No. 07-15-00002-CR

IN THE 

COURT OF APPEALS

OF THE SEVENTH SUPREME JUDICIAL CIRCUIT

APPEAL FROM THE 52ND JUDICIAL DISTRICT COURT

OF CORYELL COUNTY, TEXAS

TRIAL COURT CAUSE NUMBER: FISC-13-21767 

AND TRANSFERRED FROM THE TENTH COURT OF APPEALS 

STATE’S BRIEF

CHARLES KARAKASHIAN, JR.

SPECIAL PROSECUTOR

52ND JUDICIAL DISTRICT

STATE BAR NO. 11095700

P.O. Box 929

Gatesville, Texas 76528

(254) 865-5911

(254) 865-5147 – Facsimile

E-Mail: ckarakashian@aol.com

July 22, 2015 

ORAL ARGUMENT NOT REQUESTED

JAKE HENRY OGLESBY

Appellant

v. 

STATE OF TEXAS

Appellee

ACCEPTED

07-15-00002-CR

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

7/22/2015 11:51:34 AM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 7/22/2015 11:51:34 AM VIVIAN LONG CLERK
ii

NAMES OF THE PARTIES TO THE FINAL JUDGMENT

APPELLANT: JAKE HENRY OGLESBY

Appellant's Trial Counsel

Mr. Steve Lee

806 South Main

Copperas Cove, Texas 76522

Mr. Bryon Barnhill

331 Indian Trail, Suite 101

Harker Heights, Texas 76548

Appellant's Appellate Counsel

Mr. Stan Schwieger

601 Austin Avenue, Suite 12

Post Office Box 975

Waco, Texas 76703-0975

THE STATE OF TEXAS

Appellee's Trial Counsel

Ms. Amanda Speer,

Assistant District Attorney

Post Office Box 919

Gatesville, Texas 76528-0919

Appellee’s Appellate Counsel

Charles Karakashian, Jr.

Special Prosecutor

Post Office Box 919

Gatesville, Texas 76528-0919

TRIAL JUDGE

The Honorable Judge Trent Farrell

52nd Judicial District Court

Coryell County Courthouse

620 East Main Street, 2nd Floor

Gatesville, Texas 76528
iii

TABLE OF CONTENTS

NAMES OF THE PARTIES TO THE FINAL JUDGMENT.................................. ii

TABLE OF CONTENTS......................................................................................... iii

TABLE OF AUTHORITIES .....................................................................................v

STATEMENT OF ORAL ARGUMENT .................................................................1

STATEMENT OF THE CASE..................................................................................1

REPLY TO ISSUES PRESENTED ..........................................................................3

Reply to Issue Number One 

Appellant’s sentence is neither cruel nor unusual under the Texas 

Constitution..........................................................................................................3

Reply to Issue Number Two

Appellant’s sentence is neither cruel nor unusual under the Eighth

Amendment of the United States Constitution ....................................................3

Reply to Issue Number Three

Appellant’s sentence is not grossly disproportional given his original offense .3

STATEMENT OF FACTS ........................................................................................3

SUMMARY OF ARGUMENT.................................................................................7

Reply to Issue Number One Restated.........................................................................8

Reply to Issue Number Two Restated ........................................................................8

Reply to Issue Number Three Restated ......................................................................8
iv

ARGUMENT AND AUTHORITIES........................................................................8

A. The Standard of Review..............................................................................8

B. Preservation of Error.................................................................................9

C. Argument ..................................................................................................10

1. Appellant’s Sentence is within the Prescribed Statutory 

Range ........................................................................................................12

2. Cruel or Unusual Punishment under the Texas Constitution

and the Eighth Amendment ...................................................................13

a. Cruel “or” Unusual v. Cruel “and” Unusual – A 

Distinction without a Difference...............................................13

b. Appellant’s punishment should be analyzed under 

Federal and state constitutional provisions jointly ..................14

3. The Disproportionality Analysis............................................................16

a. The Threshold Comparison.......................................................16

b. The Offense ...............................................................................17

c. The Offender and His Victim ....................................................19

d. Appellant Fails to Make it Past the Disproportionality

Threshold ..................................................................................21

e. The Other Solem Factors..........................................................21

4. Appellant’s Mental Illness....................................................................24

5. Mental Illness and Proportionality........................................................26

D. Conclusion ....................................................................................................28
v

Prayer for Relief.......................................................................................................29

Certificate of Service ...............................................................................................30

Certificate of Compliance ........................................................................................30
vi

TABLE OF AUTHORITIES

FEDERAL CASES

Graham v. Florida,

130 S. Ct. 2011 (2010).............................................................................26, 27

Harmelin v. Michigan, 

501 U.S. 957, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy J. 

concurring)...................................................................... 10, 11, 13, 15, 16, 22

Kennedy v. Louisiana,

554 U.S. 407 (2008).......................................................................................18

Lockyer v. Andrade, 

538 U.S.63, 123 S. Ct. 1166, 155 L.Ed.2d 144 (2003) ...................................9

McGruder v. Puckett, 

954 F.2d 313 (5th Cir.), cert. denied, 506 U.S. 849, 113 146, 121 

L.Ed.2d 98 (1992)........................................................................10, 11, 17, 24

Miller v. Alabama,

132 S. Ct. 2455 (2012).......................................................................25, 26, 27

Rummel v. Estelle, 

445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) ..............................16

Solem v. Helm, 

463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)10, 11, 13, 16, 17, 21, 24

FEDERAL STATUTES

U.S. Const. Amend. VIII ................................................ 3, 4, 7, 8, 10, 13, 15, 16, 22
vii

STATE CASES

Ajisebutu v. State,

236 S.W.3d 309 (Tex. App. – Houston [1st Dist.] 2007, pet. ref’d)........14, 15

Alvarez v. State,

63 S.W.3d 578 (Tex. App. – Fort Worth 2001, no pet.) ...................10, 20, 22

Arriaga v. State, 

335 S.W.3d 331 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).....22, 23

Baldridge v. State, 

77 S.W.3d 890 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd) ..............14

Baletka v. State, 

NO. 09-04-180-CR, NO. 09-04-181-CR 2005 Tex. App. LEXIS 1355, (Tex. App. 

Beaumont Feb. 16, 2005, no pet.) (mem. op. not design. for pub.) ........18, 23

Barrow v. State, 

207 S.W.3d 377(Tex. Crim. App. 2006).........................................................9

Cantu v. State, 

939 S.W.2d 627 (Tex. Crim. App. 1997)......................................................14

Ex parte Chavez, 

213 S.W.3d 320 (Tex. Crim. App. 2006)........................................................9

Dale v. State, 

170 S.W.3d 797 (Tex. App. – Fort Worth 2005, no pet.) ...........10, 13, 16, 17

Davis v. State, 

119 S.W.3d 359 (Tex. App.--Waco 2003, pet. ref'd)....................................24

Delacruz v. State,

167 S.W.3d 904 (Tex. App. – Texarkana 2005, no pet.) ..............................16

Diaz-Galvan v. State, 

942 S.W.2d 185 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd)...............16
viii

Dunn v. State, 

997 S.W.2d 885 (Tex. App.--Waco 1999, pet. ref'd)....................................11

Eiland v. State, 

993 S.W.2d 215 (Tex. App.-San Antonio 1999, no pet.)..............................27

Flowers v. State, 

No. 10-06-00187-CR, 2007 Tex. App. LEXIS 301 (Tex. App. Waco Jan. 17, 

2007, no pet.) (mem. op. not design. for pub.)..............................................23

Harris v. State, 

656 S.W.2d 481 (Tex. Crim. App. 1983)......................................................15

Hernandez v. State, 

No. B14-92-00704-CR, 1994 Tex. App. LEXIS 2182, (Tex. App. Houston

14th Dist. Sept. 1, 1994, pet. ref’d.) (mem. op. not design. for pub.)...........15

