No. 06-14-00193-CR

______________________________________________________________________________ 

IN THE SIXTH COURT OF APPEALS 

TEXARKANA, TEXAS 

______________________________________________________________________________ 

JAMES OLSEN 

Appellant, 

v.

THE STATE OF TEXAS 

Appellee. 

______________________________________________________________________________ 

Appealed from the 71st District Court of 

Harrison County, Texas 

Trial Cause No 13-0351X 

______________________________________________________________________________ 

APPELLEE’S BRIEF

______________________________________________________________________________ 

Timothy J. Cariker 

Assistant District Attorney 

State Bar No. 24009942 

Harrison County District Attorney’s Office

200 West Houston Street 

Marshall, Texas 75670 

Telephone: 903-935-8408

ATTORNEY FOR APPELLEE 

STATE OF TEXAS 

ACCEPTED

06-14-00193-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

4/23/2015 5:20:55 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 4/24/2015 9:05:00 AM DEBBIE AUTREY Clerk
i

IDENTITY OF PARTIES AND COUNSEL

Appellant certifies that the following is a complete list of all parties to the trial court’s 

judgment and the names and addresses of their trial and appellate counsel.

1. Presiding Judge: Honorable Brad Morin

71st Judicial District

Marshall, Texas 75670

2. Appellant: James Olsen

3. Appellant’s Counsel : Clement Dunn

Attorney at Law

140 E Tyler Street, Suite 240

Longview, TX 75601

4. State’s Counsel (at trial): Colleen Clark and Shawn Connally

Harrison County District Attorney

200 West Houston Street

Marshall, Texas 75670

5. State’s Counsel (on appeal): Timothy J. Cariker

Assistant District Attorney

Coke Solomon

District Attorney

Harrison County District Attorney

200 West Houston Street

Marshall, Texas 75670
ii

TABLE OF CONTENTS

Identity of Parties and Counsel ........................................................................................................i

Table of Contents ............................................................................................................................ii

Index of Authorities ........................................................................................................................1

Statement of the Case ......................................................................................................................2

Issues Presented................................................................................................3

Statement of Facts............................................................................................................................4

Summary of Argument......................................................................................................................5

Argument and Authorities

I). THE SENTENCE DOES NOT VIOLATE THE EIGTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION...............................................6

II). THE TRIAL COURT DID NOT VIOLATE THE APPELLANT’S RIGHT 

AGAINST SELF INCRIMINATION, NOR DID IT PUNISH APELLANT 

BASED ON ANY PERCIEVED STATUS ...............................................10

Prayer for Relief.............................................................................................................................12

Certificate of Compliance..............................................................................................................12

Certificate of Service.....................................................................................................................13
1

INDEX OF AUTHORITIES

United States Supreme Court

Harmelin v. Michigan, 501 U.S. 957 (1991). ............................................................7

Robinson v. California, 370 U.S. 660 (1962) ...........................................................10

Rummel v. Estelle, 446 U.S. 263, 100 S. Ct. 1133, 63 L.Ed 2d 382 (1980)...........................6

Solem v. Helm, 463 U.S. 277 (1983) .....................................................................6,7

Trop v. Dulles, 356 U.S. 86 (1958). ........................................................................6

Weems v. United States, 217 U.S. 349 (1910)............................................................6

United States Court of Appeals

M

cGruder v. Puckett, 954 F. 2d 313 (5th Cir. 1992).......................................................7

Texas Court of Criminal Appeals

M

cNew v. State, 608 S.W. 2d 166 (Tex. Crim. App. 1978)...............................................6

Texas Court of Appeals

Hardwell v. State, 2005 WL 2403437, (Tex. App, - Dallas 2005), ....................................9
2

STATEMENT OF THE CASE

On September 25, 2013, the Appellant was charged by indictment with the offense of Driving While 

Intoxicated – Third or More, which was alleged to have occurred on July 29, 2013. On May 29, 

2014, the Appellant entered a plea of guilty. (RR1). On July 25, 2014 a sentencing hearing was 

held. (RR2). At the conclusion of the hearing the Appellant was sentenced to five years 

incarceration in the Texas Department of Criminal Justice, and was allowed to remain free on an 

appeal bond. (RR 2 12-13). On August 12, 2014 the Appellant filed a motion for new trial which 

was denied by operation of the law. (CR 26).
3

ISSUES PRESENTED

I. THE SENTENCE DOES NOT VIOLATE THE EIGTH AMENDMENT TO THE 

UNTIED STATES CONSTITUTION.

