                                                              PD-1278-17
                                             COURT OF CRIMINAL APPEALS
                                                             AUSTIN, TEXAS
                                              Transmitted 12/20/2017 3:41 PM
                                               Accepted 12/22/2017 12:04 PM
                                                        DEANA WILLIAMSON
          PD No. 1278-17                                              CLERK
        (COA No. 02-16-00387-CR)
                                                  FILED
                                         COURT OF CRIMINAL APPEALS
                                               12/22/2017
                                          DEANA WILLIAMSON, CLERK

  COURT OF CRIMINAL APPEALS
          OF TEXAS


          Donald Ray Shivers,
                         Petitioner- Appellant,
                   vs.

           The State of Texas,
                         Respondent- Appellee.




           APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW

                    OFFICE OF THE PUBLIC DEFENDER
                    WICHITA COUNTY, TEXAS

                    Jarret Noll # 24081692
                    ASSISTANT PUBLIC DEFENDER

                    600 Scott Avenue, Suite 204
                    Wichita Falls, Texas 76301
                    940-766-8199
                    Fax 940-716-8561


    ORAL ARGUMENT IS REQUESTED
     IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL

Anthony Bates
Attorney for the State at Trial
Assistant District Attorney
900 7th Street, Third Floor
Wichita Falls, Texas 76301
Anthony.Bates@co.wichita.tx.us

Jennifer Ponder
Attorney for the State on Appeal
Assistant District Attorney
900 7th Street, Third Floor
Wichita Falls, Texas 76301
Jennifer.Ponder@co.wichita.tx.us

Appellant
Donald Ray Shivers, Jr.

James Rasmussen
Attorney for Appellant at Trial and on Appeal
Chief Public Defender
600 Scott Street, Suite 204
Wichita Falls, Texas 76301
James.Rasmussen@co.wichita.tx.us

Jarret Noll
Attorney for Appellant on Appeal
Assistant Public Defender
600 Scott Street, Suite 204
Wichita Falls, Texas 76301
Jarret.Noll@co.wichita.tx.us

Honorable Charles Barnard
Presiding Judge, 89th District Court of Wichita County
900 7th Street, Rm 300
Wichita Falls, Texas 76301
Charles.Barnard@co.wichita.tx.us




                                                         ii
                                    Table of Contents

Identity of Judge, Parties, and Counsel .......................................... ii

Index of Authorities ......................................................................... v

Statement Regarding Oral Argument ............................................. 1

Statement of the Case...................................................................... 1

Statement of Procedural History..................................................... 2

Grounds for Review ......................................................................... 3

Questions for Review ....................................................................... 4

Argument ......................................................................................... 5

    I.      The appellate court erroneously concluded
            that victim-impact evidence, particularly
            evidence focused on speculative, future harm
            to the victim, was proper evidence of
            Petitioner’s personal responsibility and moral
            culpability and thus relevant to Petitioner’s
            sentencing. ....................................................................... 5

                   a.      The appellate court’s analysis failed
                           to focus on the speculative nature of
                           the particular victim-impact
                           evidence offered, thereby failing to
                           properly consider the unfair
                           prejudice and lack of relevance of the
                           evidence. ......................................................... 6

                   b.      The appellate court’s analysis failed
                           to demonstrate a relationship
                           between the “position of trust and
                           authority” that would lead Petitioner

                                                                                                 iii
                           to anticipate the negative effects his
                           acts would have on the victim and
                           the relevance of expert testimony on
                           the actual effect any such acts did in
                           fact have. ......................................................... 8

    II.     The appellate court used the wrong
            framework in analyzing the issue of
            Petitioner’s cumulated sentencing, thereby
            missing the constitutional magnitude of the
            point Petitioner was trying to make. ...................... 12

                   a.      The appellate court relied on Barrow
                           in making its decision, and the
                           framework in Barrow prevents
                           meaningful review of the sentence
                           actually imposed. ......................................... 12

                   b.      The current state of the law deprives
                           criminal defendants of the right
                           against cruel and unusual
                           punishment by forestalling legitimate
                           appellate review of the sentence
                           actually imposed. ......................................... 15

Conclusion and Prayer for Relief................................................... 17

Signature........................................................................................ 18

Certificate of Compliance .............................................................. 19

Certificate of Service...................................................................... 19

Judgment and Opinion Below ................................................ App. A




                                                                                                 iv
                               Index to Authorities
Cases:

Barrow v. State,
     207 S.W.3d 377 (Tex. Crim. App. 2006) ............ 4, 5, 12, 13, 14

Miller-El v. State,
     782 S.W.2d 892 (Tex. Crim. App. 1990). ......................... 5, 10

Salazar v. State,
     90 S.W.3d 330 (Tex. Crim. App. 2002). ............................. 5, 6

Stavinoha v. State,
     808 S.W.2d 76 (Tex. Crim. App. 1991). ................... 5, 9, 10, 11

Stevens v. State,
     667 S.W.2d 534 (Tex. Crim. App. 1984). ........................15, 16

Williamson v. State,
      175 S.W.3d 522 (Tex. App.—Texarkana 2005, no pet.). 15, 16

Statutes and Rules:

