Anthony John Carufel v. State ( 2006 )

Opinion filed December 14, 2006

Opinion filed December 14, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00188-CR

                                                    __________

                              ANTHONY JOHN CARUFEL, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 350th District Court

                                                          Taylor County, Texas

                                                   Trial Court Cause No. 7677-D

                                                                   O P I N I O N

The trial court convicted Anthony John Carufel, upon his plea of guilty, of the aggravated sexual assault of his severely disabled stepdaughter.  The trial court assessed punishment at confinement for sixty years.  We affirm.

                                                                  Issue on Appeal

In his sole issue on appeal, appellant contends that his sentence is grossly disproportionate to the offense. Therefore, appellant argues that the improper sentence violated his constitutional rights.

                                                              Standard of Review

The Eighth Amendment of the United States Constitution prohibits punishments that are Agrossly disproportionate@to the offense for which the defendant has been convicted. Harmelin v. Michigan, 501 U.S. 957 (1991); McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992); Bradfield v. State, 42 S.W.3d 350 (Tex. App.CEastland 2001, pet. ref=d); Hicks v. State, 15 S.W.3d 626 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); Hernandez v. State, 10 S.W.3d 812 (Tex. App.C Beaumont 2000, pet. ref=d); Dunn v. State, 997 S.W.2d 885 (Tex. App.CWaco 1999, pet. ref=d); Jackson v. State, 989 S.W.2d 842 (Tex. App.CTexarkana 1999, no pet.).  The reviewing court must first compare the gravity of the offense with the severity of the sentence.  Bradfield, 42 S.W.3d at 353.

                                                                     The Offense

The record before this court reflects that appellant first met the victim=s mother in 2000 or 2001 and that the couple married in August 2003.  Three months before the marriage,  the victim was struck by a Ford Bronco as she walked along a road with two friends. She was fourteen years old at the time. The victim was severely injured. She lost the ability to move her limbs, to speak, to eat, and to control her bladder or bowels.  Between twenty-five and thirty percent of her brain was Are-absorbed.@ A G-tube was inserted into her stomach to feed her.  The victim could only communicate by blinking her eyes when asked yes and no questions. However, her caregivers were able to determine from her facial expressions whether she was upset or in pain.

At the time of the sexual assault, the victim required constant care.  The family had special equipment in the home and received seventy hours of in-home nursing care a week.  On July 28, 2005, the victim=s mother voluntarily checked herself into the Abilene Psychiatric Center for treatment of depression leaving the seventeen-year-old victim in appellant=s care.

Early in the morning of July 30, 2005, the in-home care nurse noticed that the victim had some vaginal bleeding.  The victim was taken by ambulance to the hospital where a sexual assault exam was performed.  There was a laceration in her vagina, and bodily fluids were recovered.

When police officers first confronted appellant, he denied assaulting the victim and mentioned that there were two boys B one of whom was his son B that had been around the victim.  After he was informed that there would be DNA testing on the bodily fluids recovered from the victim, appellant gave a statement in which he admitted digitally penetrating the victim with two fingers.  Appellant further stated that he and the victim=s mother had not been intimate for Asome time@ and that he had begun to masturbate when he went into the victim=s room and removed her diaper.  He continued to masturbate with his right hand.  After he ejaculated, he inserted two fingers on his right hand into the victim=s vagina.  Appellant stated, AShe apparently woke up and had a look on her face. She [could not] talk and I didn=t say anything to her.@  Appellant described how he Acleaned@ the victim up, replaced her diaper, started her feeding pump, and left the room. Appellant told the morning nurse that the victim might be having some cramping and was having her period. Appellant stated that he said this to Atry and cover@ himself and that he then left for his job as a correctional officer at the Robertson Unit.

After the assault, male voices caused the victim=s heart rate to Askyrocket.@ The victim had night terrors, and her seizures increased in frequency and severity.  The victim would wake up, and her eyes would Abe silver-dollar size.@  When asked if she had had a bad dream, she would blink yes. When asked if the dream was about her accident, she would blink no.  When asked if her dream was about appellant, she would blink yes. The number of in-home nursing care hours was increased to eighty-five hours a week.

The record also reflects that, while appellant was awaiting trial on the assault, he burglarized a salvage yard and stole 600 pounds of copper.  Appellant cooperated with law enforcement officers and indicated that he had stolen the copper to Amake money just in case he went to prison.@

                                                                    The Sentence

Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2006) defines the offense of aggravated sexual assault and declares it to be a first degree felony. The punishment range for a first degree felony is confinement for life or a term of five to ninety-nine years and an optional fine not to exceed $10,000.  Tex. Pen. Code Ann. ' 12.32 (Vernon 2003).  The trial court assessed a sentence for confinement for sixty years B a term within the range of punishment authorized.

                                                                     Conclusion

The record does not support appellant=s contention that his sentence is grossly disproportionate.  Moreover, a sentence assessed within the range of punishment established by the legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield, 42 S.W.3d at 354.  Appellant=s issue is overruled.

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

December 14, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.