                                   NO. 12-15-00202-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

CHARLES BENNETT, SR.,                             §      APPEAL FROM THE 349TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Charles Bennett, Sr. appeals his convictions for sexual assault of a child, aggravated
sexual assault of a disabled individual, and prohibited sexual conduct, for which he was
sentenced to imprisonment for fifteen years, twenty-five years, and ten years respectively. In
two issues, Appellant argues that his sentence amounted to cruel and unusual punishment and the
trial court erred in admitting a written statement from his wife at trial. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with, among other things, sexual assault of a child,
sexual assault of a disabled individual, and prohibited sexual conduct. Appellant pleaded “not
guilty” to each charge.
       A jury found Appellant “guilty” as charged, and the matter proceeded to a trial on
punishment. Ultimately, the jury assessed Appellant’s punishment at imprisonment for fifteen
years for sexual assault of a child, twenty-five years for sexual assault of a disabled individual,
and ten years for prohibited sexual conduct. The trial court sentenced Appellant accordingly and
ordered that Appellant’s two sentences for sexual assault run consecutively.            This appeal
followed.
                               CRUEL AND UNUSUAL PUNISHMENT
       In his first issue, Appellant argues that the sentences imposed by the trial court amount to
cruel and unusual punishment. However, Appellant made no timely objection to the trial court
raising the issue of cruel and unusual punishment and has, therefore, failed to preserve any such
error. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard
to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App.
1995) (waiver with regard to rights under the United States Constitution); see also TEX R. APP.
P. 33.1; Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). (“Preservation of error is a
systemic requirement that a first-level appellate court should ordinarily review on its own
motion[;] . . . it [is] incumbent upon the [c]ourt itself to take up error preservation as a threshold
issue.”). But even despite Appellant’s failure to preserve error, we conclude that the sentence
about which he complains does not constitute cruel and unusual punishment.
       The Eighth Amendment to the Constitution of the United States provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST. amend. VIII. This provision was made applicable to the
states by the Due Process Clause of the Fourteenth Amendment. Meadoux v. State, 325 S.W.3d
189, 193 (Tex. Crim. App. 2010) (citing Robinson v. California, 370 U.S. 660, 666–67, 82 S.
Ct. 1417, 1420–21, 8 L. Ed. 2d 758 (1962)).
       The legislature is vested with the power to define crimes and prescribe penalties. See
Davis v. State, 905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref’d); see also Simmons
v. State, 944 S.W.2d 11, 15 (Tex. App.–Tyler 1996, pet. ref’d). Courts have repeatedly held that
punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or
unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664.
       In the case at hand, Appellant was convicted of sexual assault of a child, the punishment
range for which is two to twenty years.               See TEX. PENAL CODE ANN. §§ 12.33(a),
22.011(a)(2)(A), (f) (West 2011). Appellant further was convicted of aggravated sexual assault
of a disabled individual, the punishment range for which is five to ninety-nine years, or life. See
TEX. PENAL CODE ANN. §§ 12.32(a), 22.021(a)(2)(C), (e) (West 2011 & Supp. 2015). Lastly,
Appellant was convicted of prohibited sexual conduct, the punishment range for which is two to
ten years. See TEX. PENAL CODE ANN. §§ 12.34(a), 25.02(a)(2), (c) (West 2011). Thus, the



