In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-11-00392-CR 

________________________

ROY GLOVER, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

 

On Appeal from the 47th District Court 

Potter County, Texas 

Trial Court No. 62,756-A, Honorable Dan Schaap, Presiding 

 

June 27, 2013 

 

OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Following a plea of not guilty, Appellant, Roy Glover, was convicted by a jury of 

continuous sexual abuse of a child younger than fourteen years of age.

1

 He was 

sentenced to sixty years confinement without the possibility of parole.2

 In attacking his 

 1

See TEX. PENAL CODE ANN. § 21.02(b) (WEST SUPP. 2012). 

2

See TEX. GOV’T CODE ANN. § 508.145(a) (WEST 2012) (providing that “[a]n inmate . . . serving a sentence 

for an offense under Section 21.02, Penal Code, . . . is not eligible for release on parole”).
2

sentence, Appellant presents two issues: (1) does the Eighth Amendment categorically

bar a sentence for continuous sexual abuse of a child where there is no possibility for 

parole, and (2) for victims of child sexual assault who themselves commit sexual assault 

offenses on children, does the Eighth Amendment prohibit imposition of a life sentence

with no realistic opportunity to obtain release before the end of that term, in the same 

way the Eighth Amendment prohibits such a sentence for juvenile offenders who did not 

commit homicide? We affirm.

BACKGROUND

Appellant does not contest the legal sufficiency of the evidence to support his 

conviction. He merely requests a new sentencing hearing. Thus, only the facts 

necessary for disposition of his issues will be discussed.

Appellant, thirty-seven years old at the time pretrial proceedings commenced in 

March 2011, sexually assaulted his daughter from the time she was ten years old until 

she was thirteen. Eventually, she confided in her friends who in turn confided in their

school counselor. She later made an outcry of the abuse to her counselor. The 

evidence showed that Appellant threatened to kill her, held a knife to her throat, and 

threatened to kill everyone in the house while they slept if she ever reported the abuse. 

The victim testified she was sexually assaulted too many times to keep count. 

During the punishment phase of the trial, Appellant waived his right to keep his 

medical information confidential and his doctor, Dr. Steven Schneider, a psychologist, 
3

testified on his behalf.

3

 According to Dr. Schneider, Appellant’s father was a “very strict” 

disciplinarian, to the point of being abusive. Additionally, Appellant was sexually 

abused by his mother from the time he was three until about age six or seven. His 

parents eventually divorced and he was raised by his mother.

Although of normal intelligence, Appellant did not have any academic assistance 

at home and he dropped out of school in ninth grade. He grew up in a very 

dysfunctional family and during his adolescence, associated with much older 

individuals, while at the same time he engaged in drug use and drug trafficking. He was 

also treated for suicidal threats when he was younger. Dr. Schneider concluded his 

direct examination by testifying that he diagnosed Appellant with incestuous pedophilia, 

depression and adjustment issues. His testimony described Appellant as a 

“polysubstance abuser” and summarized his overall life experience as a “sad situation.” 

During cross-examination by the State, Dr. Schneider acknowledged that 

Appellant had an awareness of his conduct and demonstrated a pattern of offending 

against his daughter, then apologizing for his behavior. He opined that Appellant’s 

minimal emotional connection with others would present an obstacle to treatment for 

pedophilia.

ANALYSIS

By his first issue, Appellant questions whether the Eighth Amendment 

categorically bars his sixty year sentence for continuous sexual abuse of a child where 

 3

Dr. Schneider explained that in his analysis of a patient, information provided by the patient is meant to 

be self-serving and he takes that into account in his evaluation.
4

there is no possibility for parole. Essentially, he contends the legislatively adopted 

sentencing scheme violates the Eighth Amendment because his sentence, considering

the unavailability of parole, is a more severe sentence than a similar sentence would be 

if he had murdered the victim instead of sexually abusing her. He reasons that because 

parole is available to someone convicted of murder of a child, and because the United 

States Supreme Court has declared that murder is a more outrageous offense than 

sexual assault, the lack of any possibility of parole in the continuous sexual assault 

sentencing scheme amounts to cruel and unusual punishment. By his second issue, he 

urges that victims of sexual abuse who themselves become sexual abusers should be 

accorded the same status as juveniles who cannot be assessed a sentence which 

denies them any reasonable expectation of release during their lifetime. We will 

address Appellant’s two issues separately because we answer Appellant’s first issue in 

the negative and we find his second issue does not present a justiciable controversy, 

EIGHTH AMENDMENT

Appellant contends that the unavailability of parole for the offense of continuous 

sexual assault of a child violates the Eighth Amendment’s prohibition against cruel and 

unusual punishment because it categorically denies parole eligibility to an entire class of 

offenders – to wit: persons who have committed the offense of continuous sexual 

assault. Relying on Graham v. Florida, 560 U.S. __, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 

825 (2010), Appellant reasons that because the United States Supreme Court has 

previously determined that sexual assault “does not compare to murder,” Coker v. 

Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), the categorical 

denial of parole eligibility “to an entire class of offenders” in the non-homicide case of 
5

continuous sexual assault of a child is disproportionate to any similar sentence that 

could be imposed for the more serious homicide offense of murder of a child, where the 

offender would be eligible for parole.4 

Continuous sexual abuse of a child is a first degree felony with a special range of 

punishment of imprisonment for life, or for any term of not more than 99 years or less 

than 25 years. TEX. PENAL CODE ANN. § 21.02(h) (WEST SUPP. 2012). A person serving 

a sentence for that offense is not eligible for release on parole. TEX. GOV’T CODE ANN. § 

508.145(a) (WEST 2012). By contrast, the murder of a child is a first degree felony with 

a range of punishment of imprisonment for life or for any term of not more than 99 years 

or less than 5 years, and by a fine not to exceed $10,000. TEX. PENAL CODE ANN. §

12.32 (WEST 2011). A person serving a sentence for murder is eligible for release on 

parole. TEX. GOV’T CODE ANN. § 508.145(f) (WEST 2012). 

Appellant reasons that because someone convicted of murder of a child could 

receive a sentence of sixty years with the possibility of parole, the imposition of his 

sentence of sixty years without the possibility of parole is disproportionate to his crime. 

We disagree with Appellant’s argument. 

The Eighth Amendment to the United States Constitution provides, “[e]xcessive 

bail shall not be required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted.” U.S. CONST. amend VIII. That provision is applicable to the 

States through the Fourteenth Amendment. Furman v. Georgia, 408 U.S. 238, 239, 33

 4

Appellant does recognize in his argument that the murder of a child under 10 years of age can be a 

capital offense, thereby rendering parole unavailable. TEX. PENAL CODE ANN. § 19.03(a)(8) (WEST SUPP.

2012) and TEX. GOV’T CODE ANN. § 508.145(a) (WEST 2012). Here, the victim contends that the 

continuous sexual assault occurred when she was between ten and thirteen years of age.
6

L.Ed.2d 346, 92 S.Ct. 2726 (1972) (per curiam). The prohibition of cruel and unusual 

punishment “guarantees individuals the right not to be subjected to excessive 

sanctions.” Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455, 2463, 183 L.Ed.2d 407 

(2012) (citing Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 

(2005)). The right to be free from excessive punishment flows from the basic “precept 

of justice that punishment for crime should be graduated and proportioned” to both the 

offender and the offense. Roper, 543 U.S. at 560 (quoting Atkins v. Virginia, 536 U.S. 

304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)). 

The constitutionality of a given punishment scheme cannot, however, be

determined by simply comparing the punishment schemes applicable to two or more 

offenses for purposes of making a “proportionality review.” In fact, the United States 

Supreme Court has held that the Eighth Amendment does not contain a proportionality

guarantee in non-death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 965,

111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (upholding mandatory sentence of life without 

the possibility of parole in a drug possession case). In Harmerlin, the Supreme Court 

found that while mandatory penalties may be both severe and cruel, they certainly are 

not unusual in a constitutional sense. Accordingly, a sentence for a non-capital offense

which is subject to a mandatory provision providing for the unavailability of parole is not 

per se unconstitutional.

A narrow proportionality principle applicable to non-capital cases has, however, 

evolved as it pertains to the “categorical” application of a punishment scheme to “an 

entire class of offenders.” In Graham, the United States Supreme Court held that a 
7

sentence of life without the possibility of parole is constitutionally infirm when 

categorically applied to juveniles in non-homicide offenses. 

When analyzing similar “categorical” challenges to statutory punishment 

schemes in Texas, the Court of Criminal Appeals has interpreted Graham as requiring 

the consideration of four factors: (1) whether there is a national consensus against 

imposing the particular punishment at issue; (2) the moral culpability of the offenders at 

issue in light of their crimes and characteristics; (3) the severity of the punishment; and 

(4) whether the punishment serves legitimate penological goals. Meadoux v. State, 325 

S.W.3d 189, 194 (Tex.Crim.App. 2010) (relying upon Graham v. Florida, 130 S.Ct. at 

2022 & 2026). 

