ACCEPTED 12-15-00187-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 10/30/2015 1:58:41 PM Pam Estes CLERK
FILED IN 12th COURT OF APPEALS CASE NO. 12-15-00187-CR TYLER, TEXAS 10/30/2015 1:58:41 PM IN THE TWELFTH COURT OF APPEALS PAM ESTES TYLER, TEXAS Clerk
CHRISTOPHER JERMAINE BIRDOW, Appellant
Vs.
THE STATE OF TEXAS, Appellee
On Appeal from the
349TH Judicial District Court, Anderson County, Texas
(Trial Court No. 30761)
Honorable BASCOM BENTLEY, III
BRIEF OF APPELLANT
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
1|Page PARTIES
Mark W. Cargill Attorney for Defendant/Appellant 701 N. Elm Palestine, Texas 75801
Allison Mitchell District Attorney 500 N. Church Street Palestine, Texas 75801
2|Page TABLE OF CONTENTS Page Table of Contents………………………………………………………………………………………….. 3
Index of Authorities……………………………………………………………………………………….. 4
Statement of the Case…………………………………………………………………………………... 5
Point of Error Number One……………………………………………………………………… 6
Statement of Facts……………………………………………………………………………………….. 6
Point of Error Number One Restated…………………………………………………………... 6
Summary of Argument (Point of Error Number One)………………………………... 6
Argument ……………………………………………….…………………………………………………….. 6, 7, 8
Prayer…………………………………………………………………………………………………………… 9
Certificate of Service…………………………………………………………………………………... 10
3|Page INDEX OF AUTHORITIES
CONSTITUTIONS
U.S. CONST. amend VIII…………………………………………………………………………….. 6 TEX. CONST. art. I sec. 13 ………………………………………………………………………. 6
STATUTES
Tex. Pen. Code Ann. Sec. 12.34………………………………………………………………. 8
CASES
Federal
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) 7
McGruder v. Puckett, 954 F. 2d 313 (5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992) 7
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) 7
State
Davis v. State, 905 S.W. 2d 664 (Tex. App – Texarkana 1995, pet. ref’d) 7
Dunn vs. State, 997 S.W. 2d 885 (Tex. App. – Waco 1999, pet. ref’d) 7
Hernandez v. State, 10 S. W. 3d 812 (Tex. App. – Beaumont 2000, pet. ref’d) 7
Hicks v. State, 15 S.W. 3d 626 (Tex. App. – Houston [14th dist. ] 2000, pet ref’d) 7
Jackson v. State, 989 S.W. 2d 842 (Tex. App. – Texarkana 1999, no pet.) 8
Lackey v. State, 881 S.W. 2d 418 (Tex. App. – Dallas 1994, pet ref’d) 7
Lilly v. State, 365 S.W.3d 321 (Ct of Crim Appeals, April 18, 2012) 8,9
Matthews v. State, 918 S.W. 2d 666 (Tex. App. – Beaumont 1996, pet ref’d) 7
Puga v. State, 916 S.W. 2d 547 (Tex. App. – San Antonio 1996, no pet.) 7
Simmons v. State, 994 S.W. 2d 11 (Tex. App. – Tyler 1996, pet. ref’d) 7
Sulivan v. State, 975 S.W.2d 755 (Tex. App. – Corpus Christi 1998, no pet.) 7
4|Page CASE NO. 12-15-00187-CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, CHRISTOPHER JERMAINE BIRDOW, the Appellant, and files
this his Brief of Appeal in the above-entitled and numbered cause.
STATEMENT OF THE CASE
On April 23, 2012, Defendant, CHRISTOPHER JERMAINE BIRDOW, plead on 2
counts. Count 1, engaging in organized criminal activity, received 10 years TDCJ,
probated with community supervision for 10 years and a $10,000.00 fine, of which
$9,000.00 was probated. As for Count 2, Manufacturing and Delivery of a
5|Page Controlled Substance PG 1 > = 4g <200g., he received deferred adjudication. State
of Texas filed a motion to revoke community supervision and a motion to proceed
with adjudication. A hearing was had on July 10, 2015, concerning the State’s
Motion to Revoke Community Supervision and adjudication.
ISSUE PRESENTED
POINT OF ERROR NUMBER ONE
The trial court errored in rendering judgment its verdict concerning count 2
and sentencing Appellant to 40 years incarceration because that sentence was
grossly disproportionate when considered in light of other sentences for the same
offense and in light of the facts and circumstances which constituted the offense.