Holder v. State, 

643 S.W.2d 718 (Tex. Crim. App. 1982)......................................................22

Holt v. State, 

NO. 2-06-349-CR, 2007 Tex. App. LEXIS 3627 (Tex. App. Fort Worth May 

10, 2007, no pet.) (mem. op., not designated for publication)...........................21, 22

Hyde v. State, 

723 S.W.2d 754 (Tex. App.--Texarkana 1986, no pet.)................................15

Jackson v. State, 

680 S.W.2d 809 (Tex. Crim. App. 1984)............................................9, 10, 12

Jackson v. State, 

989 S.W.2d 842 (Tex. App.--Texarkana 1999, no pet.)................................14

Jarvis v. State, 

315 S.W.3d 158 (Tex. App. – Beaumont 2010, no pet.).................................9

Kirk v. State, 

949 S.W.2d 769 (Tex. App.--Dallas 1997, pet. ref'd) ...................................12
ix

Lawrence v. State, 

420 S.W.3d 329 (Tex. App. – Fort Worth 2014, pet. ref’d.).........................12

Lewis v. State, 

428 S.W.3d 860 (Tex. Crim. App. 2014)......................................................26

Lewis v. State, 

448 S.W. 3d 138 (Tex. App. Houston 14th Dist. 2014, pet. ref’d.)........14, 26

Loomis v. State, 

No. 07-06-0281-CR, 2007 Tex. App. LEXIS 82 (Tex. App. Amarillo Jan. 8, 

2007, no pet.) (mem. op. not design. for pub.)..............................................23

Mason v. State, 

416 S.W.3d 720 (Tex. App.--Houston [14th Dist.] 2013, pet. ref'd) ............14

Matthews v. State,

918 S.W.2d 666 (Tex. App. – Beaumont 1996 pet. ref’d). ..........................18

Meadoux v. State, 

325 S.W.3d 189 (Tex. Crim. App. 2010)......................................................27

Moore v. State, 

54 S.W.3d 529 (Tex. App. Fort Worth 2001 pet. ref’d.)...................15, 20, 24

Morrison v. State, 

No. 11-11-00191-CR , 2013 Tex. App. LEXIS 6527, (Tex. App. – Eastland,

May 30, 2013, pet. ref’d.) (mem. op. not design. for pub.).............................9

Muzquiz v. State, 

No. 14-13-01008-CR 2015 Tex. App. LEXIS 960 (Tex. App. Houston 14th 

Dist. Feb. 3, 2015, no pet.) (mem. op. not design. for pub.)....................................22

Price v. State, 

35 S.W.3d 136 (Tex. App.--Waco 2000, pet. ref'd) (op. on reh'g.)...............15

Sloan v. State, 

418 S.W.3d 884 (Tex. App. Houston 14th Dist. 2013, pet. ref’d.)...............27
x

Sneed v. State, 

406 S.W.3d 638 (Tex. App. – Eastland 2013, no pet.)............................16, 17

State ex rel. Smith v. Blackwell, 

500 S.W.2d 97 (Tex. Crim. App. 1973)........................................................15

Stiner v. State, 

No. 14-13-01118-CR, 2015 Tex. App. LEXIS 1119 (Tex. App. Houston 

[14th Dist.] Feb. 5, 2015, pet. ref’d.) (mem. op. not design. for pub.)....................27

Teinert v. State, 

No. 01-13-00088-CR, 2014 Tex. App. LEXIS 1478 (Tex. App. Houston [1st 

Dist.] Feb. 11, 2014, no pet.) (mem. op. not design. for pub.)......................26

Uranga v. State, 

No. 08-12-00161-CR, 2013 Tex. App. LEXIS 12846 (Tex. App. - El Paso 

Oct. 16, 2013, no pet.) (mem. op. not design. for pub.)................................11

Valdez v. State, 

No. 10-12-00410-CR, 2014 Tex. App. Lexis 1375 (Tex. App. – Waco 

February 6, 2014, pet. ref’d.) (mem. op. not design. for pub.)..............14, 15, 24, 25

Von Schounmacher v. State, 

5 S.W.3d 221 (Tex. Crim. App. 1999)..........................................................12

Williams v. State, 

No. 12-01-00311-CR, 2003 Tex. App. LEXIS 3328, 2003 WL 1883474 

(Tex. App.--Tyler Apr. 16, 2003, no pet.) (mem. op., not designated for 

pub.)...............................................................................................................23

Williamson v. State, 

175 S.W.3d 522 (Tex. App. – Texarkana 2005, no pet.) ....................9, 18, 21

Winchester v. State,

246 S.W.3d 386 (Tex. App. – Amarillo 2008, pet. ref’d.)......................11, 21
xi

STATE STATUTES

Tex. Const. Art. I, §13 .............................................................................................13

Tex. Code Crim. Proc. Art. 42.12, Sec. 3(g) (West 2014) ......................................18

Tex. Gov't Code §508.046 (West 2014)..................................................................18

Tex. Gov't Code §508.145(d) (West 2014) .............................................................18

Tex. Pen. Code Sec. 12.32 (West 2013)..................................................................12

Tex. Penal Code Ann. §12.42(c) (3) (West Supp. 2007) (enacted 2007)................18

Tex. Pen. Code Ann. §22.021(a) (1) (B) (iii) (West 2013) ...........................1, 12, 18

Tex. Pen. Code Ann. §22.021(e) (West 2013).....................................................1, 12

STATE RULES

Tex. R. App. P. 21.8(a), (c)........................................................................................2

TEX. R. APP. P. 41.3 .................................................................................................11

TEX. R. APP. P. 47.1 .................................................................................................24

TEX. R. APP. P. 47.4 .................................................................................................24

OTHER STATES’ STATUTES

LA. REV. STAT. ANN. §14:42(D) (2) (a) (2005)..................................................18

GA. CODE ANN. §16-6-1(b) (2005)......................................................................18

MT CODE ANN. §45-5-503 (2007) (enacted 1997)...............................................18

OK STAT. TIT. 10, §7115(K) (West 2007 Supp.) (enacted 2006).........................18

SC CODE ANN. §16-3-655(C) (1) (Supp. 2007) (enacted 2006) .........................18
1

ORAL ARGUMENT

TO THE HONORABLE COURT OF APPEALS:

The State does not request oral argument since oral argument would not be 

of assistance to this Court. 

STATEMENT OF THE CASE

This is a criminal prosecution for Aggravated Sexual Assault of a Child. On 

June 25, 2013, the Grand Jury indicted Appellant, Jake Henry Oglesby, with 

Aggravated Sexual Assault of a Child by intentionally or knowingly causing the 

sexual organ of a male child younger than fourteen years of age, to contact or 

penetrate the mouth of Appellant.1

The indictment was filed for violation of §22.021(a) (1) (B) (iii) of the Texas 

Penal Code, 2 punishable as a Felony of the First Degree under §22.021(e) of the 

Texas Penal Code.3

 1 (1 CR 4). 2 See Tex. Pen. Code Ann. §22.021(a) (1) (B) (iii) (West 2013). 3 See Tex. Pen. Code Ann. §22.021(e) (West 2013).
2

Appellant entered a plea of guilty to the above referenced charge on 

February 5, 2014.4

 The trial court deferred the finding of guilt and placed 

Appellant on ten years deferred adjudication.5

The State filed a Motion to Adjudicate Guilt and Revoke Community 

Supervision on May 16, 2014. The Motion alleged Appellant violated three 

conditions of his deferred adjudication.6

Appellant entered a plea of not true to each allegation.7 Testimony was 

taken on August 29, September 3, 15, 22, and October 3, 2014. On October 29, 

2014, the trial court found two of the three alleged violations true.8 On that same 

date, the trial court adjudicated Appellant guilty of the offense alleged in the 

indictment and sentenced Appellant to forty (40) years in the Texas Department of 

Criminal Justice – Institutional Division.9

Trial counsel filed a Motion for New Trial and Motion in Arrest of Judgment 

on November 21, 2014. It was denied by operation of law on February 4, 2015.10

Notice of Appeal was filed timely on December 1, 2014.11

 4 (1 CR 56-59). 5 (1 CR 84-85). 6 (1 CR 76-77). 7 (2 RR 5). 8 (7 RR 4). 9 (7 RR 5). 10 See Tex. R. App. P. 21.8(a), (c). 11 (1 CR 114 – 117).
3

REPLY TO THE ISSUES PRESENTED 

Reply to Issue Number One:

Appellant’s sentence is neither cruel nor unusual under the Texas 

Constitution.

