                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                           No. 07-15-00002-CR


                               JAKE HENRY OGLESBY, APPELLANT

                                                     V.

                                THE STATE OF TEXAS, APPELLEE

                               On Appeal from the 52nd District Court
                                       Coryell County, Texas1
                   Trial Court No. 13-21767, Honorable Trent D. Farrell, Presiding

                                         September 10, 2015

                                  MEMORANDUM OPINION
                        Before CAMPBELL and HANCOCK and PIRTLE, JJ.


        Appellant, Jake Henry Oglesby, pleaded guilty to the offense of aggravated

sexual assault of a child.2 The offense is a first-degree felony.3 Pursuant to a plea

agreement, appellant received ten years’ deferred adjudication.                   Subsequently, the

State filed a motion to adjudicate appellant guilty. After hearing the evidence, the trial

        1
          Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Tenth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
        2
            See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii) (West Supp. 2014).
        3
            See id. § 22.021(e) (West Supp. 2014).
court adjudicated appellant guilty of aggravated sexual assault of a child.       At the

conclusion of the punishment hearing, the trial court sentenced appellant to 40 years in

the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). On

appeal, appellant contends that his sentence is: (1) cruel or unusual under the Texas

Constitution, (2) cruel and unusual under the Eight Amendment to the United States

Constitution, and (3) grossly disproportionate.     Disagreeing with appellant, we will

affirm.

                               Factual and Procedural Background


          Appellant does not contend that his plea was entered involuntarily, nor does he

contend that the evidence was insufficient to support the trial court’s decision to

adjudicate him guilty of the offense.       Accordingly, our review of the factual and

procedural background will be very brief and narrowly focused.


          At the hearing on the issue of punishment, appellant offered the testimony of

William Lee Carter, Ed.D. Dr. Carter had been appointed by the trial court, at the

request of appellant’s trial counsel, to do a psychological evaluation of appellant.

During Dr. Carter’s testimony, it was explained that appellant had a very abnormal and

troubled life. Appellant’s mother and father divorced when appellant was quite young.

He had been sexually and physically abused by his father during visitation following the

divorce, and this situation ultimately led to his removal from the home at age 10.

Appellant spent the next six years in the care of the State of Texas. During this time,

appellant lived in a shelter, one psychiatric hospital, and two different residential

treatment facilities. Upon release from State care, appellant moved back in with his

mother and younger brother.

                                             2
        Appellant’s life in his mother’s home was described as chaotic. Appellant did

obtain a high school diploma but, the record indicates, that he spent his high school

years in a self-contained unit for students who were deemed to have significant

emotional problems.


        Dr. Carter opined that appellant was neither able to form any type of healthy

attachments to people, nor was appellant able to control any internal impulses. Dr.

Carter ultimately diagnosed appellant with reactive attachment disorder and attention

deficit hyperactive disorder, impulse type.


        However, Dr. Carter further opined that appellant would have a high likelihood of

recidivism.     Ultimately, Dr. Carter testified that the best option for appellant was

incarceration.


        The trial court, after hearing the punishment evidence, sentenced appellant to

confinement in the ID-TDCJ for 40 years. Appellant filed a motion for new trial, in

which, he raised the issues of cruel and unusual punishment and disproportionate

sentence. The motion was overruled by operation of law.4 This appeal followed.


        On appeal, appellant now contends that the sentence violated the Texas

Constitution prohibition against cruel or unusual punishment. See TEX. CONST. art. 1, §

13. Appellant also contends that the sentence violates the prohibition of the United

States Constitution regarding cruel and unusual punishment. See U.S. CONST. amend.




        4
          The clerk’s record contains an order setting the motion for new trial for a hearing; however,
there is no order overruling the motion in the clerk’s record, and the trial court’s docket sheet contains no
entry regarding a hearing on the motion for new trial.

                                                     3
VIII. Finally, appellant contends that the sentence is grossly disproportionate.

Disagreeing with appellant, we will affirm.


                                   Standard of Review


       Appellant contends that we should review this matter under the abuse of

discretion standard associated with the denial of a motion for new trial. See Weaver v.

