Shivers, Donald Ray Jr.

• Court: Court of Appeals of Texas
• Decided: December 22, 2017
• Docket: PD-1278-17
• Status: Published

Opinion

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.

APPELLANT’S 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 Petitioner’s personal responsibility and moral culpability and thus relevant to Petitioner’s sentencing. ....................................................................... 5

a. The appellate court’s 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 court’s analysis failed to demonstrate a relationship between the “position of trust and authority” 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 Petitioner’s 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.—Texarkana 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 “went directly to Shiver’s personal responsibility and

moral culpability for the offense” and that each of Petitioner’s life

sentences was “within the statutorily prescribed range for each

conviction” and the trial court’s decision to cumulate Shivers’

sentences “did not raise the statutory maximum punishment for

any of the three offenses,” 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).

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 Petitioner’s personal responsibility and moral culpability

and thus relevant to Petitioner’s sentencing?

2. Did the appellate court use the wrong framework in

analyzing the issue of Petitioner’s 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 Petitioner’s personal responsibility and moral

culpability and thus relevant to Petitioner’s 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 defendant’s personal

responsibility and moral culpability.5 Stavinoha v. State has

extended such evidence to non-capital cases not as a “question of

logical relevance [but as a function] of policy.”6 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). 6 808 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 proponent’s need for the evidence.7

a. The appellate court’s 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 Petitioner’s

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

“position of trust or authority” 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 –

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 Petitioner’s personal

responsibility and moral guilt and therefore it cannot be

relevant to Petitioner’s sentencing.

Perhaps this is why the appellate court’s analysis of

the probative nature of the evidence is contained in one

conclusory, tautological sentence: “As to the admissibility of

Cardwell’s and Edward’s testimony, we note that the

evidence had significant probative value in that it

underscored Shivers’ personal responsibility and moral

culpability.” By failing to confront the nexus between the

proffered testimony and the Petitioner’s personal

responsibility and moral culpability, the appellate court

7 failed to make proper inquiry into the unfair prejudice of the

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 –

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 court’s analysis failed to

demonstrate a relationship between the “position of

trust and authority” 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 Petitioner’s position as the victim’s father,

he should have anticipated the negative effects of his acts

and thus the testimony of the experts went directly to

Petitioner’s personal responsibility and moral culpability for

the offense.

To the extent the appellate court was bound by this

Court’s 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 Petitioner’s 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

Stavinoha’s “position of trust and authority” 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 victim’s injury does not outrun the

perpetrator’s moral culpability9 makes sense in murder cases

where the defendant’s object is to cause the death of the

victim. It makes perfect sense, for example, for a murderer

to “anticipate” 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 “anticipation” 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

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 Petitioner’s 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

appellant’s 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. 12 Id. 13 Barrow, the appellate court failed to properly address the

constitutional magnitude of Petitioner’s 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 – the stacking of

three consecutive life sentences15 – 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 Petitioner’s most salient point – that it is

the cumulation of these sentences that exceeds that which

the legislature has expressly provided for and in so doing the

Petitioner’s 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). 16 175 S.W.3d 522, 524 (Tex. App.—Texarkana 2005, no pet.). 17 667 S.W.2d at 538. 18 175 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 Petitioner’s 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 Petitioner’s 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,

_/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 software’s 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 Patsy’s 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. AnnÿJ2.02l Patsy's House, was notified of the reported abuse.

_ (West Supp. 2016). The State sought to enhance officer Henderson conducted a noncustodial Shivers’s 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. SHIVERS’S 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. — two sex-abuse counselors Susan Cardwell's testimony regarding the effects of Shivers’s 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

— 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 —Haustun [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 «ny victim-impact evidence psychological effect of the crime on the victims gleaned from Cardwell Shivers later asked for that same objection to apply to Edwards’s 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.

— 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 it—that 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. ref’dL 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 — 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 proponent’s 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 Shivers’s 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 years’ 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 years’ 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 Barrow’s sentences to run consecutively. Id. On handful of pages, while Edwards's testimony appeal, Barrow argued that the trial court’s 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 ‘MJ2MQ. 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 Edwards’s 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 ‘Srriinn I2j2/a) provides that “fain 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. — 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.—Forl 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 Shivers’s 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 Shivers’s prior felony PANEL: 1*12] SUDDERTH, C.J.; WALKER and convictions,7 Shivers’s 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 >•. Sinwwn. 48R S.W 3d 3IN. 333 (Tex DELIVERED: October 19, 2017

— 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).

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