Reply to Issue Number Two: 

Appellant’s sentence is neither cruel nor unusual under the Eighth

Amendment of the United States Constitution.

Reply to Issue Number Three: 

Appellant’s sentence is not grossly disproportional given his original 

offense.

STATEMENT OF FACTS

“I saw Mr. Oglesby as a very disturbed young man.”12

This case is about a very disturbed young man who sexually assaulted a 

child, was given a second chance by being placed on deferred adjudication 

probation, then violated his probation within 3 months of receiving it, and now 

complains of being sentenced to prison.13

 12 (2 RR 11). 13 Appellant only challenges the severity of the sentence and not the sufficiency of the evidence 

to revoke.
4

Dr. William Carter was the first witness called by the defense. He was 

called as an expert to assist the defense in relation to the allegations concerning the 

motion to adjudicate. Dr. Carter testified that, based upon his examination of 

Appellant, he diagnosed him as having two different personality disorders.14

“His prognosis in all areas is poor and that would include a high 

likelihood of recidivism.”

When 

asked by defense counsel of Appellant’s likelihood for re-offending, Dr. Carter 

responded:

15

Dr. Carter went on to testify prison was the only place that could address 

Appellant’s mental health needs given the limited options of continuing on 

probation or incarceration. 16 Dr. Carter did testify Appellant was mentally 

competent and so competency was not an issue.17

Dr. Carter also testified to the treatment programs in prison.

His opinion was that there was a 

high probability Appellant would continue to be a substantially disturbed person 

for 5, 10 or 30 years into the future. 

18

Dr. Carter repeated that Appellant was at high risk to re-offend and even in 

thirty years would still be sexually disturbed and even deviant.19

 14 (2 RR 11, 12) The disorders were borderline personality disorder and histrionic personality 

disorder. 

During cross15 (2 RR 18) The doctor’s psychological evaluation was entered and admitted into evidence as 

Defendant’s Exhibit No. 1 (2 RR 9).

16 (2 RR 22). 17 (2 RR 22, 23). 18 (2 RR 27, 28) Dr. Carter did admit the treatment options in prison were limited.
5

examination, Dr. Carter was asked if it were likely Appellant would re-offend 

against children:

“Q. Because in your opinion, Doctor, he has a high risk of 

reoffending?

A. Yes.

Q. With the same type of victims that he’s gone after before?

A. Yes.

Q. Would you agree the best option in this case is confinement?

A. Yes.”20

Dr. Carter, who, remember, was Appellant’s own witness, went on to testify 

that due to Appellant’s prognosis, it would be important for him to be kept out of 

the community and prison was really the only option.21

Testimony was also taken concerning the original offense for which 

Appellant was placed on deferred adjudication. Gatesville police Detective Dennis 

Fueston testified about his investigation into the offense. He stated the offense 

involved Appellant touching a five-year-old victim’s male sex organ with 

Appellant’s mouth.22

 19 (2 RR 34).

Detective Fueston, who has 13 to 14 years of investigating 

sex offenses, was asked his professional opinion of Appellant’s risk of re20 (2 RR 36, 37) The victim in this case was Appellant’s six-year-old cousin (2 RR 35, 42).

21 (2 RR 45) Dr. Carter also testified he would be concerned if Appellant were around a public 

park or somewhere where there were small children (2 RR 48). He stated Appellant had a 

much higher risk of re-offending against children that were around him and known to him (2 

RR 43). 

22 (3 RR78) Previous testimony placed the victim’s age at six years old. The Order of Deferred 

Adjudication sets the child’s age at six years (1 CR 84).
6

offending. He stated that he believed Appellant would be at high risk of 

committing similar offenses.23

The State asked the Court for the maximum sentence. The State asked the 

Court to consider the original offense, Appellant’s failure to comply with the terms 

and conditions of his deferred adjudication and the testimony of the defense’s own 

expert concerning Appellant’s high risk of re-offending until he was of sufficient 

age to be physically unable to re-offend. The State concluded its argument by 

stating:

“This is someone who is a high risk to society, and he does not need 

to be given the chance to be around anyone to get hurt.”24

Since Appellant challenges the appropriateness of his sentence, the Court’s 

comment during sentencing should be considered.

“The Court has considered the relief that’s being requested, and the 

Court will be brief in its sentencing, but the Court will comment 

briefly on a few issues because of the nature of this matter brought 

before the Court.”25

The Court first noted the terms of the original plea agreement, and then it 

noted that both sides agreed to waive the presentence investigation and the court

did waive it. The Court considered all of the evidence presented and found 

 23 (3 RR 81, 97, 98) The detective expressed concern that Appellant had violated his probation 

after only three months (3 RR 81). Detective Fueston also testified about a second allegation 

against Appellant concerning a similar sexual offense against another child, which was 

subsequently dismissed (3 RR 79-80, 89).

24 (6 RR 52 – 58). 25 (7 RR 4).
7

Appellant did violate two of the terms and conditions of his probation. After 

adjudicating Appellant guilty of the original offense, the Court commented it 

would not sentence Appellant to Life as requested by the State, but, under the 

circumstances, could not continue Appellant on probation. The Court sentenced 

Appellant to forty years.26

SUMMARY OF ARGUMENT

Appellant raises three constitutional challenges to his forty-year sentence. 

Appellant first challenges the sentence under the Texas Constitution. Appellant 

then brings two challenges under the Eighth Amendment of the United States 

Constitution. He asserts the forty-year sentence is cruel and unusual and grossly 

disproportionate.27

The State argues the forty-year sentence was appropriate given the original 

offense of Aggravated Sexual Assault of a Child. It was within the prescribed 

statutory range. It does not violate either the Texas Constitution or the Eighth

Amendment of the United States Constitution. Given the serious nature of this sex 

crime committed by the Defendant against a child, and further, given the testimony 

 26 (7 RR 4,5) The Court also ordered a post-sentence investigation for purposes of assisting the 

Texas Department of Criminal Justice for Appellant’s placement in an appropriate unit (7 RR 

8). 

27 See Appellant’s Brief at page 4. Appellant states the sentence was 99 years, which is 

incorrect. Appellant correctly states the term of imprisonment at 40 years in his Statement of 

the Case at page ix.
8

of the Defendant’s own expert, the sentence of forty years is not disproportionate 

to the crime.

Appellant has failed to show his sentence was unconstitutional or 

disproportionate. The State asks Appellant’s conviction and punishment be 

affirmed.

Reply to Issue Number One Restated: 

Appellant’s sentence is neither cruel nor unusual under the Texas 

Constitution.

Reply to Issue Number Two Restated:

Appellant’s sentence is neither cruel nor unusual under the Eighth

Amendment of the United States Constitution.

Reply to Issue Number Three Restated: 

Appellant’s sentence is not grossly disproportional given his original 

offense.

