Shivers, Donald Ray Jr.
Date Filed2017-12-22
DocketPD-1278-17
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
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.
APPELLANTâS
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
Petitionerâs personal responsibility and moral
culpability and thus relevant to Petitionerâs
sentencing. ....................................................................... 5
a. The appellate courtâs 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 courtâs analysis failed
to demonstrate a relationship
between the âposition of trust and
authorityâ 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
Petitionerâs 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.âTexarkana 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 âwent directly to Shiverâs personal responsibility and
moral culpability for the offenseâ and that each of Petitionerâs life
sentences was âwithin the statutorily prescribed range for each
convictionâ and the trial courtâs decision to cumulate Shiversâ
sentences âdid not raise the statutory maximum punishment for
any of the three offenses,â 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 Petitionerâs personal responsibility and moral culpability
and thus relevant to Petitionerâs sentencing?
2. Did the appellate court use the wrong framework in
analyzing the issue of Petitionerâs 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 Petitionerâs personal responsibility and moral
culpability and thus relevant to Petitionerâs 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 defendantâs personal
responsibility and moral culpability.5 Stavinoha v. State has
extended such evidence to non-capital cases not as a âquestion of
logical relevance [but as a function] of policy.â6 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). 6808 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 proponentâs need for the evidence.7
a. The appellate courtâs 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 Petitionerâs
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
âposition of trust or authorityâ 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 â
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 Petitionerâs personal
responsibility and moral guilt and therefore it cannot be
relevant to Petitionerâs sentencing.
Perhaps this is why the appellate courtâs analysis of
the probative nature of the evidence is contained in one
conclusory, tautological sentence: âAs to the admissibility of
Cardwellâs and Edwardâs testimony, we note that the
evidence had significant probative value in that it
underscored Shiversâ personal responsibility and moral
culpability.â By failing to confront the nexus between the
proffered testimony and the Petitionerâs 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 â
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 courtâs analysis failed to
demonstrate a relationship between the âposition of
trust and authorityâ 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 Petitionerâs position as the victimâs father,
he should have anticipated the negative effects of his acts
and thus the testimony of the experts went directly to
Petitionerâs personal responsibility and moral culpability for
the offense.
To the extent the appellate court was bound by this
Courtâs 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 Petitionerâs 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
Stavinohaâs âposition of trust and authorityâ 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 victimâs injury does not outrun the
perpetratorâs moral culpability9 makes sense in murder cases
where the defendantâs object is to cause the death of the
victim. It makes perfect sense, for example, for a murderer
to âanticipateâ 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 âanticipationâ 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 Petitionerâs 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 Petitionerâs 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
appellantâs 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. 12Id.
13
Barrow, the appellate court failed to properly address the
constitutional magnitude of Petitionerâs 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 â the stacking of
three consecutive life sentences15 â 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 Petitionerâs most salient point â that it is
the cumulation of these sentences that exceeds that which
the legislature has expressly provided for and in so doing the
Petitionerâs 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). 16175 S.W.3d 522, 524
(Tex. App.âTexarkana 2005, no pet.). 17667 S.W.2d at 538
. 18175 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 Petitionerâs 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 Petitionerâs 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 softwareâs 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 Patsyâs 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. AnnĂżJ2.02l Patsy's House, was notified of the reported abuse.
_
(West Supp. 2016). The State sought to enhance officer Henderson conducted a noncustodial
Shiversâs 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. SHIVERSâS 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.
â
two sex-abuse counselors Susan Cardwell's
testimony regarding the effects of Shiversâs 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
â
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 âHaustun [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 ÂŤny victim-impact evidence psychological effect of the crime on the victims
gleaned from Cardwell Shivers later asked for that same objection to
apply to Edwardsâs 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.
â
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 itâthat 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. refâdL 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
â
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 proponentâs 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 Shiversâs 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 yearsâ
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 yearsâ
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 Barrowâs sentences to run consecutively. Id. On
handful of pages, while Edwards's testimony appeal, Barrow argued that the trial courtâs 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 âMJ2MQ. 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
Edwardsâs 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
âSrriinn I2j2/a) provides that âfain 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.
â
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.âForl 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 Shiversâs 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 Shiversâs prior felony PANEL: 1*12] SUDDERTH, C.J.; WALKER and
convictions,7 Shiversâs 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 >â˘. Sinwwn. 48R S.W 3d 3IN. 333 (Tex
DELIVERED: October 19, 2017
â
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