Tex. Code Crim. Pro. art. 37.07 ................................................... 5, 8

Tex. Penal Code §3.03 ................................................................ 5, 14

Tex. Penal Code §12.32 .............................................................. 5, 14

Tex. R. App. P. 66.3(b) ..................................................................... 3

Tex. R. App. P. 66.3(b) ..................................................................... 3

Tex. R. Evid. 403 ............................................................... 5, 8, 10, 11

Constitutions

Tex. Const. Art. I § 13 ................................................................ 8, 14

                                                                                             v
Tex. Const. Art. I § 19 ................................................................ 8, 14

U.S. Const. Amend. VIII ...........................................................15, 16

U.S. Const. Amend. XIV ...........................................................15, 16




                                                                                           vi
                 Statement Regarding Oral Argument

       Petitioner believes that oral argument will assist the Court

in deciding the issues presented and allow counsel to expound

upon the analytical history and present state of the law in a way

that a brief cannot.

                            Statement of the Case

       Petitioner made an open plea of guilty to three counts of

aggravated sexual assault of a child, waived a jury, and upon

evidence at a contested punishment hearing, submitted the matter

to the trial court for sentencing.1 After argument of counsel, the

Judge of the 89th District court sentenced Petitioner to three

consecutive life sentences.2 Petitioner timely appealed, and the

Second Court of appeals affirmed the judgment of the trial court.3

This request for a petitioner for discretionary review follows.




1 RR 2:7-12.
2 RR 7:5.
3 Shivers v. State, No. 02-16-00387-CR, 2017 Tex. App. LEXIS 9872 at *10.


                                                                            1
                       Statement of Procedural History

          On October 19, 2017, the Court of Appeals, Second District,

ruled in favor of Appellee, holding that the complained of

testimony “went directly to Shiver’s personal responsibility and

moral culpability for the offense” and that each of Petitioner’s life

sentences was “within the statutorily prescribed range for each

conviction” and the trial court’s decision to cumulate Shivers’

sentences “did not raise the statutory maximum punishment for

any of the three offenses,” and did not constitute cruel and

unusual punishment.4 No motion for rehearing was filed.




4   Shivers v. State, No. 02-16-00387-CR, 2017 Tex. App. LEXIS 9872 at *7-10.
                                                                                2
                     Ground(s) for Review

     The court of appeals decided an important question of state

and federal law that has not been, but should be, settled by the

Court of Criminal Appeals. See Tex. R. App. P. 66.3(b).

     The court of appeals decided an important question of state

law in a way that conflicts with the applicable decisions of the

Supreme Court of the United States. See Tex. R. App. P. 66.3(c).




                                                                   3
           Question(s) Presented for Review

1. Did the appellate court erroneously conclude that victim-

  impact evidence, particularly evidence focused on

  speculative, future harm to the victim, was proper evidence

  of Petitioner’s personal responsibility and moral culpability

  and thus relevant to Petitioner’s sentencing?

2. Did the appellate court use the wrong framework in

  analyzing the issue of Petitioner’s cumulated sentencing,

  thereby missing the constitutional magnitude of the point

  Petitioner was trying to make?




                                                                  4
                                         Argument

I.        The appellate court erroneously concluded that

victim-impact evidence, particularly evidence focused on

speculative, future harm to the victim, was proper

evidence of Petitioner’s personal responsibility and moral

culpability and thus relevant to Petitioner’s sentencing.

          The Court of Criminal Appeals adopted, as a general

proposition, that victim-impact evidence may be warranted when

that evidence has some bearing on the defendant’s personal

responsibility and moral culpability.5 Stavinoha v. State has

extended such evidence to non-capital cases not as a “question of

logical relevance [but as a function] of policy.”6 When considering

the admissibility of victim impact or victim character evidence,

courts must carefully consider the following factors: (1) how

probative is the evidence; (2) the potential of the evidence to

impress the factfinder in some irrational, but nevertheless




5   Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002).
6   808 S.W.2d 76, 78 (Tex. Crim. App. 1991).
                                                                      5
indelible way; (3) the time the proponent needs to develop the

evidence; and (4) the proponent’s need for the evidence.7

     a.     The appellate court’s analysis failed to focus on

     the speculative nature of the particular victim-impact

     evidence offered, thereby failing to properly consider

     the unfair prejudice and lack of relevance of the

     evidence.

            In the present case, Petitioner complained that the

     victim impact evidence in question had an inadequate

     bearing upon his personal responsibility and moral guilt in

     this non-homicide context and was therefore not relevant to

     sentencing. The appellate court failed to focus on Petitioner’s

     argument that such evidence failed to give the factfinder

     particular insight into the personal responsibility or moral

     guilt of the offender in the context of aggravated sexual

     assault cases. Rather, the appellate court zeroed in on the

     “position of trust or authority” that Petitioner held over the

     victim.

     7 Salazar v. State, 90 S.W.3d 330, 336 (Tex. Crim. App. 2002).




                                                                      6
     In doing so, the appellate court failed to properly

consider the probative nature of the proffered testimony –

testimony from a sex abuse counselor regarding not just

present harm but speculative future harm and testimony

from an expert who had never examined the child and who

testified largely in the form of speculative hypotheticals.