ARGUMENT AND AUTHORITIES

A. The Standard of Review

A judge’s sentencing decision is discretionary as long as it is within the 

range of punishment. The decision of what particular punishment to assess within 

the prescribed statutory range is a “normative, discretionary function” and the 
9

sentencer’s discretion is “essentially unfettered.” 28 The sentencing judge is 

allowed a great deal of discretion. An appellate review of a judge’s decision as to 

punishment should not be disturbed absent a showing of abuse of discretion and 

harm.29 The standard of review of a sentence imposed by the trial court is for an 

abuse of discretion.30 Further, the severity of a sentence is reviewable on appeal 

only under a gross-disproportionality standard when the sentence is within the 

legislatively prescribed range, is based upon the sentencer’s informed normative 

judgment, and is in accordance with due process of law.31

B. Preservation of Error

Appellant timely filed a motion for new trial complaining of the sentence as 

“cruel and unusual” under the Texas and United States Constitutions because it 

was grossly disproportionate to the crime. 32 The State concedes error was 

preserved.33

 28 Barrow v. State, 207 S.W. 3d 377, 379-81 (Tex. Crim. App. 2006); Jarvis v. State, 315 S.W. 

3d 158, 162 (Tex. App. – Beaumont 2010, no pet. hist.).

29 Jackson v. State, 680 S.W. 2d 809, 814 (Tex. Crim. App. 1984).

30 Id; Morrison v. State, 2013 Tex. App. LEXIS 6527, No. 11-11-00191-CR at *13 (Tex. App. 

– Eastland, May 30, 2013, pet. ref’d.) (mem. op. not design. for pub.).

31 See Jarvis v. State, 315 S.W. 3d 158, 162 (Tex. App. – Beaumont 2010, no pet. hist.); Ex 

parte Chavez, 213 S.W. 3d 320, 323-24 (Tex. Crim. App. 2006); see also Lockyer v. 

Andrade, 538 U.S. 63, 72-73, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). 

32 (1 CR 10-12) Appellant’s Motion for New Trial does not address the difference between 

“cruel and unusual” and “cruel or unusual” as advanced in his Appellate Brief. Appellant 

does not complain of the denial of his Motion for New Trial. 

33 Williamson v. State, 175 S.W. 3d 522, 524 (Tex. App. – Texarkana 2005, no pet.) A motion 

for new trial is an appropriate way to preserve this claim for review.
10

C. Argument

The State acknowledges Appellant is a disturbed individual with coexisting 

personality disorders. The State further acknowledges Appellant suffered severe 

sexual abuse as a child as detailed in Dr. Carter’s testimony and in Appellant’s 

Brief. However, Appellant’s personality disorders do not rise to the level of 

insanity.34

Generally, a sentence that falls within the range of punishment authorized by 

statute is not cruel, unusual or excessive.

Nor do his past experiences of abuse excuse his own sexual assault of 

another young innocent.

35 A narrow exception to this rule is 

recognized when the sentence is grossly disproportionate to the offense.36 The 

U.S. Supreme Court applied the “grossly disproportionate” standard in Solem v. 

Helm, a non-death penalty case.37 However, after the Supreme Court's decision in 

Harmelin v. Michigan, a question arose as to whether the Eighth Amendment did or 

did not prohibit disproportionate sentences in non-death-penalty cases.38

 34 Appellant concedes his sanity at the time of the offense. See Appellant’s Brief at page 7.

The Fifth 

Circuit of the United States Court of Appeals concluded in McGruder v. Puckett

35 Jackson v. State, 680 S.W. 2d 809, 814 (Tex. Crim. App. 1984); Alvarez v. State, 63 S.W. 3d 

578, 580 (Tex. App. – Fort Worth 2001, no pet.); Dale v. State, 170 S.W. 3d 797, 799 (Tex. 

App. – Fort Worth 2005, no pet.).

36 Dale, 170 S.W. 3d at 799, citing Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 2680, 

2706-2707, 115 L. Ed. 2d 836 (1991) (Kennedy J. concurring); Solem v. Helm, 463 U.S. 277, 

290-92, 103 3001, 3009-3011, 77 L. Ed. 2d 637 (1983); McGruder v. Puckett, 954 F. 2d 313, 

316 (5th Cir.), cert. denied, 506 U.S. 849, 113 146, 121 L. Ed. 2d 98 (1992). 37 Solem v. Helm, 463 U.S. 277, 290-92, 103 S. Ct. 3001, 3009-3011, 77 L. Ed. 2d 637 (1983).

38 Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 2680, 2706-2707, 115 L. Ed. 2d 836 

(1991) (Kennedy J. concurring).
11

the proportionality analysis survived Harmelin, but Solem did not.39 The Fifth 

Circuit determined that Harmelin required a reviewing court to initially make a 

threshold comparison of the gravity of the defendant's offenses against the severity 

of his sentence.40 Only if the reviewing court finds that the sentence is grossly 

disproportionate to the offense (the first Solem factor), will it consider the 

remaining Solem factors 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.41

Many Texas intermediate appellate courts, including the Seventh and Tenth 

Courts of Appeals, have adopted McGruder's modified approach.42

The questions to answer in a disproportionality analysis therefore are: (1) 

Was the sentence in the statutory range? (2) Was the sentence grossly 

disproportionate? And, if so, (3) Was the sentence different from sentences 

imposed in the same and other jurisdictions?

 39 McGruder, 954 F. 2d at 316. 40 Id. 41 Id. 42 See Winchester v. State, 246 S.W. 3d 386, 388 – 391, (Tex. App. – Amarillo 2008, pet. 

ref’d.) for an excellent discussion of the evolution of disproportionality under the Solem, 

Harmelin and McGruder decisions, and for a complete list of the intermediate appellate 

courts following McGruder. See also Dunn v. State, 997 S.W. 2d 885, 892 (Waco 1999, pet. 

ref'd). (Since the Texas Supreme Court transferred this appeal from the Tenth Court of 

Appeals to the Seventh Court of Appeals pursuant to a docket equalization order, this Court 

should decide the case in accordance with the precedent of the transferor court under 

principles of stare decisis if its decision otherwise would be inconsistent with the precedent 

of the transferor court). Tex. R. App. P. 41.3; See also Uranga v. State, 2013 Tex. App. 

LEXIS 12846 (Tex. App. El Paso, Oct. 16, 2013, no pet.) (mem. op. not design. for pub.).
12

1. Appellant’s Sentence is Within the Prescribed Statutory 

Range

Appellant was convicted of Aggravated Sexual Assault of a Child, a 

violation of §22.021(a) (1) (B) (iii) of the Texas Penal Code, 43 which is punishable 

as a Felony of the First Degree under §22.021(e) of the Texas Penal Code.44 A 

first-degree felony carries a punishment of from 5 to 99 years or life.45 Appellant’s 

sentence of forty years was not only well within the prescribed sentencing range,

but somewhat less than the maximum sentence.

46

Generally, punishment assessed within the statutory range for an offense is 

neither excessive nor unconstitutionally cruel or unusual. 47 When deferred 

adjudication community supervision is revoked, the trial court may generally 

impose any punishment within the range authorized by statute.48 In addition, the 

punishment imposed is not for the community supervision violations, but rather for 

the gravity of the initial offense.49

Since the sentence imposed is well within the statutory range of punishment, 

the sentence, under the general rule, is neither cruel nor unusual. As previously 

 43 See Tex. Pen. Code Ann. §22.021(a) (1) (B) (iii) (West 2013).

44 See Tex. Pen. Code Ann. §22.021 (e) (West 2013).

45 See Tex. Pen. Code Sec. 12.32 (West 2011).

46 Appellant concedes that his sentence was within the statutory range of punishment. See

Appellant’s Brief at page 12.

