Vollie Earl Henry v. the State of Texas

NO. 12-21-00218-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

VOLLIE EARL HENRY, § APPEAL FROM THE 159TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION
Vollie Earl Henry appeals his two convictions for aggravated sexual assault of a child. In
three issues, Appellant argues that his convictions and sentences and the trial court’s cumulation
order violate his right against double jeopardy and his sentences are grossly disproportionate to
the offenses and constitute cruel and unusual punishment. We modify and affirm as modified.

BACKGROUND
Appellant was charged by indictment with two counts of aggravated sexual assault of a
child—one by penetration of the child’s mouth and one by penetration of her sexual organ. He
pleaded “not guilty” to the charges, and the matter proceeded to a jury trial.
At trial, the evidence showed that Appellant barricaded his six or seven-year-old niece in
her bedroom while her mother was participating in church choir practice in another room and
threatened to kill her and her family if she told anyone what he was about to do. He forced his
penis into her mouth and then her vagina while holding a pillow over her face as she cried and
called out for help.
Ultimately, the jury found Appellant “guilty” of the charges and assessed his punishment
at imprisonment for life and a $10,000.00 fine in each case. The trial court ordered that the
sentences be served consecutively. This appeal followed.
DOUBLE JEOPARDY
Appellant’s first issue is whether his convictions and sentences violate his state and
federal rights against double jeopardy. His second issue is whether the trial court’s cumulation
order violates those rights. He addresses both issues in a single argument.
Appellant contends that his convictions, sentences, and sentence cumulation constitute
multiple punishments for the same offense in violation of the Fifth Amendment and Article I
Section 14 of the Texas Constitution. He contends this is so because the record shows the acts
were perpetrated in a single criminal episode or transaction against the same victim on the same
day in violation of the same penal provision. Appellant acknowledges that his position is
contrary to current case law but argues nonetheless that we should apply the long-abandoned
carving doctrine or “same transaction test” here. We decline to do so.
The Double Jeopardy Clause of the United States Constitution provides that no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST.
amend. V. Similarly, the Texas Constitution provides that “[n]o person, for the same offense,
shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the
same offense, after a verdict of not guilty in a court of competent jurisdiction.” TEX. CONST. art.
1, § 14. The two clauses provide substantially identical protections. Ex parte Mitchell, 977
S.W.2d 575, 580 (Tex. Crim. App. 1997). They prohibit (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3)
multiple punishments for the same offense. Lopez v. State, 108 S.W.3d 293, 295-96 (Tex. Crim.
App. 2003).
A double jeopardy claim generally must be raised in the trial court to preserve error for
appellate review. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000). However, such
a claim may be raised for the first time on appeal when the undisputed facts show a double
jeopardy violation is clearly apparent on the face of the record and enforcement of the usual rules
of procedural default serves no legitimate state interest. Id. at 643. Here, Appellant was charged
in the same indictment with two counts, and he claims that the conduct alleged in the counts
constitutes the same offense for double jeopardy purposes. Because we can determine this
question from the face of the record, and enforcement of the usual procedural default rules would
serve no legitimate state interest, we will address the issue. See Rangel v. State, 179 S.W.3d 64,
70-71 (Tex. App.—San Antonio 2005, pet. ref’d) (addressing unpreserved double jeopardy

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question of whether one count was lesser-included of another because error would be apparent
on face of record and enforcement of default rules would serve no legitimate state purpose).
Section 22.021 of the Texas Penal Code in pertinent part provides the following:

(a) A person commits an offense:

(1) if the person:

....

