Timothy Arnold Card v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00198-CR
TIMOTHY ARNOLD CARD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury acquitted Appellant Timothy Arnold Card of continuous sexual abuse
of a young child but convicted him of three counts of aggravated sexual assault
of a child (causing the complainant’s sexual organ to contact Appellant’s mouth,
causing the complainant’s anus to contact Appellant’s mouth, and digitally
penetrating the complainant’s anus) and one count of indecency with a child by
1
See Tex. R. App. P. 47.4.
contact. Upon his plea of true to the enhancement count, the jury assessed his
punishment at ninety years’ confinement on each count and a fine of $5,000.
The trial court ordered the sentences in the final three counts to be served
concurrently with each other but stacked those concurrent sentences on top of
the sentence to be served for the conviction of aggravated sexual assault of a
child for penile-oral contact.
Appellant brings a single issue on appeal, arguing that the sentences of
ninety years on all four counts amounted to excessive and disproportionate
punishment for the actions of which he was convicted, as did the stacking of
three concurrent sentences onto the ninety-year sentence he received for penile-
oral contact. Because the sentences imposed on Appellant were within the
lawful range established by the legislature and because they did not violate the
Eighth Amendment prohibition against cruel and unusual punishment, we affirm
the trial court’s judgment.
During Appellant’s childhood, he was subjected to both physical and
sexual abuse. His father beat him with a belt and on one occasion broke
Appellant’s nose. Appellant’s cousin sexually abused him. Suffering from
depression, Appellant tried to commit suicide by hanging himself while he was a
child.
As a juvenile, Appellant was adjudicated delinquent for having committed
the aggravated sexual assault of a four-year-old neighbor. The child in that case
testified that Appellant had befriended him and lured him into his house where he
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took him to the bathroom, “forcefully guid[ed]” him to undress, and then touched
and licked the child’s penis while he put his finger in the child’s anus. Appellant
then took the child to the backyard and watched him urinate. Appellant was sent
to what was then called the Texas Youth Commission 2 and released when he
was 18 ½ years old.
In 2006, when Appellant was twenty-two years old, he was convicted of
failing to register as a sex offender. He served a fifteen-month sentence in the
State Jail Division. At some point, there was an allegation that Appellant had
molested a young relative in California, although he was never arrested or
charged for it.
In 2011, Appellant met the complainant, who was eight years old.
Appellant began sexually abusing the complainant that summer. Appellant told
the complainant not to tell anyone what he was doing to him, and the
complainant made no outcry for some time. After the complainant told his
mother, the police were called.
At trial, the complainant stated that the abuse occurred about twenty or
thirty times, and he described several specific instances of sexual abuse. The
2
See Tex. Fam. Code Ann. § 54.05(m) (West 2014) (replacing “Texas
Youth Commission” with “Texas Juvenile Justice Department”); In re D.J.P., No.
02-13-00156-CV, 2014 WL 173490, at *1 n.2 (Tex. App.—Fort Worth Jan. 16,
2014, no pet.) (mem. op.) (noting same).
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abusive acts he described were similar to the acts that Appellant had performed
as a juvenile on the four-year-old.
Appellant’s sole complaint on appeal is that his sentences were excessive
and disproportionate in their lengths and in the fact that the three concurrent
sentences of ninety years were to be served consecutively to the first sentence of
ninety years. He argues that the trial court’s order stacking the sentences
ensures that he will never be released from prison. He cites the evidence that he
presented at trial regarding his own physical and sexual abuse as a child as
mitigating evidence that should have been considered in assessing and imposing
his sentences.
The State points out that Appellant cites neither evidence nor authority
showing a comparison of his sentences with others in Texas or in other states.
The State also points out that punishment imposed within the statutory limits is
usually sufficient to defeat a challenge for excessiveness, citing Kim v. State. 3 In
determining disproportionality, we compare the gravity of the offense to the
severity of the sentence. 4 We hold that the sentences do not appear excessively
severe in light of the offenses as described by the complainant. We have before
us no evidence of sentences imposed upon other persons convicted of the same
3
283 S.W.3d 473, 475–76 (Tex. App.—Fort Worth 2009, pet. ref’d).
4
Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet.
ref’d).
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or similar offenses in this jurisdiction or in other jurisdictions. 5 We do have before
us, as did the trial court, both the mitigating evidence and Appellant’s criminal
history. As the State notes, the harm that Appellant has caused to the
complainant is grave, as was the harm that Appellant suffered from his abusers.
But during the punishment hearing, Appellant’s family and friends involved in the
church ministry in which he participated not only refused to believe that he was
guilty, which may not be that uncommon, but they expressed their intent to allow
him to continue to be around young children. Appellant’s mother made excuses
for his conduct, blamed others for it, and refused to believe the relative’s outcry.
Frankly, as a society we do not appear to know what to do with repeat
offenders. While we consider some repeat offenders mere nuisances because
the degree of harm they inflict is not perceived as great by the majority of people
in our society, we are afraid of sex offenders. The violent sex offender instills
terror. The stealthy predator who preys on children reinforces our fear that we
cannot protect those we hold dearest. When a predator repeats abuse he
himself suffered as a child, it reminds us of the depth of damage such a predator
can inflict on our children. Such mitigating evidence is a two-edged sword. The
punishment range established by the legislature and the sentence imposed by
this jury reflect our society’s conviction that we have no answer at this point to
5
See Robertson v. State, 397 S.W.3d 774, 776 (Tex. App.—Houston [14th
Dist.] 2013, no pet.).
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the question of how to prevent recidivism other than to isolate the offender from
future victims.
We have examined the record of the trial and of Appellant’s motion for new
trial. Although Appellant requested a hearing on his motion for new trial, the trial
judge specifically wrote on the bottom of the motion that he was taking no action.
Consequently, we do not know what specifically Appellant sought to prove in his
motion for new trial complaining of the excessiveness of the sentence. He does
not, however, complain of the denial of his requested hearing, nor has he asked
us to abate his appeal to allow him to present the evidence he would have
presented in his motion for new trial.
Based on the record before this court, we hold that there is no evidence of
disproportionality or excessiveness of the sentences or of the stacking order. We
overrule Appellant’s sole issue and affirm the trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
WALKER and MCCOY, JJ., concur without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 19, 2014
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