II. THE TRIAL COURT DID NOT VIOLATE THE APPELLANT’S RIGHT AGAINST 

SELF INCRIMINATION, NOR DID IT PUNISH APELLANT BASED ON ANY 

PERCIEVED STATUS.
4

STATEMENT OF FACTS

The court was asked to take judicial notice of the Pre-Sentence Investigation Report, (PSI). (RR 2-

4). A discussion about the report revealed the Appellant had convictions for driving while 

intoxicated in 1988, 1990, 1996, and two in 2002. (RR 2-5). For the last one the Appellant received 

three years confinement in the Texas Department of Criminal Justice. (RR 2-5). The PSI also 

showed the Appellant had a blood alcohol content, (BAC), level of 0.223. (RR 2-10).

Prior to pronouncing sentence the following colloquy occurred:

Mr. Olsen, I don’t you know the thing that caught my eye, other than the six DWIs, was the fact 

that you indicated that you didn’t have a drinking problem and maybe you have addressed that 

issue right now. I don’t know. One of my jobs is to protect the public and, you know, I 

understand the health condition. I looked at the information that was provided with regard to the 

programs that are there. I don’t know what – I was going to ask you, but you didn’t – I don’t 

know if you even can talk. You got sentenced to three years how much of that time did you do?

A. A minimum.

The court: Okay.

Was that like within months you were out? That you didn’t – because that was 11 years 

ago on the three years that you got for your–

A. I have not had a drink. This was an isolated incident.

The Court: And Mr. Olsen I hear that every single time.

A. I know.

The Court: That is not – you are not the first person that is telling me that.

A. I understand.
5

SUMMARY OF ARGUMENT

Having been convicted of the felony offense of driving while intoxicated and sentenced to 5 years 

incarceration the Appellant raises two issues on appeal. As discussed below, both of these issues lack 

merit.

In Issue Number One, the Appellant claims his sentence was cruel and unusual because he has a 

major medical condition. He asks this Court to disregard the tests established by the U.S. Supreme 

Court and without any other points of reference to declare his sentence to be cruel and unusual. On 

the other hand, once the Court’s mandated tests are applied it becomes readily apparent that the 

sentence is not cruel and unusual. As such, this point should be overruled, and the conviction 

affirmed.

In Issue Number Two, the Appellant takes a statement the court made in the sentencing hearing and 

through a process of distortion and contortion claims the court violated his right against selfincrimination or alternatively punished him based on a perceived status. Once the statement is read in 

the context that it was made it becomes apparent that the Appellant’s assertions are not true, and this 

point should be overruled.
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ISSUE NUMBER ONE

THE SENTENCE DOES NOT VIOLATE THE EIGTH AMENDMENT TO THE UNITED 

STATES CONSTITUTION.

The general rule is that if an imposed sentence falls within the range mandated by the statute then it 

is not cruel and unusual. Rummel v. Estelle, 446 U.S. 263, 100 S. Ct. 1133, 63 L.Ed. 2d 382 

(1980); M

cNew v. State, 608 S.W. 2d 166 (Tex. Crim. App. 1978). The reason for the rule is to give 

proper deference to the prerogatives of the legislative branch. Rummel, 445 U.S. at 273, 100 S.Ct. at 

1139; M

cNew, at 608 S.W. 2d at 174.

Over the years, the Court has created exceptions to the general rule. Weems v. United States, 217 

U.S. 349 (1910); Trop v. Dulles, 356 U.S. 86 (1958). In Weems, the Court held that it was cruel and 

unusual for the individual sentenced to 12 years imprisonment and as a condition of imprisonment 

that they had to be shackled 24 hours a day including the time they were doing hard labor. In Trop, 

the Court held it was cruel and unusual for an individual to forfeit their United States citizenship for 

the simple act of deserting one’s military post.

In the more modern era, the Court in Solem v. Helm, 463 U.S. 277 (1983) held that it was cruel and 

unusual to sentence a non-violent habitual offender to a sentence of life without parole. In Solem,

the Court enunciated a framework to determine if a sentence was cruel and unusual. The Court’s 

analysis is as follows:
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1. The gravity of the offense and the harshness of the penalty;

2. The sentence imposed on criminals in the same jurisdiction; and 

3. The sentence imposed for the same crime in other jurisdictions. Solem, 463 U.S. at 290.

The test enunciated in Solem was called into question in Harmelin v. Michigan, 501 U.S. 957 

(1991). In Harmelin, a majority held that it was not cruel and unusual to sentence a first conviction 

drug dealer to life without parole. A plurality of the Court rejected the Solem test.

Probably the best case after Harmelin to harmonize the tension between Solem and Harmelin is 

M

cGruder v. Puckett, 954 F. 2d 313 (5th Cir. 1992). In McGruder, the Court observed:

“By applying a head-count analysis, we find that seven members of the Court 

supported a continued guarantee against disproportional sentences. Only four justices 

supported the continued application of all three factors in Solem and five justices 

rejected it. Thus this much is clear, disproportionality survives. Solem does not. Only 

Justice Kennedy’s opinion reflects that view, it is to his opinion therefore that we turn 

for direction. Accordingly we will make a threshold comparison of the gravity of 

M

cGruder’s offense against severity of his sentence. Only is we infer that the sentence 

is grossly disproportionate to the offense will we then consider the remaining factors of 

the Solem test and compare the sentence received to (1) sentences for similar crimes in 

the same jurisdiction and (2) sentences for the same crime in other jurisdictions.” 

