## NO. 12

- 21

- 00218 -CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

VOLLIE EARL HENRY , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 159TH

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION Vollie Earl Henry appeal s his two convictions for aggravated sexual assault of a child . In
three issue s , Appellant argues that his convictions and sentences and the t rial court’s cumulation
order violate his right against double jeopardy and his sentenc e s are grossly disproporti onate t o the offenses and constitute cruel and unusual punishment. We modify and affirm as modified

.

B ACKGROUND Appellant was charged by indi ctment wit h two counts of aggravated sexual assault of a
chil d—o ne by penetration of the child’s mouth and one by penetration of her sexual organ

. He pleaded “ not guilty ” to the charge s, and the matter proceeded to a jury trial. At trial, the evidence sh owed that Appellant barricad ed his six or seven

- year
- old niece in
her bedroom while her mother was participating in church choir practice in another room and threatened to kill her and her family if she told anyone what he was about to do

. He forced his

p enis into her mouth and then her vagina while holding a pillow over her face as she cried and called out for help

. Ultimately, the jury found Appellant “guilty” of the charges and assessed his punishment

at imprisonment for life and a $10,000.00 fine in e ach case

. The trial court ordered that the sentences be served consecutively. This appeal followed.2 D OUBLE J EO PARDY Appellant’s first issue is whether his conviction s and sentences violate his state and federal right s against double jeopardy. His second issue is whether the trial court’s cumulation
order violates those rights. He addresses both issues in a singl e argument. Appellant contends that his convictions, sentences, and sentence cumulation constitute multiple punishments for the same offense i n violation of the Fifth Amendment and Article I
Section 14 of the Texas Constitution. He contends this is so b ecause the record shows the acts

w ere perpetrated in a single criminal episode o r transaction against the same victim on the same day in violation of the same penal provision. Appellant acknowledges that his position is contrary to current case law but ar gues nonetheless that we should apply the long-abandoned carving doctrine or “ same transaction test ” here. We decline to do so.
The Double Jeopardy Clause of the United States Constitution provides that no person shall “ be subject for the same offence to be twice put in jeopardy of life or limb .” U.S. C ONST

. amend. V. Similarly, the Texas Constitution provides that “ [n]o person, for the same o ffense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the

sa me offense, after a verdict of not guilty in a court of competent jurisdiction .” T EX

. C ONST

. art. 1, § 14. The two clauses provide substantially identical protections. Ex parte Mitchell , 977 S.W.2d 575, 580 (Tex. Crim. App. 1997)

. They prohibit (1) a sec ond prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after convic tion, and (3) multiple punishmen ts for the same offense. Lopez v. State , 108 S.W.3d 2 9 3, 295

- 96 (Tex. Crim. App. 2003). A double jeopardy clai m generally must be raised in the trial court to preserve error for appellate revi ew. Gonzalez v. State , 8 S.W.3d 640, 642 (Tex. Crim. App. 200 0). However, such a claim may be raised for the first time on appeal when the undisputed facts show a double je opardy violation is clearly apparent on the face of the record and enforcement of the usual rules of procedural default serves no legitimate sta te interest. Id. at 643. Here, Appellant was charged
in the same indictment with two counts , and he claims that the conduct alleged in the counts constitute s the same offense for double jeopardy purposes. Because we can determine this question from the face of the record, and enforcement of the usual procedural default rules would serve no legitimate s tate intere st, we will address the issue. See Rangel v. State , 179 S.W.3d 64,
70- 71 (Tex. App .— San Antonio 2005, pet. ref’d) (addressing unpreserved doubl e jeopardy3 qu estion of whether one count was lesser

- included of another because error would be apparent
on face of record and enforcement of default rules would serve no legitimate state purpose)

. Section 22.021 of the Texas Penal Code in pertinent part p rovides the following:

(a) A person commits an offense:
(1) if the person:

. . . . (B) regardless of whether the person knows the age of the child at the time of the offense, intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a chil d by any means;
(ii) causes the penet ration of the mouth of a child by the sexual organ of the actor;
(iii) causes the se xual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(iv) causes the anus of a chi ld to contact the mouth, anus, or sexual organ of another person, including the actor; or
(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and
(2) if:

. . . . (B) the victim is younger than 14 years of age [.]