STATEMENT OF FACTS
The court considered all testimony of the revocation hearing of July 10, 2015.
POINT OF ERROR NUMBER ONE RESTATED
The sentence is excessive and is grossly disproportionate to the crime
committed.
SUMMARY OF ARGUMENT
Each defendant is guaranteed under the constitution of punishment free
from cruel and unusual treatment. To sentence a defendant to a sentence that is
disproportionately high violates the prohibition against cruel and unusual
punishment.
6|Page ARGUMENT
Both the United States Constitution and the Texas Constitution prohibit cruel
and unusual punishment. US Const. amend. VIII; Tex. Const. art I sec. 13. Since there
are not any distinctions between the state and federal protections against cruel or
unusual punishment, an appeals court should address such claims together. See
Simmons v. State, 944 S.W. 2d 11, 14 (Tex. App. – Tyler 1996, pet. Ref’d) Davis v.
State, 905 S.W.2d 664, 665 (Tex. App. – Texarkana 1995, pet. ref’d).
It is possible for a sentence to fall within a permitted punishment range and
yet “run afoul of the Eighth Amendment prohibition on cruel and unusual
punishment. “Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d
637 (1983). The Supreme Court revised the question of disproportionate sentences
in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). In
discussing Harmelin, the Fifth Circuit has stated that “disproportionality survives:
Solem does not.” McGruder v. Puckett, 954 F 2d 313, 316 (5th Cir.), cert. denied 506
U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992). Under McGruder, a court must first
determine whether the sentence is “grossly disproportionate to the offense.”
McGruder, 954 F. 2d at 316. Once the court of Appeals finds the sentence grossly
disproportionate, the court then considers the remaining factors of the Solem test
and compares the sentence received to (1) sentences for similar crimes in the same
jurisdiction and (2) sentences for the same crime in other jurisdictions. Several
immediate Texas courts have analyzed proportionality claims in the manner
recommended by the Fifth Circuit in McGruder. See Hicks v. State, 15 S.W. 3d 626
(Tex. App. – Houston {14th Dist. } 2000, pet. ref’d); Hernandez v. State, 10 S.W. 3d
7|Page 812 (Tex. App. – Beaumont 2000, pet. ref’d); Dunn v. State, 997 S.W. 2d 885 (Tex.
App. – Waco 1999, pet. ref’d) Sullivan v. State, 975 S.W. 2d 755, 757 (Tex. App. –
Corpus Christi 1998, no pet.); Puga v. State, 916 S.W. 2d 547, 549-50 (Tex. App. -
San Antonio 1996, no pet.); Matthews v. State, 918 S.W.2d 666, 668-69 (Tex. App. –
Beaumont 1996, pet. ref’d) an Lackey v. State, 881 S.W. 2d 418, 420-421 (Tex. App. –
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ACCEPTED 12-15-00187-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 10/30/2015 1:58:41 PM Pam Estes CLERK
FILED IN 12th COURT OF APPEALS CASE NO. 12-15-00187-CR TYLER, TEXAS 10/30/2015 1:58:41 PM IN THE TWELFTH COURT OF APPEALS PAM ESTES TYLER, TEXAS Clerk
CHRISTOPHER JERMAINE BIRDOW, Appellant
Vs.