This testimony is not probative of the Petitioner’s personal

responsibility and moral guilt and therefore it cannot be

relevant to Petitioner’s sentencing.

     Perhaps this is why the appellate court’s analysis of

the probative nature of the evidence is contained in one

conclusory, tautological sentence: “As to the admissibility of

Cardwell’s and Edward’s testimony, we note that the

evidence had significant probative value in that it

underscored Shivers’ personal responsibility and moral

culpability.” By failing to confront the nexus between the

proffered testimony and the Petitioner’s personal

responsibility and moral culpability, the appellate court




                                                                 7
failed to make proper inquiry into the unfair prejudice of the

evidence.

      Expert testimony of any psychological impact has only

a tenuous bearing on the personal responsibility or moral

guilt of the various types of aggravated sexual assault

offenders. Such evidence rarely concerns the defendant at

all. The victim becomes the focus of sentencing, not the

offender. Rule 403, the Due Process Clause, and the Due

Course of Law Clause guard against any attempt to deviate

from the purpose of an Article 37.07 punishment hearing –

to examine matters relevant to sentencing. These safeguards

are meaningless when the appellate court fails to use them

to rein in trial courts. In this case, the appellate court failed

to properly recognize the scope of Rule 403 in permitting and

considering the admission of unduly prejudicial evidence

that had little if any probative value.

b.    The appellate court’s analysis failed to

demonstrate a relationship between the “position of

trust and authority” that would lead Petitioner to


                                                                    8
          anticipate the negative effects his acts would have on

          the victim and the relevance of expert testimony on

          the actual effect any such acts did in fact have.

                  In Stavinoha, the Court held that victim impact

          evidence was admissible in the punishment phase of an

          aggravated sexual assault trial because the priest could

          easily have anticipated the impact his betrayal of trust

          would have on the parishioner he had sexually assaulted.8

          Relying on this holding, the appellate court in this case held

          that, because of Petitioner’s position as the victim’s father,

          he should have anticipated the negative effects of his acts

          and thus the testimony of the experts went directly to

          Petitioner’s personal responsibility and moral culpability for

          the offense.

                  To the extent the appellate court was bound by this

          Court’s precedent, the holding of Stavinoha needs to be

          reexamined, and this case shows why. Without any

          evidentiary nexus between the purported relationship of



8   Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. App. 1991).
                                                                           9
          trust and authority Petitioner had over the victim, the

          appellate court in sweeping generalizations determined that

          victim impact evidence went to Petitioner’s personal

          responsibility and moral guilt because of this position of

          trust and authority. No examination was made into the

          probative force of the expert testimony of this particular

          evidence because the appellate court instead could rely on

          Stavinoha’s “position of trust and authority” holding, thus

          short-circuiting the 403 analysis and preventing any

          legitimate review of the probative value and prejudicial

          effect of the expert testimony at hand.

                  The idea that a victim’s injury does not outrun the

          perpetrator’s moral culpability9 makes sense in murder cases

          where the defendant’s object is to cause the death of the

          victim. It makes perfect sense, for example, for a murderer

          to “anticipate” that in attempting to extinguish a human life

          he might instead paralyze the victim. How such evidence can

          prove his personal responsibility or moral guilt is evident.



9   Miller-El v. State, 782 S.W.2d 892, 897 (Tex. Crim. App. 1990).
                                                                         10
     The proof of such “anticipation” makes less sense in

sexual assault cases when the expert testimony relates to

possible future harm and mental trauma. The holding in

Stavinoha should not be misapplied to allow victim impact

evidence in all cases where there is some scant evidence of a

purported or perceived relationship of trust or authority

because to do so would to stultify the 403 analysis required

before victim impact evidence can properly be admitted. The

only way to prevent such misapplication of Stavinoha is to

require some nexus between the purported relationship of

trust and the victim impact evidence that is offered at trial,

which did not happen in this case.




                                                             11
II.       The appellate court used the wrong framework in

analyzing the issue of Petitioner’s cumulated sentencing,

thereby missing the constitutional magnitude of the point

Petitioner was trying to make.

          a.      The appellate court relied on Barrow in making

          its decision, and the framework in Barrow prevents

          meaningful appellate review of the sentence actually

          imposed.

                  The appellate court relied on Barrow in concluding

          that the cumulation of Petitioner’s sentences did not violate

          Due Process and Due Course of Law. Barrow stands for the

          proposition the Legislature has charged the trial court with

          the determination of whether to cumulate, and the trial

          court is free to make this determination so long as the

          individual sentences are not elevated beyond their respective

          statutory maximums.10 The decision never expressly holds

          that the proper framework for analyzing the Due Process




10   207 S.W.3d 377, 382 (Tex. Crim. App. 2006).
                                                                       12
           issues of cumulated sentences must be done on an

           individual-sentence level.

                   Such a holding was unnecessary in light of the

           appellant’s contentions that because he elected to have the

           jury assess punishment, the trial judge's decision to

           cumulate was a violation of his constitutional right to a jury

           trial and his constitutional right to due process.11

           Furthermore, the appellant in that case received two stacked

           sentences but these sentences were 15- and 20- year

           sentences respectively.12 Thus, the question presented in this

           case is not really answered by resort to Barrow.