T EX

. P ENAL C ODE A NN

. § 22.021( a)(1)(B) , (a)(2)(B) ( West 2019 )

. Section 22.021 is a conduct

oriented statute that uses the conjunctive “or” to distinguish and separate different conduct. Vick
v. State , 991 S.W.2d 830 , 833 (Tex. Crim. App. 1999). It s various sections specifically define sexual conduct in ways that usually require different and distinct acts to commit. Id. These considerations led the court of criminal appeals to conclude the legislature intended that each separately described condu ct constitutes a separate statutory offense. Id. In this case, different conduct was charged in separate counts of the indictme nt as separate offenses. Appellant was charged with penetration of the child’s sexual organ under
sub section (i) and penetrati on of the child’s mouth under sub section (ii). The penetration of the child’s sexual organ clearly required a sep arate and distinct act from the penetration of her mouth4 and constitutes a separate and distinct statutory offense , despite the fact both are violations of a single statute. See id. Our determination that the two counts allege violations of separate and distinct statutory aggravated sexual assault provisions and those alleged offenses involved separate and distinct acts ends the double jeopardy inquiry. See id. Nevertheless, Appellant urges us to apply the carving doctrine , specifically the “ same
transac tion test ,” and hold that the two counts constitute the same offense for double jeopardy

purposes. The court of criminal appeals ab andoned the carving doctrine, including the “same transaction” analysis , in Ex parte McWilliams , 634 S.W.2d 815, 822-23 (T ex . Crim. App. 1980). As an intermediate appellate court , we lack the authority to overrule an opinion of the court of criminal appeals. Stat e v. DeLay , 208 S.W.3d 603, 607 (Tex. App .— Austin 2006 ), aff’d sub

nom ., State v. Colyandro , 233 S.W.3d 8 70 (Tex. Cr im. App. 2007). Because Appellant’s convictions, sentences, and cumulation of sentences do not violate his double jeopardy right s under current mandatory authority, we overrule his first and second issues.

C RUEL AND U NUSUAL P UNISHMENT In Appellant’s thi rd issue, he argues that his punishment is grossly disproportionate and
constitute s cruel and unusual punishment in violation of the United States and Texas
Constitutions

. He contends that the assessment of two consecutive life sentence s is the
function al equivalent of life without parole and we should extend the United States Supreme
Co urt’s holding in Miller v. Alabama 1 —t hat the Eighth Amen dment prohibits automatically sentencing a juvenile defendant to life without parol e—to prohibit the sentencing of a defendant
to consecutive life sentences wh en the offenses arose from the same transaction

. We d ecline to do so. First, b efore a complaint may be presented for appellate review, the record must show that it was made to the trial court by a timely reques t, objection, or motion. T EX

. R. A PP

. P. 33.1( a)(1). An appellant fails to preserve error by failing to object when he has the opportunity.
Burt v. State , 396 S.W.3d 574, 577

- 78 (Tex. Crim. App. 2013). A sentencing issue may be preserved by objecting at t he punishment hearing, or when the sentence is pronounced. Id. at
577. An appellant may raise a sentencing issue for the first time in a m otion for new trial only if
he did not have an opportunity to object during the punishment hearing. Id. at 577 n.4.

1 567 U.S. 460, 465, 132 S. Ct. 2455, 2460, 183 L. Ed. 2d 407 (2012).5 In this case, Appellant did not object at the punishment hearing when his sentence s and
their cumulation w ere pronounced. Because Appellan t had the opportunity to object to his

sentence s and their cumulation at the punishment hearing and failed to do s o, we conclude that he failed to preserve t his issue for our review. See T EX

. R. A PP

. P. 33.1( a)(1); Burt , 396 S.W.3d
at 577

- 78. Furthermore, even if Appellant preserved his issue, we could not grant him relief because
his sentence does not constitute cru el and unusual punishment

. The United Sta t es Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicte d.” U.S. C ONST

. amend. VIII. This provision was mad e applicable to
the st ates by the Due Process Clause of the Fourteenth Amendment. Meadoux v. State , 325 S.W.3d 189, 193 (Tex. Crim App. 2010 ). Similarly, t he Tex as Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or u nu sual punishment inflicted.” T EX

. C ONST

. art. 1, § 13. The difference between the Eighth Amendment’s “cruel and unusual” phrasing and the T exas Constitution’s “cruel or unusual” ph ra sing is insignificant. Cantu v. State , 939 S.W.2d 627, 645 (Tex. Crim. A pp. 1997). The legislature is vested with the power to define crimes and prescribe penalties. See
Davis v. State , 905 S.W.2d 655, 664 (T ex. App

. — Texarkana 1995, pet. r ef ’ d); see also Simmons
v. State , 944 S.W.2d 11, 15 (Tex. App

. — Tyler 1996, pet. r ef ’ d)

. Courts have repeatedly held that punishment falling within the limits prescribed by a valid statute is not excessive, cruel, or
unusual. S e e Harris v. State , 656 S.W.2d 481, 486 (Tex