(B) regardless of whether the person knows the age of the child at the time
of the offense, intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of a child
by any means;

(ii) causes the penetration of the mouth of a child by the sexual
organ of the actor;

(iii) causes the sexual organ of a child to contact or penetrate the
mouth, anus, or sexual organ of another person, including
the actor;

(iv) causes the anus of a child to contact the mouth, anus, or
sexual organ of another person, including the actor; or

(v) causes the mouth of a child to contact the anus or sexual
organ of another person, including the actor; and

(2) if:

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

TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (a)(2)(B) (West 2019). Section 22.021 is a conduct-
oriented statute that uses the conjunctive “or” to distinguish and separate different conduct. Vick
v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999). Its various sections specifically define
sexual conduct in ways that usually require different and distinct acts to commit. Id. These
considerations led the court of criminal appeals to conclude the legislature intended that each
separately described conduct constitutes a separate statutory offense. Id.
In this case, different conduct was charged in separate counts of the indictment as
separate offenses. Appellant was charged with penetration of the child’s sexual organ under
subsection (i) and penetration of the child’s mouth under subsection (ii). The penetration of the
child’s sexual organ clearly required a separate and distinct act from the penetration of her mouth

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and constitutes a separate and distinct statutory offense, despite the fact both are violations of a
single statute. See id. Our determination that the two counts allege violations of separate and
distinct statutory aggravated sexual assault provisions and those alleged offenses involved
separate and distinct acts ends the double jeopardy inquiry. See id.
Nevertheless, Appellant urges us to apply the carving doctrine, specifically the “same
transaction test,” and hold that the two counts constitute the same offense for double jeopardy
purposes. The court of criminal appeals abandoned the carving doctrine, including the “same
transaction” analysis, in Ex parte McWilliams, 634 S.W.2d 815, 822-23 (Tex. Crim. App. 1980).
As an intermediate appellate court, we lack the authority to overrule an opinion of the court of
criminal appeals. State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006), aff’d sub
nom., State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007). Because Appellant’s
convictions, sentences, and cumulation of sentences do not violate his double jeopardy rights
under current mandatory authority, we overrule his first and second issues.

CRUEL AND UNUSUAL PUNISHMENT
In Appellant’s third issue, he argues that his punishment is grossly disproportionate and
constitutes cruel and unusual punishment in violation of the United States and Texas
Constitutions. He contends that the assessment of two consecutive life sentences is the
functional equivalent of life without parole and we should extend the United States Supreme
Court’s holding in Miller v. Alabama1—that the Eighth Amendment prohibits automatically
sentencing a juvenile defendant to life without parole—to prohibit the sentencing of a defendant
to consecutive life sentences when the offenses arose from the same transaction. We decline to
do so.
First, before a complaint may be presented for appellate review, the record must show
that it was made to the trial court by a timely request, objection, or motion. TEX. R. APP. P.
33.1(a)(1). An appellant fails to preserve error by failing to object when he has the opportunity.
Burt v. State, 396 S.W.3d 574, 577-78 (Tex. Crim. App. 2013). A sentencing issue may be
preserved by objecting at the punishment hearing, or when the sentence is pronounced. Id. at
577. An appellant may raise a sentencing issue for the first time in a motion for new trial only if
he did not have an opportunity to object during the punishment hearing. Id. at 577 n.4.

1
567 U.S. 460, 465, 132 S. Ct. 2455, 2460, 183 L. Ed. 2d 407 (2012).