                   Here, the trial court stacked three life sentences, which

           dramatically changes the nature of the analysis. In Barrow,

           the cumulated sentences, taken together, were still within

           the statutorily described maximum for the charged offense.

           In this case, the cumulated sentences, taken together, exceed

           the statutorily described maximum, the point Petitioner

           tried to make to the appellate court below. By relying on


11   Id. at 378.
12   Id.
                                                                         13
          Barrow, the appellate court failed to properly address the

          constitutional magnitude of Petitioner’s argument that the

          stacking of three life sentences deprived him of due process

          by allowing the term of imprisonment to exceed the

          maximum sentence imposed on a person by Chapter 12 of

          the Penal Code.13

                 Section 3.03 of the Penal Code gives a trial court the

          discretion to cumulate sentences. It does not expressly

          empower a judge to do by cumulation what he could not do

          by individual sentences. The legislature restricted the

          maximum for first-degree felonies to life, and any increase

          without proper and express notice by the legislature runs

          afoul of the Due Process Clause.14

                 Should this Court allow the appellate courts to

          examine these due process claims through the framework

          implicitly approved in Barrow, Petitioner and other litigants

          will be denied the chance for meaningful appellate review of

          the sentences that were actually imposed and that the


13   See Tex. Penal Code §12.32(a)
14   Id.
                                                                          14
defendants will actually serve. In other words, the

constitutional problems inherent in stacking multiple life

sentences evade meaningful review and are arbitrary and

capricious so long as Barrow can be used to shift the

perspective from the overall cumulative sentence to the

individual sentences themselves. This Court should grant

petition for discretionary review for briefing on the merits as

to the proper framework to be applied for these kinds of due

process claims.

b.   The current state of the law deprives criminal

defendants of the right against cruel and unusual

punishment by forestalling legitimate appellate

review of the sentence actually imposed.

     Building on his due process arguments above,

Petitioner contends that his cumulated sentences are grossly

disproportionate as opposed to any single sentence. This

point the appellate court failed to address in any depth,

citing the opinions in Stevens and Williamson. However,

Stevens dealt with the stacking of a twenty-year sentence on


                                                             15
       a previously-imposed sentence and thus failed to address the

       situation presented in the instant case – the stacking of

       three consecutive life sentences15 – and Williamson, a case

       that dealt with the stacking of life sentences, is not binding

       on this Court.16 Furthermore, Stevens hardly addressed the

       issue of stacking, noting that the issue had not even been

       properly preserved below17, and in Williamson the court

       noted that the type of sexual offenses against a child are

       those for which the legislature has explicitly allowed

       consecutive sentences.18 Yet this authority sidesteps and

       precludes review of Petitioner’s most salient point – that it is

       the cumulation of these sentences that exceeds that which

       the legislature has expressly provided for and in so doing the

       Petitioner’s right against cruel and unusual punishment was

       violated.

               This Court has not properly addressed the appropriate

       framework for analyzing the stacking of cumulative,


15 667 S.W.2d 534, 538 (Tex. Crim. App. 1984).
16 175 S.W.3d 522, 524 (Tex. App.—Texarkana 2005, no pet.).
17 667 S.W.2d at 538.
18 175 S.W.3d at 525.


                                                                     16
     multiple life sentences in the face of an 8th Amendment

     challenge to the cruel and unusual nature of the stacked

     sentences and the existence of disproportionality between

     the gravity of Petitioner’s offenses and the punishment

     assessed. Any framework that glosses over the cumulative

     effect of three life sentences and the practical effect that will

     have on Petitioner’s parole eligibility and the actual sentence

     that he will serve fails to give proper consideration to the 8th

     Amendment issues raised by the instant case. Current case

     law from this Court and the intermediate appellate courts

     precludes such meaningful review.

                    Conclusion and Prayer

     The Court should GRANT this petition, permit the parties to

fully brief the issue, and ultimately REVERSE this cause and

either REFORM the errant judgment reflecting concurrent

sentences or, alternatively, REMAND the case to the court of

appeals.




                                                                    17
Respectfully submitted,

OFFICE OF THE PUBLIC DEFENDER
WICHITA COUNTY, TEXAS

_/s/ Jarret Noll_______________
Jarret Noll
SBOT # 24081692
600 Scott Avenue, Ste. 204
Wichita Falls, Texas 76301
(940) 766-8199
Fax: (940) 716-8561




                              18
                   Certificate of Compliance

      I, the undersigned, certify that this document was produced
using Microsoft Word and contains 2,006 words, as determined by
the computer software’s word-count function, excluding the
sections of the document listed in Texas Rule of Appellate
Procedure 9.4(i)(1).

                                 __/s/ Jarret Noll_______________
                                 Jarret Noll


                     Certificate of Service

      On the 20th day of December, 2017, I served a copy of this
Petition for Discretionary Review on the parties listed below by
electronic service and that the electronic transmission was
reported as complete. My email address is
Jarret.Noll@co.wichita.tx.us.