State, 999 S.W.2d 913, 916 (Tex. App.—Waco 1999, no pet.). Further, he maintains

that we should review the constitutional questions de novo. See Moore v. State, 169

S.W.3d 467, 474 (Tex. App.—Texarkana 2004, pet. ref’d).


       On the other hand, the State contends that the issue is one of whether the trial

court abused its discretion in sentencing. See Jackson v. State, 680 S.W.2d 809, 814

(Tex. Crim. App. 1984) (en banc). Further, the State posits that, if the sentence is within

the statutorily prescribed guidelines, the sentence is reviewable under the gross-

disproportionality standard. See Jarvis v. State, 315 S.W.3d 158, 162 (Tex. App.—

Beaumont 2010, no pet.) (citing Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim.

App. 2006)).


       We will apply the de novo standard to the question concerning cruel and unusual

punishment. If the trial court’s sentence was proper under that standard, then the trial

court did not abuse its discretion in assessing the sentence. See Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc). As to the question of whether

the sentence was grossly disproportionate, we will apply the standard suggested in

Jarvis v. State. See Jarvis, 315 S.W.3d at 162.




                                              4
                                 Cruel or Unusual Punishment


       Both the United States and Texas Constitutions prohibit cruel and/or unusual

punishment. The United States Constitution, via the Eighth Amendment, states that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishment inflicted.”     U.S. CONST. amend. VIII.      This provision is made

applicable to the states by virtue of the Fourteenth Amendment.        See U.S. CONST.

amend. XIV.; Furman v. Georgia, 408 U.S. 238, 239, 92 S. Ct. 2726, 33 L. Ed. 2d 346

(1972).   The Texas Constitution states the prohibition in the following manner:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual

punishment inflicted.” TEX. CONST. art I, § 13. The linguistic difference is in the use of

the conjunctive “and” in the United States Constitution and the disjunctive “or” in the

Texas Constitution. Appellant posits that this linguistic difference means that the Texas

Constitution provides more protection to appellant than that offered by the United States

Constitution.


       In this regard, the law of the State of Texas is against appellant. The Texas

Court of Criminal Appeals has determined that there is no significant difference in the

protection afforded by either constitution. See Cantu v. State, 939 S.W.2d 627, 645

(Tex. Crim. App. 1997) (en banc) (citing Anderson v. State, 932 S.W.2d 502, 509 (Tex.

Crim. App. 1996) (en banc), and holding that capital punishment is neither cruel nor

unusual for purposes of the Texas Constitution); see also Valdez v. State, No. 10-12-

00410-CR, 2014 Tex. App LEXIS 1375, at *5 (Tex. App.—Waco Feb. 6, 2014, pet. ref’d)

(mem. op., not designated for publication); Duran v. State, 363 S.W.3d 719, 723 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d). Accordingly, we will analyze appellant’s

                                            5
constitutional contentions regarding cruel and unusual punishment together and not

under any separate analysis. See Ajisebutu v. State, 236 S.W.3d 309, 311 n.2 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d) (recognizing that, had appellant’s issue been

properly preserved, the courts in Texas have declined requests to review the federal

and state issues separately).


        When punishment is assessed within the legislatively prescribed limits, Texas

courts have held that such punishment does not violate the constitutional prohibitions

against cruel and unusual punishment. See Valdez, 2014 Tex. App LEXIS 1375, at *7;

see also Duran, 363 S.W.3d at 724. As stated above, we will not assume the United

States Constitutional prohibition against cruel and unusual punishment means anything

differently. See Duran, 363 S.W.3d at 723-24 (citing Muniz v. State, 851 S.W.2d 238,

251–52 (Tex. Crim. App. 1993) (en banc), and Heitman v. State, 815 S.W.2d 681, 690

n.23 (Tex. Crim. App. 1991) (en banc)).