I. NATIONAL CONSENSUS

The best evidence of a national consensus with respect to the appropriateness of 

the punishment assessed for a particular offense is the legislation enacted by the 

nation’s legislatures. Meadoux, 325 S.W.3d at 194 (citing Atkins, 536 U.S. at 312). 

“Actual sentencing practices are an important part of the Court’s inquiry into 

consensus.” Graham, 130 S.Ct. at 2023. 

In Dixon v. State, 201 S.W.3d 731 (Tex.Crim.App. 2006), Judge Cochran, in her 

concurring opinion, implored the Texas Legislature to enact a new penal statute that 

focused on a continuing course of conduct involved in a sexually abusive relationship 

between a young child and a trusted authority figure. It was a call to action to 

accommodate the “prosecution of generic, undifferentiated, ongoing acts of sexual 

abuse of young children” in a penal system intended to prosecute a person who 
8

commits “one discrete criminal offense at one discrete moment in time.” Id. at 737. She 

noted, “[t]his scenario plays itself out in Texas courtrooms every day.” The national 

consensus, as reflected by the Legislature’s response to this call for legislation to 

address the continuous sexual abuse of a child, resulted in enactment of section 21.02 

of the Penal Code and amendment to the “no parole” provision contained in section 

508.145(a) of the Texas Government Code.5 Therefore, we believe the national 

consensus factor weighs in favor of the constitutionality of a no parole sentencing 

scheme for the offense of continuous sexual abuse of a child.

II. MORAL CULPABILITY

Regarding moral culpability, Graham recognized that there is a moral line 

between murder and other serious violent offenses against an individual. 130 S.Ct. at 

2027. Defendants who kill are categorically more deserving of the most serious forms 

of punishment than are defendants who do not kill, intend to kill or foresee that life will 

be taken. Id. Graham involved a juvenile who was charged as an adult in an armed 

robbery that did not result in a homicide. The Court recognized that a juvenile’s 

transgression “is not as morally reprehensible as that of an adult” because a juvenile 

lacks maturity and has an underdeveloped sense of responsibility. 130 S.Ct. at 2026. 

Similarly, in Atkins, the Supreme Court concluded that, in light of “evolving standards of 

decency,” the death penalty was cruel and unusual punishment for mentally challenged 

defendants because their disabilities prevented them from acting with the level of moral 

culpability that characterizes the most serious adult criminal conduct. 536 U.S. at 321.

 5

See Act of May 18, 2007, 80th Leg., R.S., ch. 593, § 1.17, 2007 Tex. Gen. Laws 1120, 1127. See also

Act of May 18, 2007, 80th Leg., R.S., ch. 593, § 1.10, 2007 Tex. Gen. Laws 1120, 1124.
9

Likewise, imposition of the death penalty for rape has been found to be 

unconstitutional. In Coker, the Supreme Court recognized that rape of an adult woman 

is “without a doubt deserving of serious punishment; but in terms of moral depravity and 

of the injury to the person and to the public, it does not compare with murder . . . .”6

 433 

U.S. at 598. More than three decades later, the Supreme Court held in Kennedy v. 

Louisiana, 554 U.S. 407, 421, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), that the Eighth 

Amendment barred imposition of the death penalty for the rape of a child where the 

crime did not result, and was not intended to result, in the death of the child. 

While the national consensus is that the death penalty is not appropriate for a 

sexually related non-homicide offense; the mere fact that a sentence may be subject to 

no possibility of parole does not offend the Eighth Amendment. See Harmelin, 501 U.S. 

at 994-96. See also Duran v. State, 363 S.W.3d 719, 722-23 (Tex.App.—Houston [1st 

Dist.] 2011, pet. ref’d). Accordingly, considering the nature of the offense, the 

vulnerability of the victims, and the repetitive nature of the offense, we believe the moral 

culpability factor weighs in favor of the constitutionality of a no parole sentencing 

scheme for the offense of continuous sexual abuse of a child.

 6

The Court wrote:

[w]e do not discount the seriousness of rape as a crime. It is highly reprehensible, both 

in a moral sense and in its almost total contempt for the personal integrity and autonomy 

of the female victim . . . . Short of homicide, it is the “ultimate violation of self.” It is also a 

violent crime . . . . 

Coker, 433 U.S. at 597.
10

III. SEVERITY OF THE PUNISHMENT

A lengthy term of years without the possibility of parole is a severe penalty.7 In 

this case, Appellant contends that his sentence is made even more severe by the fact 

that his sentence is “in all probability” a life sentence. Regardless of whether his 

sentence is equivalent to a sentence of life without the possibility of parole, the 

sentence in question is certainly a severe sentence, arguably weighing in favor of the 

unconstitutionality of this particular sentencing scheme as applied to Appellant.