     Jennifer Ponder
     Attorney for the State on Appeal
     900 7th Street, Third Floor
     Wichita Falls, Texas 76301
     Jennifer.Ponder@co.wichita.tx.us


                                 __/s/ Jarret Noll__________
                                 Jarret Noll




                                                                   19
J




                                                   Shivers v. State
                                  Court of Appeals of Texas, Second District, Fort Worth
                                               October 19, 2017, Delivered
                                                  NO. 02-16-00387-CR
    Reporter
    2017 Tex. App. LEXIS 9872 *
    DONALD RAY SHIVERS JR., APPELLANT v. sentences to run consecutively. In three points,
    THE STATE OF TEXAS, STATE            Shivers argues that the trial court abused its
                                         discretion by admitting certain victim-impact
    Notice: PLEASE CONSULT THE TEXAS evidence during the punishment hearing and by
    RULES OF APPELLATE PROCEDURE FOR assessing a punishment that violated due process
    CITATION OF UNPUBLISHED OPINIONS.    and due course of law and constituted cruel and
                                         unusual punishment. We will affirm.
    Prior    History: [*1] FROM THE 89TH
    DISTRICT COURT OF WICHITA COUNTY.
    TRIAL COURT NO. 55,034-C.            II. FACTUAL AND PROCEDURAL BACKGROUND

    Judges: PANEL: SUDDERTH, C.J.; WALKER                      Shivers dated Megan2 off and on for thirteen years.
    and KERR, JJ.                                              Together they had a child, Vanessa. When Vanessa
                                                               was seven, she told Megan that Shivers had made
    Opinion by: SUE WALKER                                     her perform oral sex on him. Megan

    Opinion        _                                           confronted [*2] Shivers, and although he initially
                                                               denied the abuse, he eventually admitted it to her.
                                                         Megan took Vanessa to Patsy’s House Children's
                                                         Advocacy Center where Vanessa made a detailed
    MEMORANDUM OPINION1                                  outcry to Shannon May, a forensic interviewer.3
                                                         Vanessa told May that the abuse started when she
                                                         was "four or five." Vanessa described several
    I. INTRODUCTION                                      instances in which Shivers had her perform oral sex
                                                         on him, and she described another instance in
    Appellant Donald Ray Shivers Jr. entered open
                                                         which Shivers's penis "touched her butt and [was]
    pleas of guilty to three counts of aggravated sexual
                                                         in her butt crack."
    assault of a child, waived his right to a jury, and
    elected to have the trial court assess his Todd Henderson, a police officer assigned to
    punishment See Tex. Penal. Code. AnnÿJ2.02l Patsy's House, was notified of the reported abuse.

                                                                _
    (West Supp. 2016). The State sought to enhance officer Henderson conducted a noncustodial
    Shivers’s punishment based on his prior felony interview of Shivers, and Shivers admitted to
    convictions, and it sought to cumulate his
    sentences. After a punishment hearing, the trial

     _
    COUrt found the enhancements true, sentenced lTo protect the anonymity of the victim in this case, we will use
    Shivers to three life sentences, and ordered the aliases to refer to some of the individuals named herein. See Tex. R.
                                                                Ann P 98 eme. 9 UUu)(3k McClendon i. Stale, 643 S II'.2d 936,
                                                                936 n I (Tex Crim Ano. fPiuwl On. I 1982).
    1 See   Tex R Ann. P. 47.4.                                 1Vanessa   was eight years old when May interviewed her.
                                                     2017 Tex. App. LEXIS 9872, *2

sexually assaulting Vanessa. Shivers claimed that                        A. Standard of Review
Vanessa initiated the contact when she "started
fondling" him as he was reading her a book before                        We review a trial court's decision to admit or
bed. Shivers stated that "he didn't stop her from                        exclude evidence under an abuse-of-discretion
doing it" and that "as time went on, [he] thought                        standard. Marline: State. 327 SAV.ld 727. 736
[he] would take it a little further." He admitted that                   (Tex. Crim. Ann. 2010). cert, denied, 563 U.S.
he had Vanessa perform oral sex on him on three                          1037, 131 S. Ct. 2966, 180 L. Ed. 2d 253 (2011).
separate occasions, including one occasion during                        Although there is no bright-line standard for
which he offered her a popsicle if she performed                         determining when victim-impact and character
oral sex on him. Shivers claimed that on another                         evidence is admissible, we must respect the
occasion, Vanessa tried "to [*3] sit" on his penis                       legislature's express intent to leave such decisions
and that it "might have went up her butt, butt hole."                    within the trial judge's sound discretion; we will not
He also admitted to performing oral sex on Vanessa                       disturb such a ruling on appeal unless it falls
on two occasions after she had taken her bath.                           outside the zone of reasonable disagreement.
Shivers was later arrested and charged with three                        Hmden v. Stale. 296 S.)V.3d 549. 553 (Tex. Crim.
counts of aggravated sexual assault of a child.                          APP. 2009).


