Scott Allen Cleary v. State

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Scott Allen Cleary

Appellant

Vs.                   No. 11-03-00051-CR B Appeal from Dallas County

State of Texas

Appellee

The trial court convicted Scott Allen Cleary, upon his plea of guilty, of the aggravated sexual assault of his five-year-old daughter by contacting and penetrating her sexual organ with his sexual organ.  While the State made a recommendation as to punishment, the record reflects that a plea bargain agreement was not reached.  The trial court assessed appellant=s punishment at confinement for 40 years and a $3,000 fine.  We modify the judgment and affirm.

In his sole point of error on appeal, appellant complains that the trial court abused its discretion in assessing punishment.  Appellant contends that, while his 40-year sentence is within the range of confinement authorized by law,^[1] the trial court should have given him a Achance for rehabilitation through a deferred adjudication community supervision.@

It was undisputed that appellant had penetrated his daughter=s sexual organ with his sexual organ and that he began this sexual activity on his daughter when she Awas about two-and-a-half years old, right after she had become potty trained.@  Appellant=s younger sister testified at the punishment stage that appellant had sexually abused her for about three years while they were growing up.  She stated that the abuse usually occurred on Monday nights when their mother was at Bible study and their father would be at home.  Appellant was 13 or 14, and she was in the first grade when the abuse began.  Appellant would come into her room; take off her clothes; fondle her breasts, her crotch, her arms, and her legs; and insert his fingers in her vagina.  The abuse ended when she was in the third grade.  One night, a girlfriend was spending the night.  Appellant sexually assaulted his sister and then went around to the side of the bed where her friend was sleeping.  When appellant tried to abuse her  friend, the friend woke up and asked appellant what he was doing to her.  Appellant, who was 15 or 16 at the time, ran off.  The girls told appellant=s mother, and the mother made appellant apologize.  Appellant=s sister also testified that, when she suspected that he was abusing his daughter, she  became angry and feared for her niece=s safety.

Kara Miller testified that, one night when she was in the third grade and was spending the night with appellant=s sister, she felt a hand reaching down her pajama bottoms.  Miller was stunned  to find appellant kneeling beside the bed.  Miller said that she grabbed appellant=s curly hair, looked at him, and told him to get away.  She told appellant=s sister, and the two girls talked to appellant=s mother.  Appellant=s mother made him apologize.

Both Miller and appellant=s sister testified how their experiences with appellant had affected their lives.  Appellant=s sister also testified that, when as an adult she confronted him, appellant told her:  AGet over it.  It happened a long time ago.  You need to forgive me.  I=ve forgiven myself and I=m a changed man.@  Appellant told her this during the time period that he was sexually abusing his daughter.  Appellant=s sister, Miller, and appellant=s younger brother testified that they each believed that appellant should be confined to prison.

Mack M. Tomlinson testified that he was a chaplain and a pastor in Denton, Texas. Tomlinson had been counseling appellant for the four months prior to trial and had found appellant to be very honest and Avery, very repentant and transparent.@  In his opinion, appellant could Adefinitely be rehabilitated and helped.@  Tomlinson further stated that, in his 28 years of counseling, he had never dealt with anyone more honest and forthright than appellant.  However, Tomlinson stated that he was unaware that appellant had penetrated his daughter.

Bill Bruner testified that he was the owner of ADAPT Healthcare.  At the time of trial, ADAPT Healthcare was conducting sex-offender counseling and treating 90 sex offenders.  Appellant had contacted Bruner about the sex-offender program two months before he entered his plea of guilty.  Bruner was Ashocked@ because, while appellant had not yet been convicted, he was admitting his behavior.  Bruner testified that most offenders maintain their innocence even after conviction.  Appellant had been attending weekly sessions for two months before he entered his guilty plea and had completed all of the assignments.  Bruner felt that appellant could be successfully treated in the program.

John Michael Cleary, appellant=s father, testified that he did not become aware that appellant was sexually abusing his daughter (appellant=s sister) until after the abuse stopped.  Cleary stated that he did not seek treatment for appellant at that time.  Cleary further testified that, when he was 13, 14, and 15, he fondled three of his sisters (appellant=s aunts).  Cleary stated that he did this on  Aregular occasions@ and that the abuse occurred over a three to five year period of time.  He did this Ato find out more about the opposite sex.@  Cleary stated:  AI got into a process of starting to masturbate at an early age and that wasn=t gratifying enough to me and my sisters were available to me.@  After he had been married to appellant=s mother for seven years, Cleary stated that he had the Aopportunity@ to do the same thing to his wife=s sisters.  Cleary testified that he believed his sexual contact with his three younger sisters became consensual because they would Amake themselves available@ to him.  However, Cleary stated that they never Avoluntarily@ came and asked him to do Athis@ to them.  Cleary also believed that appellant=s daughter was making herself available to appellant.  He stated that the five-year-old victim Awould come to her father and seek to be touched.@  Cleary asked the trial court to place appellant on deferred adjudication with the understanding that appellant would receive counseling.

The trial court stated that it was unable to find, as TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 5 (Vernon Supp. 2003) requires, that placing appellant on deferred adjudication community supervision was in the best interest of the victim, his daughter.  The trial court then proceeded to find appellant guilty and imposed a sentence of confinement for 40 years and a $3,000 fine.

Sentences assessed within the range of punishment authorized by the legislature will not be disturbed on appeal unless there is an abuse of discretion.   Jackson v. State, 680 S.W.2d 809, 814 (Tex.Cr.App.1984); Salinas v. State, 9 S.W.3d 338, 340 (Tex.App. - San Antonio 1999, no pet=n); Flores v. State, 936 S.W.2d 478 (Tex.App. - Eastland 1996, pet=n ref=d); see Buerger v. State, 60 S.W.3d 358, 363 (Tex.App. - Houston [14th Dist.] 2001, pet=n ref=d); Ramirez v. State, 36 S.W.3d 660, 667 (Tex.App. - Waco 2001, pet=n ref=d).  The sentence is within the authorized range and is supported by the record.  The trial court did not abuse its discretion.  The sole point of error is overruled.

The judgment of the trial court is modified  to reflect that a $3,000 fine was assessed and that a plea bargain agreement was not reached.  As modified, the judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

November 6, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]The offense of aggravated sexual assault of a child under the age of 14 is defined by TEX. PENAL CODE ANN. ' 22.021 (Vernon 2003) and is a first degree felony.  TEX. PENAL CODE ANN. ' 12.32 (Vernon 2003) provides that the punishment for a first degree felony is confinement for a term of not less than 5 years and not more that 99 years or for life.  An optional fine not to exceed $10,000 is also authorized.