                                                  2
sentences imposed by the trial court fall within the range set forth by the legislature. Therefore,
the punishments are not prohibited as cruel, unusual, or excessive per se.
       Nonetheless, Appellant urges the court to perform the three part test originally set forth in
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the
proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the
harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction,
and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem,
463 U.S. at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by
Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court’s decision in
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a
threshold determination that the sentence is grossly disproportionate to the crime before
addressing the remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.
1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v.
State, 989 S.W.2d 842, 845–46 (Tex. App.–Texarkana 1999, no pet.).
       We first must determine whether Appellant’s sentence is grossly disproportionate. In so
doing, we are guided by the holding in Rummel v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L.
Ed. 2d 382 (1980). In Rummel, the Supreme Court addressed the proportionality claim of an
appellant who had received a mandatory life sentence under a prior version of the Texas habitual
offender statute for a conviction of obtaining $120.75 by false pretenses. See id., 445 U.S. at 266,
100 S. Ct. at 1135. A life sentence was imposed because the appellant also had two prior felony
convictions––one for fraudulent use of a credit card to obtain $80.00 worth of goods or services
and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 266, 100 S. Ct.
at 1134–35. After recognizing the legislative prerogative to classify offenses as felonies and,
further, considering the purpose of the habitual offender statute, the court determined that the
appellant’s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445
U.S. at 285, 100 S. Ct. at 1145.
       In the case at hand, the offenses committed by Appellant––sexual assault of a child,
aggravated sexual assault of a disabled individual, and prohibited sexual conduct––each are far
more serious than the combination of offenses committed by the appellant in Rummel, while
Appellant’s sentences are much less severe than the life sentence upheld by the Supreme Court
in Rummel, even considering that the fifteen and twenty-five year sentences run consecutively.



                                                 3
Thus, it is reasonable to conclude that if the sentence in Rummel was not unconstitutionally
disproportionate, then neither are the sentences assessed against Appellant in the case at hand.
Therefore, since we do not find the threshold test to be satisfied, we need not apply the
remaining elements of the Solem test. Appellant’s first issue is overruled.


                        SWORN WRITTEN STATEMENT OF APPELLANT’S WIFE
        In his second issue, Appellant argues that the trial court erred in admitting a redacted
version of a sworn written statement made by his wife because it contained hearsay and violated
his rights under the Confrontation Clause pursuant to Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004).1 Appellant’s wife’s redacted statement reads, in pertinent
part, as follows:

                  We kept a lock on [C.R.]’s bedroom because she was always trying to sneak out at night.
        I put the lock on the door . . . .

                  I knew that Charles and [C.R.] started having sex when she was 16 years old. At the
        time, I didn’t see anything wrong with it because I wanted her to be the surrogate mother to have
        my grandchild. They had sex from the time she was 16 until she was 31. My daughter would be
        the one who wanted to have sex. She would always be messing with him. I wasn’t upset about it
        because I wanted the child and I never cared that they slept together. Looking back now, I realize
        that was wrong and I take the blame for it. Charles is the father of my granddaughter . . . .


Harm Analysis
        Even assuming arguendo that the trial court erred in admitting the statement, the error is
not reversible unless Appellant was harmed by the statement’s admission. A Confrontation
Clause violation is subject to a harmless error analysis. See Lilly v. Virginia, 527 U.S. 116, 140,
119 S. Ct. 1887, 1901, 144 L.Ed.2d 117 (1999); Coy v. Iowa, 487 U.S. 1012, 1021, 108 S. Ct.
2798, 2803, 101 L. Ed. 2d 857 (1988); Davis v. State, 169 S.W.3d 660, 672 (Tex. App.–Austin
2005), aff'd, 203 S.W.3d 845 (Tex. Crim. App. 2006). We must reverse the conviction when
Confrontation Clause error is presented unless we can determine beyond a reasonable doubt that
the error did not contribute to the conviction. See Chapman v. California, 386 U.S. 18, 24, 87 S.


         1
           In Crawford, the Supreme Court held that, without exception, testimonial hearsay statements of witnesses
absent from trial are admissible over a Sixth Amendment Confrontation Clause objection only where the declarant is
unavailable and where the defendant has had a prior opportunity to cross examine the declarant. Crawford, 541
U.S. at 57–60, 124 S. Ct. at 1368–69. This requirement “does not evaporate when testimony happens to fall within
some broad modern hearsay exception, even if the exception is sufficient in other circumstances.” Davis, 169
S.W.3d at 668 (quoting Crawford, 541 U.S. at 56, n.7, 124 S. Ct. at 1367 n.7).