47 Kirk v. State, 949 S.W. 2d 769, 772 (Tex. App.--Dallas 1997, pet. ref'd); see also Jackson v. 

State, 680 S.W. 2d 809, 814 (Tex. Crim. App. 1984) As long as a sentence is within the 

proper range of punishment, it will not be disturbed on appeal. 

48 Von Schounmacher v. State, 5 S.W. 3d 221, 223 (Tex. Crim. App. 1999). 49 See Lawrence v. State, 420 S.W. 3d 329, 333 (Tex. App. – Fort Worth 2014, pet. ref’d.).
13

discussed, a narrow exception to the general rule is recognized, however, when the 

sentence is grossly disproportionate to the offense.

50 Here, Appellant claims 

disproportionality under both the Texas and United States Constitutions. Appellant 

also argues the Texas Constitutional provision provides protection against either 

cruel or unusual punishment.

51

2. Cruel and/or Unusual Punishment under the Texas 

Constitution and the Eighth Amendment.

The Texas Constitution provides protection against “cruel or unusual” 

punishments.52 The Eighth Amendment to the United States Constitution provides 

protection against “cruel and unusual” punishments.53

a. Cruel “or” Unusual v. Cruel “and” Unusual – A 

Distinction without a Difference

Appellant argues the framers of the Texas Constitution used different 

terminology than the Federal Constitution for a purpose. He posits the use of the 

word “or” evidences an intent to protect against either cruel or unusual 

punishments.54

 50 Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)

(Kennedy J. concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103 S. Ct. 3001, 77 L. Ed. 2d 

637 (1983); Dale, 170 S.W. 3d 797at 799 (Tex. App. – Fort Worth 2005, no pet.).

However, Texas Courts have consistently concluded there is no 

51 However, Appellant ultimately conceded the Texas Constitution does not provide greater 

protection than the U.S. Constitution. (See Appellant’s Brief at page 23.). 52 Tex. Const. Art. I, §13: “Excessive bail shall not be required, nor excessive fines imposed 

nor cruel or unusual punishments inflicted.”

53 U.S. Const. Amend. VIII: “Excessive bail shall not be required, nor excessive fines imposed, 

nor cruel and unusual punishments inflicted.”

54 See Appellant’s Brief at page 11.
14

significant difference between the United States and Texas Constitutional 

provisions prohibiting cruel and unusual punishment. 55 The Court of Criminal 

Appeals has held there is no significance to the difference in phrasing.56 Although 

Appellant encourages this court nevertheless to recognize a distinction, this Court 

is bound by the decisions of the higher court.57

b. Appellant’s punishment should be analyzed under 

federal and state constitutional provisions jointly.

Since the Texas Constitution’s “cruel or unusual” punishment provision 

affords no greater protection than its federal counterpart does, the analysis of 

Appellant’s punishment contention should be performed under both constitutional 

provisions jointly and not separately.58

 55 See Cantu v. State, 939 S.W. 2d 627, 645 (Tex. Crim. App. 1997) comparing Texas 

Constitution Article I, Section 13 with United States Constitution Amendment VIII. See 

Jackson v. State, 989 S.W. 2d 842, 845 (Tex. App.--Texarkana 1999, no pet.) declining to 

afford greater rights regarding cruel and unjust punishment under Texas Constitution than are 

afforded under the United States Constitution.

As previously noted, Appellant’s sentence 

56 See Id (refusing to interpret the language of the Texas Constitution as more expansive than 

that of the federal constitution); Lewis v. State, 448 S.W. 3d 138, 147 (Tex. App. Houston 

14th Dist. 2014, pet. ref’d.); Valdez v. State, 2014 Tex. App. Lexis 1375 at FN 2 (Tex. App. –

Waco February 6, 2014, pet. ref’d.) (mem. op. not design. for pub.) See the note from Chief 

Justice Gray. 57 See Mason v. State, 416 S.W. 3d 720, 728 n.10 (Tex. App.--Houston [14th Dist.] 2013, pet. 

ref'd) "When the Court of Criminal Appeals has deliberately and unequivocally interpreted 

the law in a criminal matter, we must adhere to its interpretation under the dictates of vertical 

stare decisis." See also Lewis v. State, 448 S.W. 3d 138, 146 (Tex. App. – Houston [14th

Dist.] 2014, pet. ref’d.).

58 See Ajisebutu v. State, 236 S.W. 3d 309, 311 (Tex. App. – Houston [1st Dist.] 2007, pet. 

ref’d). When both federal and state constitutional challenges to the punishment assessed have 

been preserved, Texas Courts of Appeals have addressed these federal and state 

constitutional provisions jointly. See Baldridge v. State, 77 S.W. 3d 890, 893-94 (Tex. App.-

-Houston [14th Dist.] 2002, pet. ref'd) and Jackson v. State, 989 S.W. 2d 842, 845 (Tex.

App.--Texarkana 1999, no pet.).
15

was in the statutory range of punishment. Generally, a sentence within the 

statutory range of punishment for an offense will not be held cruel or unusual 

under the Constitution of either Texas or the United States.59 The length of a 

criminal sentence is purely a matter of legislative prerogative.60 Texas has long 

held that punishments falling within the prescribed statutory limitations are not 

cruel and unusual within the meaning of the Texas Constitution.61

Further, the reasonableness of punishments assessed by juries and trial 

courts in this State should not be questioned if they are within the range of 

punishment prescribed by statute for the offense "unless they are so plainly 

disproportionate to the offense as to shock the sense of humankind and thus 

constitute cruel and unusual punishments prohibited by the United States and 

Texas Constitutions." 62

 59 Ajisebutu at 314; Harris v. State, 656 S.W. 2d 481, 486 (Tex. Crim. App. 1983).

Given the facts and circumstances of this case, along with 

Appellant’s punishment being only a little over mid-range for the offense 

committed, Appellant’s forty-year sentence cannot be considered cruel and/or 

unusual in violation of either the Texas Constitution or the Eighth Amendment.

60 Harmelin v. Michigan, 501 U.S. 957, 962, 111 S. Ct. 2680, 2684, 115 L. Ed. 2d 836 (1991); 

State ex rel. Smith v. Blackwell, 500 S.W. 2d 97, 104 (Tex. Crim. App. 1973). 61 See Harris v. State, 656 S.W. 2d 481, 486 (Tex. Crim. App. 1983); Price v. State, 35 S.W. 3d 

136, 144 (Tex. App.--Waco 2000, pet. ref'd) (op. on reh'g); Moore v. State, 54 S.W. 3d 529, 

541 (Tex. App. Fort Worth 2001, pet. ref’d.).

62 See Hyde v. State, 723 S.W. 2d 754, 755 (Tex. App.--Texarkana 1986, no pet.); see also 

Hernandez v. State, No. B14-92-00704-CR, 1994 Tex. App. LEXIS 2182, at *17-18 (Tex. 

App.--Houston [14th Dist.] Sept. 1, 1994, no pet.) (mem. op., not design. for pub.); Valdez v. 

State, 2014 Tex. App. Lexis 1375 at FN 2 (Tex. App. – Waco February 6, 2014, pet. ref’d.) 

(mem. op. not design. for pub.).
16

3. The Disproportionality Analysis

A narrow exception to the general rule that a sentence within the statutory 

range is not cruel and unusual is when the sentence is found to be grossly 

disproportionate to the offense.63 In such cases, the sentence violates the Eighth

Amendment's prohibition against cruel and unusual punishment. 64 Thus, a 

prohibition against grossly disproportionate punishment survives under the Federal 

Constitution apart from any consideration of whether the punishment assessed is 

within the statute's range.65

a. The Threshold Comparison

This is the third issue presented by Appellant. Having 

settled Appellant is not entitled to any greater protection under the Texas 

Constitution than the Eighth Amendment, and the forty-year sentence for 

Aggravated Sexual Assault of a Child does not generally violate either the Texas 

Constitution or the Eighth Amendment, the next question, is whether Appellant’s 

sentence of forty years is grossly disproportionate.