ID. SHIVERS’S OBJECTION TO VICTIM-IMPACT                                 B. The Law
EVIDENCE                                                                 During the punishment phase of a trial, a trial court
In his first paint, Shivers argues that the trial court                  may admit any 1*4] matter it deems relevant to
erred by admitting victim-impact evidence from                           sentencing. 7c.v. Code Crim. Proc. Ann, art, 37.07.
                                        —
two sex-abuse counselors Susan Cardwell's
testimony regarding the effects of Shivers’s abuse
                                                                         8 3(a)(1) (West Supp. 2016); Lindsay v. State. 102
                                                                         S. IT.3d 223. 227 (Tex App. Houston [Nth Dist.l
                                                                         2003. net, re/'d). The circumstances of the offense
on Vanessa and Jennifer Edwards's testimony


                —
regarding the typical effects of sexual abuse on a
child victim over his objections.4
                                                                         are relevant to sentencing and may be considered
                                                                         by the trier of fact in determining the punishment to
                                                                         be assessed. Jacaroo v. Slate. l80S.iV.3d 793. 798
                                                                         (Tux. ADO —Haustun [14th Dist.l 2005. net, rel'd).
                                                                         This includes victim-impact evidence.3 Outside of
                                                                         the context of homicide cases, victim-impact
4 Prior to Cordwell1* testimony, the trial court granted Shivers's       evidence is evidence regarding "the physical or
request for o running objection to «ny victim-impact evidence            psychological effect of the crime on the victims
gleaned from Cardwell Shivers later asked for that same objection to
apply to Edwards’s testimony, yet he mode this request after Edwards
                                                                         themselves." Martin r. State. 176 S. IV. 3d 887. 903
hod already testified regarding the typical effects of sexual abuse on   (Tex App. Fort Worth 2005. no net.) (quoting
a child victim. Thus, it appears that Shivers has not preserved his      Lane r. State. 822 S.lV.2d 35. 41 (Tex. Crim. Ann.
objection to the victim-impact evidence gleaned from Edwards's           1991). cert, denied, 504 U.S. 920, 112 S. Ct. 1968,
testimony. See 7W. R. Ann. P. ,1,i t(a)tt) (requiring n timely
objection in order to preserve complaint on appeal); Winner y Stale.
iVo nj.n7-ntmjcft. 2tm T*r. M,n. t.rxis join. 2tm lit.

                            —
JJSASAt III *j (Tex. Arm. h'nrl Worth July JO,              net refj)
(mem. op., not designated for publication) ("Appellant did not ask
for his running objection to Officer Gonzales's testimony to apply to
                                                                         5 Shivers  addresses victim-impact evidence; he acknowledges that
                                                                         "(ijn this casef.) the evidence primarily dealt with victim[-]impact
                                                                         issues." Although he sometimes mentions victim-character evidence
all witnesses. ...    And Appellant failed to object when Daniel         along with victim-impact evidence, he docs not separately brief any
Rhodes testified about Appellant's statements in the home. Thus, he      contention concerning victim-character evidence. Consequently, to
failed to preserve His complaint as to that testimony.") Out of an       the extent Shivers raises any complaint regarding victim-character
abundance of caution, however, we will consider Shivers's running        evidence, we consider it as he briefed it—that is, as subsumed within
objection to Edwards's testimony as if it had been timely made.          the victim-impact argument and analysis.

                                                                                                                             Page 2 of 5
t                                          2017 Tex. App. LEXIS 9872, *4

    118 L. Ed. 2d 568 (1992)).                              masturbated excessively and that she was not on
                                                            track socially. Cardwell noted that she had
    Victim-impact evidence, including evidence that diagnosed Vanessa with post-traumatic stress
    the defendant should have foreseen or anticipated disorder.
    the particular effects of the offense on the victim, is
    relevant during the punishment phase "if the Edwards testified about the common characteristics
    factfinder may rationally attribute [such] evidence of sexual offenders and the process of grooming a
    to the accused's 'personal responsibility and moral child victim. She also testified about the potential
    culpability"' or blameworthiness. Havden. 296 effects that sexual abuse has on a child victim,
    S. It' 3d at 552 (quoting Salazar v. Slate. 90 S.W.3d including confusion, shame, depression, anxiety,
    330. 335 (Tux. Ciint. ADD. 2002)): Jackson u. State, guilt, excessive masturbation, dissociation, and
    33 SJV.3d 828. 833 (Tex. Crim. Ann. 2000). cert, post-traumatic stress.
    denied, 532 U.S. 1068, 121 S. Ct. 2221, 150 L. Ed.
    2d 213 (2001); Miller-El v. State. 782 S W.2d 892. to determining [*6] whether here the trial court as
    896 (Tex. Crim Ann 1990): Boone v. State. 60 the factfinder could have rationally viewed the
    S, IV.3d 231. 238 (Tex. Ann. Houston fl4th Dist.l victim-impact testimony of Cardwell and Edwards
    2001. net. ref’dL cert, denied, 537 U.S. 1006, 123 S. as bearing on Shivers's personal responsibility and
    Ct. 490, 1S4L. Ed. 2d 406 (2002).                       moral culpability for the offenses and whether
                                                            Shivers should have foreseen or anticipated the
    Even when relevant, victim-impact evidence may particular effect on Vanessa, we note that Shivers
    not be admissible if the probative value of the was Vanessa's father. He naturally had a position of
    evidence is substantially outweighed by the danger trust and authority over Vanessa. Shivers took
    of unfair prejudice. See Tex. R. Evid 403. When advantage of that position of trust and authority
    considering the admissibility of victim-impact the abuse started when he was putting her to bed,
    evidence, courts consider the following factors: (1) took place on other occasions after she had taken
                                                                                                            —
    the probative value of the evidence; (2) the her bath, and took place after Shivers had offered
     potential of the evidence to impress the trier [*5] her a popsicle to perform oral sex on him. We hold
    of fact in some irrational, but nevertheless indelible that Shivers, as Vanessa's father, should have
     way; (3) the time the proponent needs to develop anticipated that his sexual assaults, and the
     the evidence; and (4) the proponent’s need for the accompanying betrayal of his position of trust and
    evidence. Salazar. 90 S. IV. 3d at 336.                 authority, would have negative effects on Vanessa.
                                                            See. e.g., Stavinnha v. State. 808 S.lV.2d 76. 79
                                                             (Tex. Chin. ADD. i99i) (holding victim-impact
     C. The Trial Court Did Not Abuse Its Discretion evidence was admissible because priest "could
     by Admitting the Victim-Impact Evidence                easily have anticipated the impact his betrayal of
                                                            trust" would have on parishioner he had sexually
     During the punishment hearing, the State called two
                                                            assaulted). Because Shivers should have anticipated
     sex-abuse counselors as witnesses, Susan Cardwell
                                                             that his sexual assaults on Vanessa could have
     and Jennifer Edwards.
                                                             negative effects on her, Cardwell's and
     Cardwell testified that she treated Vanessa after the   Edwards's [*7] testimony regarding those negative
     abuse and observed symptoms consistent with those effects was relevant; their testimony went directly
     of a child who had been sexually abused. Cardwell t0 Shivers’s personal responsibility and moral
     noted that Vanessa showed signs of embarrassment culpability for the offense. See Havden. 296 S.lV.3d
     regarding the abuse, that she often dissociated by a( 652: Jackson. 33 S.lV.3d at 833: Boone. 60
     daydreaming, and that she was "hypervigilant" and S.lV.3d at 238.
     "avoidant." Cardwell relayed that Vanessa