                                                        4
Ct. 824, 828, 17 L.Ed.2d 705 (1967); Mendez v. State, 56 S.W.3d 880, 893 (Tex. App.–Austin
2001, pet. ref’d); see also TEX. R. APP. P. 44.2(a).
         In Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991), the Texas Court of
Criminal Appeals adopted the Supreme Court’s analysis in Delaware v. Van Arsdall, 475 U.S.
673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986), for assessing harm in Confrontation
Clause cases. See also Samarron, 150 S.W.3d 701, 707 (Tex. App.–San Antonio, 2004, pet.
ref’d); de la Rosa v. State, 961 S.W.2d 495, 499 (Tex. App.–San Antonio 1997, no pet.)
(applying Van Arsdall factors).
         The Van Arsdall analysis is a three pronged test. First, the reviewing court must assume
that the damaging potential of the lack of cross examination was fully realized. See Davis, 169
S.W.3d at 672. Second, with that assumption in mind, the court must review the error in
connection with the following factors: (1) the extent for cross examination otherwise permitted;
(2) the importance of the witness’s testimony in the State’s case; (3) whether the testimony was
cumulative; (4) the presence or absence of evidence corroborating or contradicting material
points of the witness’s testimony; and (5) the overall strength of the State's case. Id. Finally, in
light of the first two prongs, the court determines if the error was harmless beyond a reasonable
doubt. Id. at 672–73 (citing Van Arsdall, 475 U.S. at 684, 106 S. Ct. 1431).2
         In the instant case, the parties discussed the fact that Appellant’s wife testified during a
pretrial hearing. But there is no indication that Appellant cross examined her at that time.
Further, the record does not reveal the subject matter of her testimony. But even had Appellant
cross examined her at that time, the fact remains that she made her written statement after the
hearing. Thus, any cross examination could not have been used to elicit testimony from her
concerning her written statement.
         Nonetheless, Appellant’s wife’s testimony was not critical to the State’s case, and the
material portions of it were cumulative of other testimony. At trial, C.R. testified that she moved
in with her mother and Appellant when she was sixteen years old. She further testified that she
began having sexual intercourse with Appellant the first night she lived in the house with him
and her mother.3 C.R. stated that after that time, she and Appellant regularly had sexual


         2
           The Van Arsdall factors in the second prong of the analysis were developed in light of the particular facts
there presented. Davis 169 S.W.3d at 673 n.8. Like factors in other contexts, the Van Arsdall factors do not always
present a “one shoe fits all” analysis easily applied to every case. Id.




                                                          5
intercourse once or twice per week until she was thirty-one years old. C.R. further stated that
there was a padlock on her bedroom door that was locked every night to “keep [her] in.”
Sheriff’s Assistant Mary Jordan testified that she visited the scene and that there was evidence
that a lock had been placed on C.R.’s bedroom door. Moreover, C.R. testified that Appellant is
the father of her daughter, A.R. Lab results demonstrating Appellant’s paternity of C.R.’s
daughter were admitted into evidence as well. C.R. further testified that that she never consented
to any of these sexual encounters and the reason these encounters were occurring was because
her mother wanted to have another baby.
         We have reviewed the entirety of the record. The State presented a strong case against
Appellant. No evidence of record tends to contradict the material points of Appellant’s wife’s
written statement, and these material points are cumulative of the testimony offered by C.R.,
Jordan, and other exhibits offered into evidence. Having assumed that the damaging potential of
the lack of cross examination of Appellant’s wife was fully realized and having considered the
aforementioned factors, we conclude beyond a reasonable doubt that the error, if any, did not
contribute to Appellant’s conviction. Accordingly, we hold that any error by the trial court in
admitting Appellant’s wife’s written statement was not reversible error.4 Appellant’s second
issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.
                                                                           BRIAN HOYLE
                                                                              Justice

Opinion delivered July 20, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)

         3
           C.R. testified that her mother was sitting on the couch in the living room and Appellant grabbed her by
the hand and led her to the bedroom where the two of them had sexual intercourse. A jury could conclude from this
testimony alone that Appellant’s wife knew the two of them were having intercourse.
         4
          We likewise conclude that the trial court’s admission of this statement over Appellant’s hearsay objection
was not harmful under Texas Rule of Appellate Procedure 44.1(a).


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 20, 2016


                                         NO. 12-15-00202-CR


                                     CHARLES BENNETT, SR.,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 05CR-051)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
