                                                                          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.).


                                                28
                             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




                                         29
                               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