. Crim. App. 1983); Jordan v. State , 495 S.W.2d 949, 952 (Tex. Crim. A pp . 1973); Davis , 905 S.W.2d at 664. In Count 1, Appellant was convicted of aggravated sexual assault of a child by penetration of the sexual organ , a first

- degree felony, enhanced by two previous consecutive felony convictions, the punishment rang e for w hi ch is imprisonment for a term of life, or not more than ninety

- nine years or less than twenty

- five years

. See T EX

. P ENAL C ODE A NN

. § § 2 2 .0 2 1 ( a) (1)(B)(i) , (a)(2)(B) , (e), 12. 4 2 ( d ) ( West 2019 )

. Thus, the life sentence imposed by
the jury falls within the r ange set forth by the legislature and is not pr o hibited as cruel, unusual,

or excessive per se. See Harris , 656 S.W.2d at 486; Jordan , 495 S.W.2d at 952; D avis , 905
S.W.2d at 664. However, the $10,000 .00 fine is not authorized under Section 12.42(d)

. Se e Dolph v. State , 440 S.W.3d 898, 908 (Te x. App

. — Texarkana 2013, pet. ref’d) ; T EX

. P ENAL C ODE A NN

. § 12.42 ( d) ( con taining no provision autho rizing imposition of fine) ; see also Ex6 parte Youn g blood , 698 S.W.2d 671, 672 (Tex. Crim. App. 1985) ( judgment ref or

med to delete
fine unauthorized under Section 12.42(c)). Therefore, we reform the verdict in Count 1 to delete the improper fine. See Dolp h , 440 S.W.3d at 908; Ex parte Youngblood , 698 S.W.2d at 672.
In Count 2 , Appellant was convicted of aggravated se xu al assault of a child by penetration of the mouth , a first

- degree felony, enhanced by two previous consecutive felony convictions, the punis hment range for which is imprisonment for a term of life, or not more than ninety

- nine years or less than twenty

- f iv e years. See T EX

. P ENAL C ODE A NN

. § § 22.021( a)(1)(B)(i i ) , (a)(2)(B), (e), 12. 4 2 ( d )

. Thus, the life sentence imposed by the jury falls
with in the range set forth by the legislature and is not prohibited as cruel, unusual, or excessive

per se. See Harri s , 656 S.W.2d at 486; Jordan , 495 S.W.2d at 952; Davis , 905 S.W.2d at 664. However, as before, the $10,000.00 fine is not authorized under Sec tion 12.42(d). See Dolph , 440 S.W.3d at 908; T EX

. P ENAL C ODE A NN

. § 12.42 (d) ; see also Ex parte Youn g blood , 698
S .W .2d at 672

. Therefore, we reform the verdict in Count 2 to delete the improper fine. See Dolph , 440 S.W.3d at 908; Ex parte Youngblood , 69 8 S.W.2d at 672. After imposing the sentences assessed by the jury, the trial court ordered that Count 2 run

conse cu tively to Count 1, “pursuant to the authority that is granted to [ him] as judge because of
the nature of the case and [his] observations of the entirety of t his case from the beginning until
now.” Section 3.03 of the penal code provides the following:

If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consec utively if each sentence is for a conviction of

. . . an offense under Section

. . . 22.021 . . . committed agains t a victim younger than 17 years of age at the time of the commission of the offense regar dless of whether the accused is convicted of v iolati ons of the same section more than once.

T EX

. P ENAL C ODE A NN

. § 3.03 ( b)(2) (A) (West Supp. 2021). Thus, the court’ s order that Appellant’s convictions run consecutively comports with the requirements set forth by the legislature and is not prohibited as cr uel, unusual, or excessive per se. See Harris , 656 S.W.2d at 486; Jordan , 495 S.W.2d at 952; Davis , 905 S.W.2d at 6 64.
Neither can we conclude that Appellant’s sentences or their cumulation is prohibited by the Eighth Amendment when we consider the factor s originally set forth in Solem v. Helm , 463 U.S. 277, 103 S. Ct. 3001 77 L. Ed. 2d 63 7 (1983). Under Solem , the pr oportionality of a sentence is evaluated by con s idering (1) the gravity of the offense and the harshness o f the7 penalty, (2) the sentences i mposed on other criminals in the same juri s diction, and (3) the sentences imposed for commission of the same crime i n other jurisdictions. Id

