Christopher J. Birdow v. State
Opinion
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
PARTIES
CHRISTOPHER JERMAINE BIRDOW, APPELLANT
Mark W. Cargill Attorney for Defendant/Appellant 701 N. Elm Palestine, Texas 75801
Allison Mitchell District Attorney 500 N. Church Street Palestine, Texas 75801
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
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
CASE NO. 12-15-00187-CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
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
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
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.
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 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.
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