James Kenneth Olsen v. State ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00193-CR
JAMES KENNETH OLSEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st District Court
Harrison County, Texas
Trial Court No. 13-0315X
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
After James Kenneth Olsen was indicted in Harrison County for the offense of driving
while intoxicated, third or more, he entered an open plea of guilty and elected to have the trial
court determine punishment. Following the preparation of a presentence investigative report, the
trial court sentenced Olsen to five years’ confinement. Olsen’s motion for new trial was overruled
by operation of law.
On appeal, Olsen argues (1) that the sentence violates his Eighth Amendment protections
against cruel and unusual punishment and (2) that the trial court erred in considering his failure to
state that he suffered from an alcohol problem.
We affirm the trial court’s judgment because Olsen failed to properly preserve the issues
about which he complains on appeal.
I. Olsen Failed to Preserve his Argument Regarding a Cruel and Unusual Sentence
The record reflects that at the time of the punishment hearing, Olsen was in “extraordinary
pain” and could “hardly speak” because he suffered from cancer of the throat, larynx, and
esophagus; was still under a doctor’s care due to recent surgery; and was undergoing continuous
daily cancer treatment. In his first point of error, Olsen contends that although his sentence was
well within the range prescribed by statute, it still constitutes cruel and unusual punishment
because of his medical conditions.
To preserve error relating to the propriety and severity of punishment, including that the
sentence imposed constitutes cruel and unusual punishment, a defendant must object to his
sentence in the trial court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)
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(concluding appellant failed to preserve challenge under state constitution’s prohibition against
cruel and unusual punishment by failing to object in trial court); Rodriguez v. State, 917 S.W.2d
90, 92 (Tex. App.—Amarillo 1996, pet. ref’d) (“[N]othing is preserved for review because
appellant failed to raise the severity of his sentence when punishment was assessed or in a new
trial motion.”). Here, Olsen did not complain about the propriety or severity of his sentence at the
time it was imposed or in a motion for new trial. Therefore, we conclude that Olsen failed to
preserve this issue for our review. See TEX. R. APP. P. 33.1(a)(1)(A).
II. Olsen Failed to Preserve Error Regarding a Violation of his Fifth Amendment Rights
In his second and final point of error, Olsen argues that the trial court violated his Fifth
Amendment rights by “considering [Olsen’s] failure to state he suffers from an alcohol problem
when [he] did not testify.”
During the sentencing hearing, but prior to pronouncing sentence, the following colloquy
occurred between the trial court and Olsen:
THE COURT: . . . . Mr. Olsen, I don’t you know [sic] the thing that
caught my eye, other than the six DWIs, was the fact that you indicated that you
didn’t have a drinking problem and maybe you have addressed that issue right now.
I don’t know. One of my jobs is to protect the public and, you know, I understand
the health condition. I looked at the information that was provided with regard to
the programs that are there. I don’t know what -- I was going to ask you, but you
didn’t -- I don’t know if you even can talk. You got sentenced to three years how
much of that time did you do?
A [By Olsen] A minimum.
THE COURT: Okay.
Was that like within months you were out? That you didn’t --
because that was 11 years ago on the three years that you got for your --
A I have not been in trouble since.
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THE COURT: I understand.
A I have not had a drink. This was an isolated incident.
THE COURT: And Mr. Olsen I hear that every single time.
A I know.
THE COURT: That is not -- you are not the first person that is
telling me that.
A I understand.
The trial court then sentenced Olsen to five years’ confinement.
Not only did Olsen fail to object to the court’s consideration of the evidence, Olsen
answered the court’s questions without objection. Therefore, because Olsen failed to raise his
Fifth Amendment objection at trial or in a motion for new trial, he failed to preserve the issue for
our review. See TEX. R. APP. P. 33.1(a)(1)(A).
Olsen having failed to raise a properly preserved issue for our review, we affirm the trial
court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: May 15, 2015
Date Decided: May 22, 2015
Do Not Publish
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