Jake Henry Oglesby v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00002-CR
JAKE HENRY OGLESBY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 52nd District Court
Coryell County, Texas1
Trial Court No. 13-21767, Honorable Trent D. Farrell, Presiding
September 10, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Jake Henry Oglesby, pleaded guilty to the offense of aggravated
sexual assault of a child.2 The offense is a first-degree felony.3 Pursuant to a plea
agreement, appellant received ten years’ deferred adjudication. Subsequently, the
State filed a motion to adjudicate appellant guilty. After hearing the evidence, the trial
1
Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Tenth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
2
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii) (West Supp. 2014).
3
See id. § 22.021(e) (West Supp. 2014).
court adjudicated appellant guilty of aggravated sexual assault of a child. At the
conclusion of the punishment hearing, the trial court sentenced appellant to 40 years in
the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). On
appeal, appellant contends that his sentence is: (1) cruel or unusual under the Texas
Constitution, (2) cruel and unusual under the Eight Amendment to the United States
Constitution, and (3) grossly disproportionate. Disagreeing with appellant, we will
affirm.
Factual and Procedural Background
Appellant does not contend that his plea was entered involuntarily, nor does he
contend that the evidence was insufficient to support the trial court’s decision to
adjudicate him guilty of the offense. Accordingly, our review of the factual and
procedural background will be very brief and narrowly focused.
At the hearing on the issue of punishment, appellant offered the testimony of
William Lee Carter, Ed.D. Dr. Carter had been appointed by the trial court, at the
request of appellant’s trial counsel, to do a psychological evaluation of appellant.
During Dr. Carter’s testimony, it was explained that appellant had a very abnormal and
troubled life. Appellant’s mother and father divorced when appellant was quite young.
He had been sexually and physically abused by his father during visitation following the
divorce, and this situation ultimately led to his removal from the home at age 10.
Appellant spent the next six years in the care of the State of Texas. During this time,
appellant lived in a shelter, one psychiatric hospital, and two different residential
treatment facilities. Upon release from State care, appellant moved back in with his
mother and younger brother.
2
Appellant’s life in his mother’s home was described as chaotic. Appellant did
obtain a high school diploma but, the record indicates, that he spent his high school
years in a self-contained unit for students who were deemed to have significant
emotional problems.
Dr. Carter opined that appellant was neither able to form any type of healthy
attachments to people, nor was appellant able to control any internal impulses. Dr.
Carter ultimately diagnosed appellant with reactive attachment disorder and attention
deficit hyperactive disorder, impulse type.
However, Dr. Carter further opined that appellant would have a high likelihood of
recidivism. Ultimately, Dr. Carter testified that the best option for appellant was
incarceration.
The trial court, after hearing the punishment evidence, sentenced appellant to
confinement in the ID-TDCJ for 40 years. Appellant filed a motion for new trial, in
which, he raised the issues of cruel and unusual punishment and disproportionate
sentence. The motion was overruled by operation of law.4 This appeal followed.
On appeal, appellant now contends that the sentence violated the Texas
Constitution prohibition against cruel or unusual punishment. See TEX. CONST. art. 1, §
13. Appellant also contends that the sentence violates the prohibition of the United
States Constitution regarding cruel and unusual punishment. See U.S. CONST. amend.
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The clerk’s record contains an order setting the motion for new trial for a hearing; however,
there is no order overruling the motion in the clerk’s record, and the trial court’s docket sheet contains no
entry regarding a hearing on the motion for new trial.
3
VIII. Finally, appellant contends that the sentence is grossly disproportionate.
Disagreeing with appellant, we will affirm.
Standard of Review
Appellant contends that we should review this matter under the abuse of
discretion standard associated with the denial of a motion for new trial. See Weaver v.
State, 999 S.W.2d 913, 916 (Tex. App.—Waco 1999, no pet.). Further, he maintains
that we should review the constitutional questions de novo. See Moore v. State, 169
S.W.3d 467, 474 (Tex. App.—Texarkana 2004, pet. ref’d).
On the other hand, the State contends that the issue is one of whether the trial
court abused its discretion in sentencing. See Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984) (en banc). Further, the State posits that, if the sentence is within
the statutorily prescribed guidelines, the sentence is reviewable under the gross-
disproportionality standard. See Jarvis v. State, 315 S.W.3d 158, 162 (Tex. App.—
Beaumont 2010, no pet.) (citing Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim.
App. 2006)).
We will apply the de novo standard to the question concerning cruel and unusual
punishment. If the trial court’s sentence was proper under that standard, then the trial
court did not abuse its discretion in assessing the sentence. See Montgomery v. State,
810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc). As to the question of whether
the sentence was grossly disproportionate, we will apply the standard suggested in
Jarvis v. State. See Jarvis, 315 S.W.3d at 162.
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Cruel or Unusual Punishment
Both the United States and Texas Constitutions prohibit cruel and/or unusual
punishment. The United States Constitution, via the Eighth Amendment, states that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishment inflicted.” U.S. CONST. amend. VIII. This provision is made
applicable to the states by virtue of the Fourteenth Amendment. See U.S. CONST.
amend. XIV.; Furman v. Georgia, 408 U.S. 238, 239, 92 S. Ct. 2726, 33 L. Ed. 2d 346
(1972). The Texas Constitution states the prohibition in the following manner:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual
punishment inflicted.” TEX. CONST. art I, § 13. The linguistic difference is in the use of
the conjunctive “and” in the United States Constitution and the disjunctive “or” in the
Texas Constitution. Appellant posits that this linguistic difference means that the Texas
Constitution provides more protection to appellant than that offered by the United States
Constitution.
