Based on the foregoing, the Appellee prays that the Appellant’s conviction and sentence be affirmed.

                                              Respectfully Submitted,

                                              Timothy J. Cariker, Assistant District Attorney
                                              Harrison County District Attorney
                                              200 West Houston Street
                                              Marshall, Texas 75670



                                              By: /S/ Timothy J. Cariker
                                              _______________________________
                                              Timothy J. Cariker
                                              State Bar No. 24009942




                              CERTIFCATE OF COMPLIANCE


I certify that this brief contains 2272 words according to the computer program used to prepare this
document.


                                                     /S/ Timothy J. Cariker
                                              By: _________________________________
                                              Timothy J. Cariker




                                                12
                                   CERTIFICATE OF SERVICE



A true and correct copy of the foregoing document has been delivered to all counsel of record, on

this the 22nd day of April, 2015



                                                    /S/ Timothy J. Cariker
                                                    ____________________________________
                                                    Timothy J. Cariker




                                               13
