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 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 7th Street, Third Floor Wichita Falls, Texas 76301 [email protected] Jennifer Ponder Attorney for the State on Appeal Assistant District Attorney 7th Street, Third Floor Wichita Falls, Texas 76301 [email protected] Appellant Donald Ray Shivers, Jr. James Rasmussen Attorney for Appellant at Trial and on Appeal Chief Public Defender Scott Street, Suite 204 Wichita Falls, Texas 76301 [email protected] Jarret Noll Attorney for Appellant on Appeal Assistant Public Defender Scott Street, Suite 204 Wichita Falls, Texas 76301 [email protected] Honorable Charles Barnard Presiding Judge, 89th District Court of Wichita County 7th Street, Rm 300 Wichita Falls, Texas 76301 [email protected]

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.

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.

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).

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?

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

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.

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

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 – 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

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

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.

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.

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.

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

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

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

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,

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.

Respectfully submitted, OFFICE OF THE PUBLIC DEFENDER WICHITA COUNTY, TEXAS _/s/ Jarret Noll_______________ Jarret Noll SBOT # 24081692 Scott Avenue, Ste. 204 Wichita Falls, Texas 76301 (940) 766-8199 Fax: (940) 716-8561

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 [email protected].

Jennifer Ponder Attorney for the State on Appeal 7th Street, Third Floor Wichita Falls, Texas 76301 [email protected]

__/s/ Jarret Noll__________ Jarret Noll

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, 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 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 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 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 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 (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 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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