In this regard, the law of the State of Texas is against appellant. The Texas
Court of Criminal Appeals has determined that there is no significant difference in the
protection afforded by either constitution. See Cantu v. State, 939 S.W.2d 627, 645
(Tex. Crim. App. 1997) (en banc) (citing Anderson v. State, 932 S.W.2d 502, 509 (Tex.
Crim. App. 1996) (en banc), and holding that capital punishment is neither cruel nor
unusual for purposes of the Texas Constitution); see also Valdez v. State, No. 10-12-
00410-CR, 2014 Tex. App LEXIS 1375, at *5 (Tex. App.—Waco Feb. 6, 2014, pet. ref’d)
(mem. op., not designated for publication); Duran v. State, 363 S.W.3d 719, 723 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d). Accordingly, we will analyze appellant’s
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constitutional contentions regarding cruel and unusual punishment together and not
under any separate analysis. See Ajisebutu v. State, 236 S.W.3d 309, 311 n.2 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d) (recognizing that, had appellant’s issue been
properly preserved, the courts in Texas have declined requests to review the federal
and state issues separately).
When punishment is assessed within the legislatively prescribed limits, Texas
courts have held that such punishment does not violate the constitutional prohibitions
against cruel and unusual punishment. See Valdez, 2014 Tex. App LEXIS 1375, at *7;
see also Duran, 363 S.W.3d at 724. As stated above, we will not assume the United
States Constitutional prohibition against cruel and unusual punishment means anything
differently. See Duran, 363 S.W.3d at 723-24 (citing Muniz v. State, 851 S.W.2d 238,
251–52 (Tex. Crim. App. 1993) (en banc), and Heitman v. State, 815 S.W.2d 681, 690
n.23 (Tex. Crim. App. 1991) (en banc)).
The record before us shows that appellant was charged with a first degree-felony
offense. A first-degree felony is punishable by a term of confinement for life or for any
term of not more than 99 years or less than 5 years. See TEX. PENAL CODE ANN. §
12.32(a) (West 2011). Appellant was sentenced to 40 years incarceration in the ID-
TDCJ. His sentence was less than one-half of the statutory maximum. See id.
Accordingly we cannot and will not say that such a sentence is cruel and unusual. See
Valdez, 2014 Tex. App LEXIS 1375 at *7; see also Duran, 363 S.W.3d at 724.
Appellant’s first two issues are overruled.
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To convince the Court that appellant’s sentence violates the prohibitions against
cruel and unusual punishment, appellant spends a great deal of time reminding the
Court of appellant’s mental illness. Appellant then goes through an extensive
discussion about the dichotomy his case presents between treatment and incarceration.
While we understand, and are somewhat sympathetic to, appellant’s personal plight, the
issues raised are more a concern for the legislature in the area of funding mental health
alternatives. They do not, however, render his sentence cruel or unusual.
Grossly Disproportionate Sentence
Appellant’s final issue contends that the sentence he received is grossly
disproportionate. A legislatively prescribed sentence is subject to a limited review under
the Eighth Amendment prohibition against cruel and unusual punishment if the sentence
can be held to be grossly disproportionate to the gravity of the offense. See Graham v.
Florida, 560 U.S. 48, 58–60, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Valdez, 2014
Tex. App LEXIS 1375, at *11–12; Winchester v. State, 246 S.W.3d 386, 388 (Tex.
App—Amarillo 2008, pet. ref’d).
The United States Supreme Court addressed the issue of proportionality of
sentences in Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637
(1983). Under the test laid down in Solem, the following objective criteria was set forth:
(1) the gravity of the offense and the harshness of the penalty; (2) the sentence
imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for
commission of the same crime in other jurisdictions. Id. at 292. However, Solem was
modified by the courts ruling in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,
7
115 L. Ed. 2d 836 (1991). Harmlein was a plurality opinion in which two justices
rejected the Solem proportionality test altogether, see id. at 962; three justices said
there was a narrow proportionality principle contained within the Eighth Amendment,
see id. at 997; and four justices said that, in essence, Solem was correctly decided.
See id. at 1027. Following Harmelin, the Fifth Circuit Court of Appeals subsequently
adopted the modified Solem test. See McGruder v. Puckett, 954 F.2d 313, 316 (5th
Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992). Under the
McGruder analysis, the initial inquiry is a comparison of the gravity of the offense
against the severity of the punishment received. See id. Only when the court finds that
the sentence is grossly disproportionate to the offense does the reviewing court apply
the final two prongs of the Solem test. See id. The 10th Court in Waco and this Court
have applied the principles set forth in McGruder. See Valdez, 2014 Tex. App LEXIS
1375, at *13–14, Winchester, 246 S.W.3d at 390.
When we apply these principles to the case before us, the first consideration is
the gravity of the offense. The record shows that the victim of appellant’s aggravated
sexual abuse was a six-year-old male child. The victim was a cousin of appellant and
was described as being somewhat slower developing. The record further demonstrates
that appellant was 22 years old at the time of sentencing. The range of punishment was
up to life or any period of confinement of not more than 99 years or less than 5 years.
See TEX. PENAL CODE ANN. § 12.32(a). Further, the psychologist, Dr. Carter, testified
that there was a high probability of appellant reoffending. In light of the 40-year
sentence being less than one-half of the maximum, we do not find the appellant’s
sentence to be grossly disproportionate to the offense. See Valdez, 2014 Tex. App
8
LEXIS 1375, at *13–14, Winchester, 246 S.W.3d at 390. Because of our finding on the
threshold issue, we need not address the final two prongs of the Solem analysis. See
Valdez, 2014 Tex. App LEXIS 1375, at *13–14, Winchester, 246 S.W.3d at 390. We
overrule appellant’s third issue.
Conclusion
Having overruled appellant’s issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
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