                                                                                                  Page 3 of 5
                                                                                                                                1
                                                   2017 Tex. App. LEXIS 9872, *7

As to the admissibility of Cardwell's and Edwards's                    sentences as it corresponds to an offense. We agree.
testimony, we note that the evidence had significant
probative value in that it underscored Shivers's                       In Barrow * State' Barrow was charged
personal responsibility and moral culpability. We                      counts of Mxual 8553,111 of 8 child>         the W
                                                                       85515556(1 his Punishment at fifteen years’
also note that the evidence had only a slight
potential to impress the factfinder-which was a                        confinement for the first count and at twenty years’
trial judge in this case, rather than a jury-in some                   confinement for the second count. 207 SJV.3d 377,
irrational way. Cardwell's testimony regarding the                     37S (Tex. Crim. Ann. 2006). The trial court ordered
effect the sexual abuse had on Vanessa spans only a                    Barrow’s sentences to run consecutively. Id. On
handful of pages, while Edwards's testimony                            appeal, Barrow argued that the trial court’s decision
regarding the typical efTects sexual abuse has on a                    t0 cumulate his sentences violated due process, id
child victim spans only three pages. The State                         ‘MJ2MQ. In evaluating his due-process complaint,
needed this evidence to demonstrate the negative                       the court of criminal aPPea,s looked at the 5entence
effects of Shivers's sexual abuse because Vanessa                      for each offense- rather than the cumulative
did not testify in this case due to an agreement                       total [*9J of the sentences. Id at 379. The court
                                                                       noted            va,id 5entence within the statutorily
between the parties. We hold that the trial court did                        .that
                                                                       Prescfibed    range    was imposed as to each
not abuse its discretion by admitting Cardwell's and
Edwards’s testimony. See Martinez. 327 S.\V.3d at                                    ..
                                                                       conviction. . [And] [t]he decision to cumulate the
736', Salazar. 90S.W.3d at 336.                                             sentences did not raise the 'statutory maximum-
                                                                       punishment for either offense." Id.
We overrule Shivers's first point.
                                                                       Shivers pleaded guilty to three counts of aggravated
                                                                       sexual assault of a child, each of which was a first-
IV. SHIVERS'S PUNISHMENT DID NOT VIOLATE                               degree felony. See Tex. Penal Code Ann. $ 22.021.
DUE PROCESS OR DUE COURSE OF LAW                                       The punishment range for such an offense is life or
                                                                       not more than ninety-nine years or less than five
In his second point, Shivers argues that [*8] his                      years> ](J $ j2 32(aL Each of Shivers,s ,{fe
punishment exceeded the maximum permitted by                           sentences was thus Vithin the statutorily
due process and due course of law. Pointing to                         prescribed range" for each conviction, and the trial
section 12.32(a) of the penal code.6 Shivers argues                    court's decision to cumulate Shivers's sentences
that "as applied to him, the cumulation of his                         "did not raise the statutory maximum punishment
sentences amounts] to life without parole, and                         for [any of the three] offense[s]." Borrow. 207
thus, violate[s] a state-created right limiting first[-                S. \V.3d tu 379 (internal quotation omitted); see Tex.
jdegree sentences to life imprisonment." The State                     Penal Codc Am           3 flm)          Supp 2016)
counters that Shivers has not applied the proper                       (giving trial judges the ability to cumulate
framework in analyzing the due process and due                         sentences under certain circumstances).
course of law concerns of his sentences. The State
argues that the correct framework is to review each We overrule Shivers's second point.
individual sentence as it corresponds to an offense,
rather than to look at the cumulative total of the
                                                        V. SHIVERS'S PUNISHMENT DID NOT CONSTITUTE
                                                        CRUEL AND UNUSUAL PUNISHMENT
‘Srriinn I2j2/a) provides that “fain individual adjudged guihv of a    In his third point, Shivers argues that the
felony Of the lint degree shall be punished by imprisonment in the     cumulation of his sentences constitutes cruel and
Texas Department of Criminal Justice for life or for any term of not
more than 99 yean or less than 5 years." TV.r. Penal Code .4n>t !>
                                                                       unusual punishment because it is disproportionate
 IIJIM (West 20111                                                     to the crimes he committed. We will not disturb a
                                                                                                               Page 4 of 5
*>                                                     2017 Tex. App. LEXIS 9872, *9