4
In this case, Appellant did not object at the punishment hearing when his sentences and
their cumulation were pronounced. Because Appellant had the opportunity to object to his
sentences and their cumulation at the punishment hearing and failed to do so, we conclude that
he failed to preserve this issue for our review. See TEX. R. APP. P. 33.1(a)(1); Burt, 396 S.W.3d
at 577-78.
Furthermore, even if Appellant preserved his issue, we could not grant him relief because
his sentence does not constitute cruel and unusual punishment. The United States Constitution
provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishment inflicted.” U.S. CONST. amend. VIII. This provision was made applicable to
the states by the Due Process Clause of the Fourteenth Amendment. Meadoux v. State, 325
S.W.3d 189, 193 (Tex. Crim App. 2010). Similarly, the Texas Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual
punishment inflicted.” TEX. CONST. art. 1, § 13. The difference between the Eighth
Amendment’s “cruel and unusual” phrasing and the Texas Constitution’s “cruel or unusual”
phrasing is insignificant. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).
The legislature is vested with the power to define crimes and prescribe penalties. See
Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref’d); see also Simmons
v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d). Courts have repeatedly held
that punishment falling within the limits prescribed by a valid statute is not excessive, cruel, or
unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664.
In Count 1, Appellant was convicted of aggravated sexual assault of a child by
penetration of the sexual organ, a first-degree felony, enhanced by two previous consecutive
felony convictions, the punishment range for which is imprisonment for a term of life, or not
more than ninety-nine years or less than twenty-five years. See TEX. PENAL CODE ANN.
§§ 22.021(a)(1)(B)(i), (a)(2)(B), (e), 12.42(d) (West 2019). Thus, the life sentence imposed by
the jury falls within the range set forth by the legislature and is not prohibited as cruel, unusual,
or excessive per se. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905
S.W.2d at 664. However, the $10,000.00 fine is not authorized under Section 12.42(d). See
Dolph v. State, 440 S.W.3d 898, 908 (Tex. App.—Texarkana 2013, pet. ref’d); TEX. PENAL
CODE ANN. § 12.42(d) (containing no provision authorizing imposition of fine); see also Ex

5
parte Youngblood, 698 S.W.2d 671, 672 (Tex. Crim. App. 1985) (judgment reformed to delete
fine unauthorized under Section 12.42(c)). Therefore, we reform the verdict in Count 1 to delete
the improper fine. See Dolph, 440 S.W.3d at 908; Ex parte Youngblood, 698 S.W.2d at 672.
In Count 2, Appellant was convicted of aggravated sexual assault of a child by
penetration of the mouth, a first-degree felony, enhanced by two previous consecutive felony
convictions, the punishment range for which is imprisonment for a term of life, or not more than
ninety-nine years or less than twenty-five years. See TEX. PENAL CODE ANN.
§§ 22.021(a)(1)(B)(ii), (a)(2)(B), (e), 12.42(d). Thus, the life sentence imposed by the jury falls
within the range set forth by the legislature and is not prohibited as cruel, unusual, or excessive
per se. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.
However, as before, the $10,000.00 fine is not authorized under Section 12.42(d). See Dolph,
440 S.W.3d at 908; TEX. PENAL CODE ANN. § 12.42(d); see also Ex parte Youngblood, 698
S.W.2d at 672. Therefore, we reform the verdict in Count 2 to delete the improper fine. See
Dolph, 440 S.W.3d at 908; Ex parte Youngblood, 698 S.W.2d at 672.
After imposing the sentences assessed by the jury, the trial court ordered that Count 2 run
consecutively to Count 1, “pursuant to the authority that is granted to [him] as judge because of
the nature of the case and [his] observations of the entirety of this case from the beginning until
now.” Section 3.03 of the penal code provides the following:

If the accused is found guilty of more than one offense arising out of the same criminal
episode, the sentences may run concurrently or consecutively if each sentence is for a
conviction of . . . an offense under Section . . . 22.021 . . . committed against a victim younger
than 17 years of age at the time of the commission of the offense regardless of whether the
accused is convicted of violations of the same section more than once.

TEX. PENAL CODE ANN. § 3.03(b)(2)(A) (West Supp. 2021). Thus, the court’s order that
Appellant’s convictions run consecutively comports with the requirements set forth by the
legislature and is not prohibited as cruel, unusual, or excessive per se. See Harris, 656 S.W.2d at
486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.
Neither can we conclude that Appellant’s sentences or their cumulation is prohibited by
the Eighth Amendment when we consider the factors originally set forth in Solem v. Helm, 463
U.S. 277, 103 S. Ct. 3001 77 L. Ed. 2d 637 (1983). Under Solem, the proportionality of a
sentence is evaluated by considering (1) the gravity of the offense and the harshness of the