The first step in a disproportionality analysis is a comparison of the 

 63 Sneed v. State, 406 S.W. 3d 638, 643 (Tex. App. – Eastland 2013, no pet.); Harmelin v. 

Michigan, 501 U.S. 957, 1004-05, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy J. 

concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); 

Dale v. State, 170 S.W. 3d 797 at 799 (Tex. App. – Fort Worth 2005, no pet.). 64 Sneed at 643; Solem, 463 U.S. at 290; Diaz-Galvan v. State, 942 S.W. 2d 185, 186 (Tex. 

App.--Houston [1st Dist.] 1997, pet. ref'd).

65 Sneed at 643; Delacruz v. State, 167 S.W. 3d 904, 906 (Tex. App.--Texarkana 2005, no pet.).

However, “outside the context of capital punishment, successful challenges to the 

proportionality of particular sentences [will be] exceedingly rare.” Solem, 463 U.S. at 289-

90 (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980)).
17

seriousness of the offense against the severity of the sentence. In considering a 

claim that a sentence is disproportionate, the appellate court must first make a 

threshold comparison of the gravity of an appellant's offense against the severity of 

his or her sentence.66 The court should consider the gravity of the offense in light 

of the harm caused or threatened to the victim or society, and the culpability of the 

offender.67 Therefore, the Appellate Court is looking at two issues as it begins its 

disproportionality analysis. The first is the offense itself. The second is the harm 

already caused to the victim and the future risk of harm posed by the offender. 

Only if a finding that the sentence is grossly disproportionate to the offense is 

made, should the appellate court then compare the sentence received to sentences 

imposed for similar crimes in Texas and for the same crime in other jurisdictions.68

b. The Offense

Appellant pled guilty to intentionally or knowingly causing the sexual organ 

of a child younger than 14 years old to contact or penetrate the mouth of Appellant 

as charged in the indictment.69

 66 Sneed at 643; McGruder v. Puckett, 954 F. 2d 313, 316 (5th Cir. 1992); Dale, 170 S.W. 3d at 

799-800.

The offense of Sexual Assault of a Child is a 

particularly troublesome offense insomuch as it not only physically affects the

child, but also can emotionally scar the child for life. “Certainly the great 

67 Solem, 463 U.S. at 292; Dale, 170 S.W. 3d at 800. 68 Sneed at 643; McGruder, 954 F. 2d at 316; Dale, 170 S.W. 3d at 800. 69 (1 CR 4, 57-63) (5 RR 57) Appellant later testified during his revocation hearing that he pled 

guilty to the charge because he was afraid of what might happen to him in prison and he 

never hurt a child in his entire life (5 RR 82).
18

potentiality for mental, emotional, and physical scarring of a sexual assault victim 

– a child of such tender years – cannot be seriously questioned. Short of murder, 

we cannot envision a crime of greater infamy perpetrated against a child of such 

tender years.”70

Punishments towards those convicted of sexually abusing children are 

evolving towards harsher sentencing.71 Additionally, the Texas Legislature has 

taken various steps to demonstrate the extreme gravity with which aggravated 

sexual assault on children is viewed. Aggravated Sexual Assault on a Child under 

14 years of age is a first-degree felony regardless of whether any other violence is 

present, and the offense is classified as a “3g” offense for purposes of parole.72

 70 Matthews v. State, 918 S.W. 2d 666 (Tex. App. – Beaumont 1996 pet. ref’d.) Matthews 

initially pleaded guilty to having vaginal intercourse with a female victim who was younger 

than fourteen years old at the time of the offense.

71 Before the Supreme Court took the death penalty for child rape off the table, see Kennedy v. 

Louisiana, 554 U.S. 407, 423 (U.S. 2008), Texas and five other states (Georgia, Oklahoma, 

South Carolina, Montana and Louisiana) had provided the death penalty may be assessed in 

cases involving the rape of a child. LA. REV. STAT. ANN. §14:42(D) (2) (a) (2005); GA.

CODE ANN. §16-6-1(b) (2005); MT CODE ANN. §45-5-503 (2007) (enacted 1997); OK 

STAT. TIT. 10, §7115(K) (West 2007 Supp.); SC CODE ANN. §16-3-655(C) (1) (Supp. 

2007) (enacted 2006). Texas had also indicated a desire to more seriously punish those who 

sexually assault children by the passage of Texas Penal Code 12.42(c) (3), which made 

certain aggravated sex offenses against children a capital offense. See Tex. Penal Code Ann. 

§12.42(c) (3) (West Supp. 2007) (enacted 2007), and §22.021(a). See also Williamson v. 

State, 175 S.W. 3d 522, 525 (Tex. App. Texarkana 2005, no pet.).

72 See Tex. Gov't Code §508.145(d) (West 2014). See also Tex. Code Crim. Proc. Art. 42.12, 

Sec. 3(g) (West 2014) and Tex. Gov't Code §508.046 (West 2014); Baletka v. State, 2005 

Tex. App. LEXIS 1355, 5-6 (Tex. App. Beaumont, Feb. 16, 2005, no pet.) (mem. op. not 

design. for pub.).
19

c. The Offender and His Victim

Appellant touched a six-year-old’s male sexual organ with his mouth. 73

Now, in his brief, Appellant goes on at great length to excuse his behavior due to 

his own severe sexual victimization as a child and argues his culpability was 

diminished by his disorders. Appellant further argues he is not “morally deserving 

of punishment.”74

While the State is not unsympathetic to Appellant, of greater concern to the 

State is the child victim in this case and the potential for future child victims, were 

Appellant to be released from prison. The testimony of Appellant’s own witness, 

Dr. Carter, is particular damning to Appellant’s cause. Dr. Carter was asked about 

whether he knew if the victim in this case was developmentally slower than an 

average child was:

“Q. When Mr. Oglesby looks at these children, they’re young and 

their small. If I were to tell you that they were slowerdeveloping...developing children, would that surprise you as being 

the victims in the cases?

A. No.

Q. And, Mr. Oglesby knowing that he’s not a fighter, or maybe he’s 

not the most physically able individual, does that make sense to you 

that he chose these victims?

“A. Right. That would be who he could relate to emotionally and he 

doesn’t have the sophistication to pull somebody into victimization 

(sic) that might be older. So it makes sense that he would turn to 

younger children.

 73 (3 RR 78). The victim was described by Lt. Fueston as five years old. The victim was also 

described as a six-year-old by Dr. Carter (2 RR 35).

74 See Appellant’s Brief at pages 1–3, 22, 23.
20

“Q. And he’s also physically stronger than those individuals?

A. Right.”75

The individual in the best position to forecast Appellant’s future behavior 

finds Appellant someone who is physically and developmentally weak, did prey 

and is likely to continue to prey, on victims who were physically and 

developmentally weak as well. Not only is he likely to prey on children, but on 

those children who are most vulnerable. 

Moments later, Dr. Carter delivered the knockout blow to Appellant’s cause:

“Q. Because in your opinion, Doctor, he has a high risk of 

reoffending?

A. Yes.

Q. With the same type of victims that he’s gone after before?

A. Yes.

Q. Would you agree that the best option in this case is confinement?

A. Yes.”76

The gravity of the offense should also be judged in light of the harm caused 

or threatened to the victim or society and the culpability of the offender.77

Here, Dr. Carter left no doubt as to the future dangerousness of Appellant. 

Appellant’s sentence is not grossly disproportionate to the offense.