. , 463 U.S. at 292,
103 S. Ct. a t 3011. The application of the Solem test has been modified by Tex a s courts and t he
Fifth Circuit Court o f Appeals in light of the Sup re me Court’s decision in Harmelin v. Michigan , 501 U.S. 957, 11 1 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a threshold determination that the sentence is grossly disproportionate to the crime befo re addressing the remaining elemen t s. See, e.g. , McGruder v. Puckett , 954 F.2d 313, 316 ( 5th Cir. 1992), cert. d

e ni ed , 506 U.S. 849, 113 S. Ct. 14 6, 1 2 1 L. Ed. 2d 98 (1992); see also Jackson v. State , 989 S.W.2d 842, 845

- 46 (Tex. App

. — Texarkana 1999, no p et.). We are guided by the holding in Rummel v. Estelle in making the threshold determination of whether Appellant ’s sentence is grossly disproportionate to his offense. 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980)

. In Rummel , the Supreme Court considered the proportionality claim of an appellant wh o received a mandatory life sen t ence under a prior
version of the Texas habitual offender statute for a conviction of obtaining $120.7 5 by false pretenses. See id. , 445 U.S. at 266, 100 S. Ct. a t 1135

. In that case, the appellant received a life
sentence because he had two prior felony convictions

— one for fraudu le nt use of a credit card to obtain $80.00 worth of g o ods or services and the other for passing a forged check in the amount of $28.36. I d. , 4 45 U.S. at 265

- 66, 100 S. Ct. a t 1134

- 35. After re c ognizing the legislative prerogative to classify offenses as f el onies and, further, considering the purpose of the habitual
offender s tatute, the court determined that the appellant’s mandatory life sente nce did not constitute cruel and unusual punishment. I d. , 445 U.S. at 284

- 85, 100 S. Ct. a t 1144

- 45.
In this cas e, the offenses committed by Appellant

— aggravated sexu al assault of a child by penetration of the sexual organ and aggravated sexual assault o f a child by penetration of the
mouth

— are far more serious than the combination of offenses committed by the appel la nt in
Rummel , while Appellant’s sentence s are the same as the one upheld by the Supreme Court in
Rummel

. Thus, it is reasonable to conclude that if the sentence in Rummel is not constitutionally disproportionate, then neither are Appellant’s sentence s i n this case.
Nor does the cumulation of the sentences render Appellant’s punishment constitutionally disproportionate. See Arredondo v. Stat e , 406 S.W.3d 300, 306 (Tex. App.

— San Antonio 2013, pet. ref’d). In Arredondo , a juvenile appellant argued that h is consecutive life sentences for
homicide and nonhomicide offenses , assessed in the trial court ’s discretion, amounted to a8 sentence of life without parole and violated the p rohibition against cruel and unusual punishment. Id. at 304 -05. The court of ap pe als analyzed Miller and noted that the Supreme
Court there held a mandatory, not discretionary , sentence of life without parole for a juveni le violates the Eighth Amendment. Id. at 305 -06 (citing Miller , 132 S. Ct. at 2464, 2467 -69). The court of appea ls conclude d that “even assuming for purposes of argu m ent that two consecutive life sentences amount to a sentence of ‘life without parole,’

. . . nothing prevents such a discretionary sentence when, as here, appellant has been found guilty of both a homic id e offense
and nonhomic ide offenses in a particularly heinous crime.” Id. at 306.
We similarly conclude that the discretionary cumulation o f discretionary life sentence s for an adult convicted of two counts of aggravated sexual assault of a child is not c onstitutionally disproportionate. See id. Appellant gives no reason why his offenses’ occurrence within a single
transaction renders his d iscretionary consecutive life sentences unconstitutional, and we know of

none. Because neither Appellant’s senten ce s nor their cumulation is cons titutionally disproportionate to his offenses , Solem ’s threshold test has not been satisfied, and we need not apply the remaining elements of the Solem test. See McGruder , 954 F.2d at 316; see also
Jackson , 989 S.W.2d at 845-46. Accordingly, we overrule Appellant’s third issue.

D ISPOSITION Having overruled Appellant’s first, second, and third issue s and concluded that the trial
court’s judgments contain improper fines, we modify the judgments to delete the fines and affi rm the judgments as modified

. G REG N EELEY Justice

Opinion delivered October 12, 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRI CT OF TEXAS

JUDGMENT

OCT OBER 12, 2022

NO. 12-21-00218- CR

VOLLIE EARL HENRY , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 159th District Court of Angelina County, Texas (Tr.Ct.No. 2019-0201) THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, it is the opinion of this court that the judgment s of the court below should be modified and as modified, affirmed.
I t is therefore ORDERED, ADJUDGED and DECREED that the judgments of th e co urt below be modifie d to delete the fines ; in all other respects the judgment s of the trial court a re affirmed ; and that this decision be certified to the court below for
observance. Greg Neeley , Justice. Panel consisted of Worthen, C.J., Hoyle, J., an d Neeley, J.