THE STATE OF TEXAS, Appellee
On Appeal from the
349TH Judicial District Court, Anderson County, Texas
(Trial Court No. 30761)
Honorable BASCOM BENTLEY, III
BRIEF OF APPELLANT
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
1|Page PARTIES
Mark W. Cargill Attorney for Defendant/Appellant 701 N. Elm Palestine, Texas 75801
Allison Mitchell District Attorney 500 N. Church Street Palestine, Texas 75801
2|Page TABLE OF CONTENTS Page Table of Contents………………………………………………………………………………………….. 3
Index of Authorities……………………………………………………………………………………….. 4
Statement of the Case…………………………………………………………………………………... 5
Point of Error Number One……………………………………………………………………… 6
Statement of Facts……………………………………………………………………………………….. 6
Point of Error Number One Restated…………………………………………………………... 6
Summary of Argument (Point of Error Number One)………………………………... 6
Argument ……………………………………………….…………………………………………………….. 6, 7, 8
Prayer…………………………………………………………………………………………………………… 9
Certificate of Service…………………………………………………………………………………... 10
3|Page INDEX OF AUTHORITIES
CONSTITUTIONS
U.S. CONST. amend VIII…………………………………………………………………………….. 6 TEX. CONST. art. I sec. 13 ………………………………………………………………………. 6
STATUTES
Tex. Pen. Code Ann. Sec. 12.34………………………………………………………………. 8
CASES
Federal
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) 7
McGruder v. Puckett, 954 F. 2d 313 (5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992) 7
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) 7
State
Davis v. State, 905 S.W. 2d 664 (Tex. App – Texarkana 1995, pet. ref’d) 7
Dunn vs. State, 997 S.W. 2d 885 (Tex. App. – Waco 1999, pet. ref’d) 7
Hernandez v. State, 10 S. W. 3d 812 (Tex. App. – Beaumont 2000, pet. ref’d) 7
Hicks v. State, 15 S.W. 3d 626 (Tex. App. – Houston [14th dist. ] 2000, pet ref’d) 7
Jackson v. State, 989 S.W. 2d 842 (Tex. App. – Texarkana 1999, no pet.) 8
Lackey v. State, 881 S.W. 2d 418 (Tex. App. – Dallas 1994, pet ref’d) 7
Lilly v. State, 365 S.W.3d 321 (Ct of Crim Appeals, April 18, 2012) 8,9
Matthews v. State, 918 S.W. 2d 666 (Tex. App. – Beaumont 1996, pet ref’d) 7
Puga v. State, 916 S.W. 2d 547 (Tex. App. – San Antonio 1996, no pet.) 7
Simmons v. State, 994 S.W. 2d 11 (Tex. App. – Tyler 1996, pet. ref’d) 7
Sulivan v. State, 975 S.W.2d 755 (Tex. App. – Corpus Christi 1998, no pet.) 7
4|Page CASE NO. 12-15-00187-CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, CHRISTOPHER JERMAINE BIRDOW, the Appellant, and files
this his Brief of Appeal in the above-entitled and numbered cause.
STATEMENT OF THE CASE
On April 23, 2012, Defendant, CHRISTOPHER JERMAINE BIRDOW, plead on 2
counts. Count 1, engaging in organized criminal activity, received 10 years TDCJ,
probated with community supervision for 10 years and a $10,000.00 fine, of which
$9,000.00 was probated. As for Count 2, Manufacturing and Delivery of a
5|Page Controlled Substance PG 1 > = 4g <200g., he received deferred adjudication. State
of Texas filed a motion to revoke community supervision and a motion to proceed
with adjudication. A hearing was had on July 10, 2015, concerning the State’s
Motion to Revoke Community Supervision and adjudication.
ISSUE PRESENTED
POINT OF ERROR NUMBER ONE
The trial court errored in rendering judgment its verdict concerning count 2
and sentencing Appellant to 40 years incarceration because that sentence was
grossly disproportionate when considered in light of other sentences for the same
offense and in light of the facts and circumstances which constituted the offense.
STATEMENT OF FACTS
The court considered all testimony of the revocation hearing of July 10, 2015.
POINT OF ERROR NUMBER ONE RESTATED
The sentence is excessive and is grossly disproportionate to the crime
committed.
SUMMARY OF ARGUMENT
Each defendant is guaranteed under the constitution of punishment free
from cruel and unusual treatment. To sentence a defendant to a sentence that is
disproportionately high violates the prohibition against cruel and unusual
punishment.
6|Page ARGUMENT
Both the United States Constitution and the Texas Constitution prohibit cruel
and unusual punishment. US Const. amend. VIII; Tex. Const. art I sec. 13. Since there
are not any distinctions between the state and federal protections against cruel or
unusual punishment, an appeals court should address such claims together. See
Simmons v. State, 944 S.W. 2d 11, 14 (Tex. App. – Tyler 1996, pet. Ref’d) Davis v.
State, 905 S.W.2d 664, 665 (Tex. App. – Texarkana 1995, pet. ref’d).
It is possible for a sentence to fall within a permitted punishment range and
yet “run afoul of the Eighth Amendment prohibition on cruel and unusual
punishment. “Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d
637 (1983). The Supreme Court revised the question of disproportionate sentences
in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). In
discussing Harmelin, the Fifth Circuit has stated that “disproportionality survives:
Solem does not.” McGruder v. Puckett, 954 F 2d 313, 316 (5th Cir.), cert. denied 506
U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992). Under McGruder, a court must first
determine whether the sentence is “grossly disproportionate to the offense.”