 75 (2 RR 35, 36). 76 (2 RR 36, 37). 77 See Alvarez v. State, 63 S.W. 3d 578, 581 (Tex. App. – Fort Worth 2001 no pet.) “Appellant 

admitted to committing Aggravated Sexual Assault of a Child by intentionally causing his 

penis to contact the sexual organ of his five- year-old daughter. Given the nature of the 

offense, Appellant's relationship to the child victim, and his wife's testimony that Appellant 

would have continued access to his daughter should he be released from custody, we cannot 

conclude his fifty-five-year sentence is grossly disproportionate to the offense.” See also

Moore v. State, 54 S.W. 3d 529, 542 (Tex. App.--Fort Worth 2001, pet. refused).
21

d. Appellant Fails to Make it Past the Disproportionality 

Threshold

Since Appellant has failed to show his sentence is grossly disproportionate 

to the offense, this Court does not need to consider the other Solem factors.78

e. The Other Solem Factors

However, out of an abundance of caution, the State will discuss whether these 

other factors would provide Appellant any relief.

The other Solem factors, as previously discussed, are: (1) The sentences 

imposed on other criminals in the same jurisdiction; and (2) The sentences 

imposed for commission of the same crime in other jurisdictions.79

Appellant has not provided any evidence of comparative sentencing either in 

this jurisdiction or in other jurisdictions. 80 However, other Texas courts have 

found similar sentences not disproportionate.81

In Holt v. State, Holt pled guilty to two counts of Aggravated Sexual Assault 

of a Child under fourteen. Holt's father testified that Holt should be "locked up in 

a facility where he can get the help he needs" and that he "by no means" wanted 

Holt to "walk out of here.” Similarly, Dr. Kantz, a sex offender treatment provider, 

 78 See Winchester v. State, 246 S.W. 3d 386, 389 (Tex. App. – Amarillo, 2008, pet. ref’d).

79 See Id.

80 See Williamson v. State, 175 S.W. 3d 522, 525 (Tex. App. – Texarkana 2005, no pet.)

81 Considering that Appellant has not provided any evidence of comparative sentencing and 

several Texas courts have found similar sentences not disproportionate, the State does not 

believe that any purpose would be served in examining other states’ sentences for 

Aggravated Sexual Assault of a Child. 
22

recognized Holt "should never be in the vicinity of children.” The Fort Worth 

Court found a fifty-year sentence on each count was within the permissible range 

of sentencing and not disproportionate.82

The Fort Worth Court also found a fifty-five-year sentence was not

disproportionate in another Aggravated Sexual Assault of a Child case. The Court 

considered the offense, the relationship of the defendant to the victim (his five-year 

old-daughter) and the fact that the defendant would have had continued access to 

his daughter should he be released from custody.

 

83

The Houston Court of Appeals for the Fourteenth District found a forty-fiveyear sentence for Aggravated Sexual Assault of a Child was not disproportionate. 

The Court first noted the Texas Legislature has determined the first-degree felony 

of Aggravated Sexual Assault of a Child less than fourteen years of age is 

punishable by imprisonment for life, or by imprisonment for five to ninety-nine 

years. The Court further noted this legislative policy determination is entitled to 

wide deference.

 

84

 82 Holt v. State, 2007 Tex. App. LEXIS 3627 (Tex. App. Fort Worth, May 10, 2007, no pet.) 

(mem. op. not design. for pub.). 83 Alvarez v. State, 63 S.W. 3d 578, 581 (Tex. App. Fort Worth 2001, no pet.). 84 Muzquiz v. State, 2015 Tex. App. LEXIS 960 (Tex. App. Houston 14th Dist. Feb. 3, 2015, no 

pet, hist.) (mem. op. not design. for pub.), Harmelin v. Michigan, 501 U.S. 957, 998, 111 S. 

Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J. concurring) (plurality opinion); see also, 

Holder v. State, 643 S.W. 2d 718, 721 (Tex. Crim. App. 1982) multiple life sentences 

resulting from convictions in three incidents of aggravated sexual abuse did not violate the 

Eighth Amendment; Arriaga v. State, 335 S.W. 3d 331, 336 (Tex. App.—Houston [14th 
23

The Houston 14th Court of Appeals, in another case, found the trial court's 

sentence of life imprisonment was not grossly disproportionate to the appellant's 

commission of Aggravated Sexual Assault of a Child less than fourteen years of 

age, the crime to which Appellant pleaded guilty.85

This Honorable Court found a life sentence for an aggravated sexual assault 

of a six-year-old was not disproportionate. This Court noted the defendant 

“attempted to shift the blame for his penetration of a six-year-old onto the child 

and her alleged promiscuity. That the child was six and that every adult should 

know that one does not have sex with a six-year-old merited no comment by him, 

however. Yet, it does illustrate the depravity of his crime and mind set.”86

The Beaumont court found two concurrent terms of life imprisonment on 

two counts of Aggravated Sexual Assault of a Child not grossly disproportionate.87

The Waco Court found punishment of forty years' imprisonment for 

 

Dist.] 2010, pet. ref'd) a life sentence for Aggravated Sexual Assault of a Child did not 

violate the Eighth Amendment. 

85 Arriaga v. State, 335 S.W. 3d 331, 336 (Tex. App. Houston 14th Dist. 2010, pet. ref’d.);see 

also Williams v. State, No. 12-01-00311-CR, 2003 Tex. App. LEXIS 3328, 2003 WL 

1883474, at *5 (Tex. App.--Tyler Apr. 16, 2003, no pet.) (mem. op., not design. for pub.) An 

enhanced 99-year sentence for sexual assault of a child not grossly disproportionate 

punishment because the crime was a "serious" one with the potential for causing "severe 

emotional harm" to the child.

86 Loomis v. State, 2007 Tex. App. LEXIS 82 (Tex. App. Amarillo Jan. 8, 2007, no pet.) (mem. 

op. not design. for pub.).

87 Baletka v. State, 2005 Tex. App. LEXIS 1355 at *6, 7 and 8 (Tex. App. Beaumont Jan. 26, 

2005, no pet.) (mem. op. not design. for pub.) The Court noted the defendant was the 

stepfather and the victim suffered psychological problems after two assaults within two days.
24

Aggravated Sexual Assault of a Child falls within the statutory range.88

Comparing the gravity of the offense against the severity of the sentence and 

further considering the record in this case, and specifically the testimony of 

Appellant’s own expert, Appellant’s forty-year sentence is not grossly 

disproportionate to the offense.89

4. Appellant’s Mental Illness

Appellant goes to great lengths in arguing his mental illness should be 

considered in determining whether his sentence is grossly disproportionate.

Appellant spends a significant portion of his brief arguing about the 

incarceration of the mentally ill. Appellant then posits the question whether 

mentally ill individuals held criminally responsible must be incarcerated for a 

much longer period than is necessary, although the individual is no longer a danger 

based on the current standards of medical care.90

 88 Flowers v. State, 2007 Tex. App. LEXIS 301 (Tex. App. Waco Jan. 17, 2007, no pet.) (mem. 

op. not design. for pub.).

 However, this is a false premise,

at least as applied to Appellant. As previously noted, Dr. Carter repeated that 

Appellant was at high risk to re-offend and even in thirty years would still be 

89 See Moore, 54 S.W. 3d at 542; see also Solem, 463 U.S. at 290-91, 103 S. Ct. at 3010; and 

McGruder, 954 F. 2d at 316. Because we have concluded that the imposed sentence is not 

grossly disproportionate to the charged offense, we need not address the second and third 

prongs of the Solem analysis. See TEX. R. APP. P. 47.1, 47.4; see also Solem, 463 U.S. at 291-

92, 103 S. Ct. at 3010; McGruder, 954 F. 2d at 316; Davis v. State, 119 S.W. 3d 359, 364 

(Tex. App.--Waco 2003, pet. ref'd); Valdez at *14.