M

cGruder, 954 F.2 at 316.
8

Applying this to the Appellant’s case shows that the Appellant was charged with felony driving 

while intoxicated which is a 3rd degree felony. The punishment range is not less than 2 years and not 

more than 10 years and a fine not to exceed $10,000. The record shows the Appellant had a BAC of 

0.233 at the time of his arrest which is almost three times the legal limit. The record also shows that 

the Appellant had five prior convictions for driving while intoxicated with the last one resulting in a 

3 year prison sentence. Based on this the sentence of 5 years’ incarceration is not grossly 

disproportionate.

The Appellant argues that his medical condition trumps the analysis delineated above. The problem 

with this argument is the Appellant cannot direct the Court to a primary source, a secondary source 

nor a tertiary source to support his argument.

In fact secondary sources discredit his position that someone who has a medical condition should be 

absolved from going to the penitentiary. A brief internet search revealed the following:

1. On March 19, 2015 the Chicago Sun Times reported that Keith Farnham who is 67 years old 

and suffers from pulmonary fibrosis, bladder cancer and Hepatitis C was sentenced to 8 years 

incarcerations for child pornography. The defendant has a 90 day life expectancy and the 

judge refused to delay sentencing so that he could die at home;

2. On October 2, 2013, Channel 7 news out of Denver Colorado reported that a 65 year old man 

who had terminal lung cancer was sentenced to 48 years incarceration for murdering his wife.
9

3. On September 30, 2005 in Hardwell v. State, 2005 WL 2403437, (Tex. App, - Dallas 2005), 

the Court upheld a life sentence for an individual who had AIDS and was given 4 months to 1 

year to live. The defendant has been convicted of evading arrest and unauthorized use of a

motor vehicle.

The examples detailed above show that the Appellant’s case is not unique as he asserts in his brief. 

They show that it is not cruel and unusual to sentence individuals to the penitentiary who are “beset 

with life threatening and life altering conditions” as asserted by the Appellant. As such, this point 

should be overruled and the conviction affirmed. 
10

ISSUE NUMBER TWO

THE TRIAL COURT DID NOT VIOLATE THE APPELLANT’S RIGHT AGAINST SELF 

INCRIMINATION, NOR DID IT PUNISH APELLANT BASED ON ANY PERCIEVED 

STATUS.

The record from the sentencing hearing shows that there were no witnesses called by either party. 

The only evidence the Court had was the PSI prepared by the probation department. Twice the court 

made references to the fact that the Appellant claimed he did not have a drinking problem. (RR 2-8, 

11). The only way the court could have known this was from the information provided in the PSI.

When one reviews the record, it becomes obvious that the court was allowing the parties to see, in an 

oral fashion, the evidence the court had before it in trying to assess the appropriate punishment. The 

court was relaying to counsel statements attributed to his client.

The Appellant’s assertion that this violated his right against self-incrimination is not supported by 

the record. 

As it relates to his Robinson v. California, 370 U.S. 660 (1962) the Appellant’s case and argument 

does not fit into that category. Robinson stands for the position that criminal sanctions should not be 

imposed based on status. In the Appellant’s case sanctions were not imposed because he may be an 

alcoholic. Sanctions were imposed because the Appellant had been convicted not once, not twice, 

not three not four, not five but six times of felony driving while intoxicated and had been sentenced 
11

to the penitentiary once before. Based on the Appellant’s history, the court chose to protect society 

from an individual who has the proclivity to operate motor vehicles while intoxicated. This point 

should be overruled and the conviction affirmed.
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PRAYER FOR RELIEF

Based on the foregoing, the Appellee prays that the Appellant’s conviction and sentence be affirmed.

Respectfully Submitted,

Timothy J. Cariker, Assistant District Attorney

Harrison County District Attorney

200 West Houston Street

Marshall, Texas 75670

By: /S/ Timothy J. Cariker

_______________________________

Timothy J. Cariker

State Bar No. 24009942

CERTIFCATE OF COMPLIANCE

I certify that this brief contains 2272 words according to the computer program used to prepare this 

document.

/S/ Timothy J. Cariker

By: _________________________________

Timothy J. Cariker
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CERTIFICATE OF SERVICE

A true and correct copy of the foregoing document has been delivered to all counsel of record, on 

this the 22nd day of April, 2015

/S/ Timothy J. Cariker

____________________________________

Timothy J. Cariker