McGruder, 954 F. 2d at 316. Once the court of Appeals finds the sentence grossly
disproportionate, the court then considers the remaining factors of the Solem test
and compares the sentence received to (1) sentences for similar crimes in the same
jurisdiction and (2) sentences for the same crime in other jurisdictions. Several
immediate Texas courts have analyzed proportionality claims in the manner
recommended by the Fifth Circuit in McGruder. See Hicks v. State, 15 S.W. 3d 626
(Tex. App. – Houston {14th Dist. } 2000, pet. ref’d); Hernandez v. State, 10 S.W. 3d
7|Page 812 (Tex. App. – Beaumont 2000, pet. ref’d); Dunn v. State, 997 S.W. 2d 885 (Tex.
App. – Waco 1999, pet. ref’d) Sullivan v. State, 975 S.W. 2d 755, 757 (Tex. App. –
Corpus Christi 1998, no pet.); Puga v. State, 916 S.W. 2d 547, 549-50 (Tex. App. -
San Antonio 1996, no pet.); Matthews v. State, 918 S.W.2d 666, 668-69 (Tex. App. –
Beaumont 1996, pet. ref’d) an Lackey v. State, 881 S.W. 2d 418, 420-421 (Tex. App. –
Dallas 1994, pet ref’d). The Eighth Amendment proscribes grossly disproportionate
sentences, even sentences that fall within the statutory range of punishment.
Jackson v. State, 989 S. W. 2d 842, 845-46 (Tex. App. – Texarkana 1999, no pet).
Appellant was on community supervision for the felony offense of
manufacturing and delivery of controlled substance PG 1>= 4 g<200 g.
Appellant’s community supervision was revoked and sentenced for the
offense of manufacturing and delivery of controlled substance PG 1>= 4 g<200 g the
sentence was grossly disproportionate to the crime. An individual adjudged guilty
of a felony of this degree shall be punished by imprisonment in the institutional
division for any term of not more than 99 years or less than 5 years and in addition
to the imprisonment, may be assessed a fine not to exceed $10,000.00. Tex. Penal
Code.
The sentence of 40 years incarceration is grossly disproportionate.
In terms of other manufacturing and delivery of controlled substance PG 1>=
4 g<200 g cases, the facts which made up the gist of the manufacturing and delivery
of controlled substance PG 1>= 4 g<200 g now before this Court, when considered in
conjunction with other testimony, and the fact he originally received deferred
8|Page adjudication, this Court must conclude that the punishment assessed, the sentence
of 40 years confinement, is grossly disproportionate to the offense committed.
Accordingly, this Court must proceed to the next two steps in the McGruder
analysis: (1) sentences for similar crimes in the same jurisdiction and (2) sentences
for the same crime in other jurisdictions. Appellant is guilty of the offense charged,
but his punishment is excessive. Punishment for the worst possible manufacturing
and delivery of controlled substance PG 1>= 4 g<200 g cannot exceed a 99 years or
life sentence. Appellant was sentenced to 40 years. It is clear that other much more
serious manufacturing and delivery of controlled substance PG 1>= 4 g<200 g
convictions resulted in significantly less harsh sentences than Appellant received.
Simply stated, the punishment assessed against Appellant, while legally
within the range of punishment available to the Court, exceed what was right and
fair. Forty years confinement in prison is not proportionate for the offense of
manufacturing and delivering of controlled substance PG 1>=4g<200g in this
situation and under these facts and circumstances. Accordingly, the sentence must
not stand. Appellant is entitled to a new punishment hearing.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable
Court sustain the point of error raised hereinabove, and vacate the commitment to
the Texas Department of Corrections Institutional Division remand the case for a
new sentencing hearing.
9|Page Respectfully submitted,
CARGILL & ASSOCIATES
BY: /s/ Mark W. Cargill Mark W. Cargill SBN: 00787201 701 N. Elm Palestine, Texas 75801 Telephone: 903/729-8011 Facsimile: 903/729-5112
Attorney for Appellant
CERTIFICATE OF SERVICE
This is the certify that on October 30, 2015, a true and correct copy of the above and foregoing document was served on the District Attorney’s Office, Anderson County, and all other interested parties, by hand delivery, mail, and/or facsimile and regular mail.
/s/ Mark W. Cargill Mark W. Cargill
Word Count
On this 30th day of October, 2015, I, Mark W. Cargill, hereby certifies that this brief has a word count of 1607.
10 | P a g e