                                      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