        The record before us shows that appellant was charged with a first degree-felony

offense. A first-degree felony is punishable by a term of confinement for life or for any

term of not more than 99 years or less than 5 years. See TEX. PENAL CODE ANN. §

12.32(a) (West 2011). Appellant was sentenced to 40 years incarceration in the ID-

TDCJ.     His sentence was less than one-half of the statutory maximum.          See id.

Accordingly we cannot and will not say that such a sentence is cruel and unusual. See

Valdez, 2014 Tex. App LEXIS 1375 at *7; see also Duran, 363 S.W.3d at 724.

Appellant’s first two issues are overruled.




                                              6
      To convince the Court that appellant’s sentence violates the prohibitions against

cruel and unusual punishment, appellant spends a great deal of time reminding the

Court of appellant’s mental illness.      Appellant then goes through an extensive

discussion about the dichotomy his case presents between treatment and incarceration.

While we understand, and are somewhat sympathetic to, appellant’s personal plight, the

issues raised are more a concern for the legislature in the area of funding mental health

alternatives. They do not, however, render his sentence cruel or unusual.


                           Grossly Disproportionate Sentence


      Appellant’s final issue contends that the sentence he received is grossly

disproportionate. A legislatively prescribed sentence is subject to a limited review under

the Eighth Amendment prohibition against cruel and unusual punishment if the sentence

can be held to be grossly disproportionate to the gravity of the offense. See Graham v.

Florida, 560 U.S. 48, 58–60, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Valdez, 2014

Tex. App LEXIS 1375, at *11–12; Winchester v. State, 246 S.W.3d 386, 388 (Tex.

App—Amarillo 2008, pet. ref’d).


      The United States Supreme Court addressed the issue of proportionality of

sentences in Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637

(1983). Under the test laid down in Solem, the following objective criteria was set forth:

(1) the gravity of the offense and the harshness of the penalty; (2) the sentence

imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for

commission of the same crime in other jurisdictions. Id. at 292. However, Solem was

modified by the courts ruling in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,



                                            7
115 L. Ed. 2d 836 (1991).     Harmlein was a plurality opinion in which two justices

rejected the Solem proportionality test altogether, see id. at 962; three justices said

there was a narrow proportionality principle contained within the Eighth Amendment,

see id. at 997; and four justices said that, in essence, Solem was correctly decided.

See id. at 1027. Following Harmelin, the Fifth Circuit Court of Appeals subsequently

adopted the modified Solem test. See McGruder v. Puckett, 954 F.2d 313, 316 (5th

Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992). Under the

McGruder analysis, the initial inquiry is a comparison of the gravity of the offense

against the severity of the punishment received. See id. Only when the court finds that

the sentence is grossly disproportionate to the offense does the reviewing court apply

the final two prongs of the Solem test. See id. The 10th Court in Waco and this Court

have applied the principles set forth in McGruder. See Valdez, 2014 Tex. App LEXIS

1375, at *13–14, Winchester, 246 S.W.3d at 390.


      When we apply these principles to the case before us, the first consideration is

the gravity of the offense. The record shows that the victim of appellant’s aggravated

sexual abuse was a six-year-old male child. The victim was a cousin of appellant and

was described as being somewhat slower developing. The record further demonstrates

that appellant was 22 years old at the time of sentencing. The range of punishment was

up to life or any period of confinement of not more than 99 years or less than 5 years.

See TEX. PENAL CODE ANN. § 12.32(a). Further, the psychologist, Dr. Carter, testified

that there was a high probability of appellant reoffending.    In light of the 40-year

sentence being less than one-half of the maximum, we do not find the appellant’s

sentence to be grossly disproportionate to the offense. See Valdez, 2014 Tex. App


                                           8
LEXIS 1375, at *13–14, Winchester, 246 S.W.3d at 390. Because of our finding on the

threshold issue, we need not address the final two prongs of the Solem analysis. See

Valdez, 2014 Tex. App LEXIS 1375, at *13–14, Winchester, 246 S.W.3d at 390. We

overrule appellant’s third issue.


                                       Conclusion


       Having overruled appellant’s issues, we affirm the judgment of the trial court.




                                                 Mackey K. Hancock
                                                     Justice



Do not publish.




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