90 See Appellant’s Brief page 13.
25

sexually disturbed and even deviant.91

“Q. Dr. Carter, in your analysis and observations of Mr. Oglesby, 

the options available to the Court in these circumstances after his plea 

of guilty to this offense to place him on probation or incarcerate him, 

given his mental health and mental health issues and need for services, 

do you believe that prison is the only place that can address those 

mental health needs?

The State asks this Court to consider the 

following exchange between Dr. Carter and Appellant’s trial counsel:

A. Unfortunately, so.”92

The State is mindful of the plight of the mentally ill behind bars. However, 

the State respectfully suggests the proper forum to address this issue is in the 

Legislature. At least concerning Appellant, given the available options and the risk 

he poses to children, he is where he needs to be. Further, Appellant does not cite 

any binding authority that punishment can be considered excessive in light of his 

mental illness. 93 Appellant concludes his Brief arguing Appellant requires 

treatment and not a forty-year sentence. 94 Yet, Appellant’s own expert 

acknowledged there was not a high probability for success.95

 91 (2 RR 34)

92 (2 RR 22) Dr. Carter went on to testify that if a group home were available, that would be a 

better option.

93 See Valdez v. State, 2014 Tex. App. Lexis 1375 at FN 2 (Tex. App. – Waco, February 6, 

2014, pet. ref’d.) (mem. op. not design. for pub.). The Waco Court went on to find the 

sentence given to Valdez was not shocking so as to be considered cruel and unusual given 

Valdez’ own expert, Dr. William Carter, testified that confinement in prison was probably 

necessary. The Waco Court also noted, at *11, Valdez did not provide any tangible evidence 

demonstrating that the current state of the Texas prison system is ill equipped to address 

Valdez’ mental health issues.

94 See Appellant’s Brief at page 24. 95 (2 RR 18).
26

5. Mental Illness and Proportionality

Appellant’s final argument compared a recent Supreme Court ruling in 

Miller v. Alabama that found children as constitutionally different from adults for 

purposes of sentencing, to individuals like Appellant, with some form of mental 

illness. 96 He argues the Supreme Court’s reasoning concerning the “three 

significant gaps” between children and adults is equally applicable to Appellant. 

Appellant casts Dr. Carter’s testimony in a light supportive of this argument. 97

The State disagrees with this characterization. Appellant’s level of 

culpability was not directly addressed. Dr. Carter did address Appellant’s lack of 

insight and border line intellectual function but did not correlate those symptoms 

with a particular level of culpability.98

Further, the key issue in Miller is the age of the offender. Miller discusses 

the “distinctive attributes of youth” and that “youth matters” as well as a “child's 

capacity for change.”

This does not mean, however, the Court did 

not consider Appellant’s personal culpability in assessing the sentence.

99

In any event, Appellant cites no authority extending Miller’s reasoning to 

Appellant, unlike a child, does not have the capacity to 

change. 

 96 See Appellant’s Brief pages 20 -23 quoting from Miller v. Alabama, 132 S. Ct. 2455, 2463 

(2012). 97 Id at pages 21, 22. 98 (2 RR 18, 23, 44) Dr. Carter testified Appellant’s intelligence scores placed him at 

borderline intellectual functioning, which means he’s not mentally retarded, but not normal.

99 See Miller v. Alabama, 132 S. Ct. 2455, 2466 (2012).
27

those with some form of mental illness. The Texas Court of Criminal Appeals has 

found the holding in Miller was very narrow and refused to extend it in the case of 

a juvenile who received a mandatory sentence that included the chance for

parole.100 The Court's holdings in Miller and Graham v. Florida were narrowly 

tailored to address mandatory sentences of life imprisonment without the 

possibility of parole for juveniles.101 Appellant is an adult offender convicted of 

Aggravated Sexual Assault of a Child, and Miller’s holding is limited to 

juveniles.102 Neither Miller nor Graham have any application here, except insofar

as Graham discusses “Incapacitation” as one of the four goals of penal sanctions 

which have been recognized as legitimate.103 Given Dr. Carter’s testimony, the 

State argues the only sure way to guarantee Appellant will not victimize another 

child is to keep him right where he is. 

 100 See Lewis v. State, 428 S.W. 3d 860, 863-64 (Tex. Crim. App. 2014) and Lewis v. State, 448 

S.W. 3d 138, 146 (Tex. App. – Houston [14th Dist.], pet. ref’d.).

101 Teinert v. State, 2014 Tex. App. LEXIS 1478 (Tex. App. Houston 1st Dist. Feb. 11, 2014, no 

pet.) (mem. op. not design. for pub.). See Miller, 132 S. Ct. at 2464-66, 2469; Graham v. 

Florida, 560 U.S. at 68-79, 130 S. Ct. at 2026-32.

102 Sloan v. State, 418 S.W. 3d 884, 892 (Tex. App. Houston 14th Dist. 2013) pet ref’d.; Stiner 

v. State, 2015 Tex. App. LEXIS 1119 at *7 (Tex. App. Houston 14th Dist., Feb. 5, 2015, pet. 

ref’d.) (mem. op. not design. for pub.). Refusing to extend the “spirit of Miller” in finding an 

automatic sentence of life without parole is not unconstitutional when assessed against an 

adult offender convicted of capital murder. 

103 See Graham at 2028. The four legitimate goals of penal sanctions are: retribution, 

deterrence, incapacitation, and rehabilitation." A sentence lacking any legitimate penological 

justification is, by its nature, disproportionate to the offense." Ibid. quoted by Meadoux v. 

State, 325 S.W. 3d 189, 195 (Tex. Crim. App. 2010).
28

D. Conclusion

Appellant’s sentence falls well within the statutory range of punishment for 

Aggravated Sexual Assault of a Child. The sentence is not disproportionate under 

either the Texas or the United States Constitutions.

Trial Courts have discretion in fashioning an appropriate sentence 

considering the crime, defendant, victim and society. Reviewing courts should 

grant substantial deference to the discretion of trial courts in imposing sentences.104

The State respectfully asks this Court to uphold both the conviction and the 

sentence.

The Texas Legislature has provided a severe punishment for those who would 

sexually prey on children for a reason. Such a punishment should not be viewed 

from the perspective of the one who preyed on the child, but from the perspective 

of the child, who has forever lost their innocence. 

 104 Eiland v. State, 993 S.W. 2d 215, 216 (Tex. App.-San Antonio 1999, no pet.).
29

PRAYER FOR RELIEF

Wherefore, Premises Considered, the State of Texas prays this Court, in all 

things, affirm the judgment of the Trial Court.

Respectfully Submitted,

/s/ Charles Karakashian, Jr.

Charles Karakashian, Jr. 

Special Prosecutor

52nd Judicial District

State Bar No. 11095700

P. O. Box 919

Gatesville, Texas 76528-0919

254-865-5911 x 2267

254-865-5147 - (fax)

ckarakashian@aol.com
30

Certificate of Service

By my signature affixed above, I, Charles Karakashian, Jr., certify that on 

July 22, 2015, a true and correct copy of the foregoing State’s Brief was delivered 

to Mr. Stan Schwieger, attorney of record for Appellant, by electronic mail through 

the required e-filing service at wacocrimatty@yahoo.com.

Certificate of Compliance

By my signature affixed above, I, Charles Karakashian, Jr., certify that the 

foregoing Brief complies with the requirements of Tex. R. App. P. and, according 

to Microsoft Word 2010 in which it was created, contains 7153 words, beginning 

at the words “Statement of Facts” in the heading of that section, and concluding 

with the final word in the Prayer in accordance with Rule 9.4(i) (1).