     trial court's punishment ]*10] decision "absent a     unconstitutionally disproportionate for the offenses
     showing of abuse of discretion and harm." Jackson     for which he [*11] was convicted. See id. at 542-
     v. State. 680 S.W.2d S09, 814 (Tex. Crim. ADD.        43; see also Stevens r. Slate. 667 SAV.ld 534. 538
     1984). Generally, a sentence is not cruel, unusual,   (Tex. Crim. Aon. 1984 ) (holding cumulation of
     or excessive if it falls within the range of          sentences did not constitute cruel and unusual
     punishment authorized by a statute. Hammer v.         punishment). Further, even if we had determined
     State. 461 S.W.3d 301. 303-04 (Tex. ADD. Fort         that a disproportionality existed between the gravity
      Worth 2015. no net.) (citing Jordan v. State. 495    of Shivers's offenses and the punishments assessed,
     SAV.2d 949. 952 (Tex Crim Aon. 1973)). Even if a      there is no evidence in the record comparing this
     sentence falls within the statutory range for that    result with others in the same jurisdiction for this
     crime, however, it must be proportional to the        situation or with those imposed on defendants in
     crime. Solem v. Helm, 463 US 277. 290. 103 S Cl.      other jurisdictions who committed a series of
     3001. 3009. 77 L. Ed. 2d 637 (1983). "Outside the     similar offenses. Shivers has thus not shown that
     context of capital punishment, successful             the trial court abused its discretion by ordering his
     challenges to the proportionality of particular       sentences to run consecutively. See Williamson v.
     sentences have been exceedingly rare." Rummel r.
     Estelle. 445 U.S. 263. 272. WO S Ct. 1133. 1I3S.
                                                                                                         —
                                                           State. 175 S.W.3d 522. 525 (Tex. Apn. Texarkana
                                                           2005. no pel.) (holding defendant's punishment of
      63 L. Ed. 2d 382 (1980).                             three consecutive life sentences for three counts of
                                                           aggravated sexual assault of a child was not cruel
     In addressing a disproportionality complaint, courts and unusual punishment).
     first compare the gravity of the offense against the
     severity of the sentence. Moore v. State. 54 S.W.3d We overrule Shivers's third point.
     529, 542 (Tex. AvD.—Forl Worth 2001. pet, refd).
     If a court determines that the sentence is grossly
     disproportionate to the offense, it then looks at the VI. CONCLUSION
     evidence concerning sentences imposed on other Having overruled Shivers's three points, we affirm
     criminals in the same jurisdiction and sentences the trial court's judgment.
     imposed for commission of the same crime in other
     jurisdictions. Id. at 541-42.                         Is! Sue Walker
     Comparing the gravity of Shivers’s offenses against                   SUE WALKER
     the severity of his sentences, we conclude that,
                                                                           JUSTICE
     given the nature of the offenses and the punishment
     ranges, coupled with Shivers’s prior felony                           PANEL: 1*12] SUDDERTH, C.J.; WALKER and
     convictions,7 Shivers’s punishment of three                           KERR, JJ.
     consecutive      life     sentences     was     not
                                                                           DO NOT PUBLISH

                                                                           Tex. R. ADD. P. 47.2(b)
     TIn determining whether a sentence is grossly disproportionate, the
     reviewing court may consider the defendant's prior adjudicated and
     unadjudicated offenses. State >•. Sinwwn. 48R S.W 3d 3IN. 333 (Tex
                                                                           DELIVERED: October 19, 2017

                                                   —
     Crim. Apn. 2016). Here, Shivers had previously been convicted of
     possession or a controlled substance, a second degree felony. See
     Tex. Health it Safety Cade Ann. SJ8I.115 (West 2017). He had also
     been previously convicted of three counts of burglary of a vehicle,
                                                                            End of Document


     each a third-degree fetony. See Tc.x. Penal Code Ann S 30 04 (West
     2011). Shivers also had been previously convicted of criminal
     nonsupport, a state-jail felony. See Id. t> 25.05 (West 2011).

                                                                                                         Page 5 of 5