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penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the
sentences imposed for commission of the same crime in other jurisdictions. Id., 463 U.S. at 292,
103 S. Ct. at 3011. The application of the Solem test has been modified by Texas courts and the
Fifth Circuit Court of Appeals in light of the Supreme Court’s decision in Harmelin v.
Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a threshold
determination that the sentence is grossly disproportionate to the crime before addressing the
remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992), cert.
denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989
S.W.2d 842, 845-46 (Tex. App.—Texarkana 1999, no pet.).
We are guided by the holding in Rummel v. Estelle in making the threshold
determination of whether Appellant’s sentence is grossly disproportionate to his offense. 445
U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered
the proportionality claim of an appellant who received a mandatory life sentence under a prior
version of the Texas habitual offender statute for a conviction of obtaining $120.75 by false
pretenses. See id., 445 U.S. at 266, 100 S. Ct. at 1135. In that case, the appellant received a life
sentence because he had two prior felony convictions—one for fraudulent use of a credit card to
obtain $80.00 worth of goods or services and the other for passing a forged check in the amount
of $28.36. Id., 445 U.S. at 265-66, 100 S. Ct. at 1134-35. After recognizing the legislative
prerogative to classify offenses as felonies and, further, considering the purpose of the habitual
offender statute, the court determined that the appellant’s mandatory life sentence did not
constitute cruel and unusual punishment. Id., 445 U.S. at 284-85, 100 S. Ct. at 1144-45.
In this case, the offenses committed by Appellant—aggravated sexual assault of a child
by penetration of the sexual organ and aggravated sexual assault of a child by penetration of the
mouth—are far more serious than the combination of offenses committed by the appellant in
Rummel, while Appellant’s sentences are the same as the one upheld by the Supreme Court in
Rummel. Thus, it is reasonable to conclude that if the sentence in Rummel is not
constitutionally disproportionate, then neither are Appellant’s sentences in this case.
Nor does the cumulation of the sentences render Appellant’s punishment constitutionally
disproportionate. See Arredondo v. State, 406 S.W.3d 300, 306 (Tex. App.—San Antonio 2013,
pet. ref’d). In Arredondo, a juvenile appellant argued that his consecutive life sentences for
homicide and nonhomicide offenses, assessed in the trial court’s discretion, amounted to a

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sentence of life without parole and violated the prohibition against cruel and unusual
punishment. Id. at 304-05. The court of appeals analyzed Miller and noted that the Supreme
Court there held a mandatory, not discretionary, sentence of life without parole for a juvenile
violates the Eighth Amendment. Id. at 305-06 (citing Miller, 132 S. Ct. at 2464, 2467-69). The
court of appeals concluded that “even assuming for purposes of argument that two consecutive
life sentences amount to a sentence of ‘life without parole,’ . . . nothing prevents such a
discretionary sentence when, as here, appellant has been found guilty of both a homicide offense
and nonhomicide offenses in a particularly heinous crime.” Id. at 306.
We similarly conclude that the discretionary cumulation of discretionary life sentences
for an adult convicted of two counts of aggravated sexual assault of a child is not constitutionally
disproportionate. See id. Appellant gives no reason why his offenses’ occurrence within a single
transaction renders his discretionary consecutive life sentences unconstitutional, and we know of
none. Because neither Appellant’s sentences nor their cumulation is constitutionally
disproportionate to his offenses, Solem’s threshold test has not been satisfied, and we need not
apply the remaining elements of the Solem test. See McGruder, 954 F.2d at 316; see also
Jackson, 989 S.W.2d at 845-46. Accordingly, we overrule Appellant’s third issue.

DISPOSITION
Having overruled Appellant’s first, second, and third issues and concluded that the trial
court’s judgments contain improper fines, we modify the judgments to delete the fines and
affirm the judgments as modified.
GREG NEELEY
Justice

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

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 12, 2022

NO. 12-21-00218-CR

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

Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2019-0201)

THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgments of the
court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the
judgments of the court below be modified to delete the fines; in all other respects the judgments
of the trial court are affirmed; and that this decision be certified to the court below for
observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.