IV. PENOLOGICAL GOALS

Four legitimate goals of penal sanctions are retribution, deterrence, 

incapacitation and rehabilitation. Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 

155 L.Ed.2d 108 (2003). “A sentence lacking any legitimate penological justification is 

by its nature disproportionate to the offense.” Graham, 130 S.Ct. at 2028. 

In part, section 21.02 of the Texas Penal Code was enacted to protect children 

from continuous acts of sexual abuse. As an analogy, a recidivist statute such as 

section 12.42 of the Texas Penal Code is intended to hold a perpetrator accountable for 

continuously breaking the law. See Simpson v. State, 668 S.W.2d 915, 919

(Tex.App.—Houston [1st Dist.] 1984, no pet.). Recidivist statutes were enacted to 

protect citizens against habitual offenders. Id. Similarly, the Legislature’s decision to 

deny parole to persons convicted of continuous sexual abuse of a child protects child 

victims against continuous sexual attacks. A punishment scheme does not offend the 

 7

The most severe and unique punishment is death, the second most severe is life imprisonment without 

the possibility of parole and life imprisonment with the possibility of parole is the third most severe form of 

punishment. Harmelin, 501 U.S. at 996.
11

Eighth Amendment simply because “the classification is not made with mathematical 

nicety or because in practice it results in some inequality.” Martin v. State, 335 S.W.3d 

867, 879 (Tex.App.—Austin 2011, pet. ref’d) (citing Dandridge v. Williams, 397 U.S. 

471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)).

As a general rule, murder results from a single, impulsive act, and except for 

serial killers, murderers tend not to reoffend. On the other hand, pedophiles and sexual 

predators tend to repeat their offenses. Accordingly, the penological interests of both

deterrence and incapacitation are served by the sentencing scheme in question.

Having weighed all four factors, we cannot say that a sentencing scheme which 

categorically denies that availability of parole to offenders who have committed the 

offense of continuous sexual abuse is constitutionally infirm. Appellant’s first issue is 

overruled.

JUSTICIABLE CONTROVERSY

By his second issue, Appellant urges this Court to consider his abusive childhood 

under the same standards applied to juveniles of non-homicide offenses and hold that 

the Eighth Amendment prohibits a sentence of life without parole in a non-homicide 

case where the offender has been sexually abused. Essentially, Appellant asks this 

court to equate his status as an abused offender to that of a juvenile. See generally 

Graham, 130 S.Ct at 2034 (holding that the Eighth Amendment prohibits the imposition 

of a sentence of life without parole on a juvenile offender convicted of a non-homicide

offense). We find that Appellant’s claim does not present a justiciable controversy. 
12

In order to address an issue on appeal, an appellate court must be presented 

with a justiciable controversy. A justiciable controversy is a real and substantial 

controversy which is appropriate for judicial determination, as distinguished from a 

dispute which is hypothetical or abstract in character. In that regard, courts generally 

lack judicial authority to answer abstract questions of law or to consider issues raised by 

persons who have not suffered the complained of injury. Fuller v. State, 829 S.W.2d 

191, 201 (Tex.Crim.App. 1992). In Fuller, the Court of Criminal Appeals held that “it is a 

fundamental rule of law that only the person whose primary legal right has been 

breached may seek redress for an injury” and “[o]ne who has not suffered an invasion of 

a legal right does not have standing to bring suit.” Id. at 201-202 (quoting Nobles v. 

Marcus, 533 S.W.2d 923, 927 (Tex. 1976) and Sherry Lane Nat’l Bank v. Bank of 

Evergreen, 715 S.W.2d 148, 152 (Tex.App.—Dallas 1986, writ ref’d n.r.e.) respectively). 

Consequently, the issue of standing has been considered to be a “constituent 

requirement of justiciability, the basic posture in which a controversy must appear to be 

cognizable by the courts.” Id. at 201. Because a justiciable controversy does not exist 

where standing does not exist, judicial review is improper unless essential to the 

resolution of an actual case or controversy. Id. 

Here, Appellant was not sentenced to life without parole. Because Appellant 

seeks to have this Court consider the constitutionality of a sentence he did not receive,

we believe Appellant’s second issue fails to present a justiciable controversy. 

Accordingly, Appellant’s second issue is overruled.
13

CONCLUSION

Having overruled Appellant’s issues, the trial court’s judgment is affirmed.

Patrick A. Pirtle

Justice

Publish.