Gabier Gonzales AKA Harvey Gonzales AKA Javier Gonzales v. State

• Court: Court of Appeals of Texas
• Decided: July 28, 2015
• Docket: 13-15-00156-CR
• Status: Published

Opinion

ACCEPTED 13-15-00156-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/28/2015 6:57:14 PM CECILE FOY GSANGER CLERK

NO. 13-15-00156-CR

FILED IN COURT OF APPEALS13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THIRTEENTH DISTRICT OF TEXAS 7/28/2015 6:57:14 PM CECILE FOY GSANGER Clerk STATE OF TEXAS v. GABIER GONZALES

FROM THE 36TH DISTRICT COURT, SAN PATRICIO COUNTY, TEXAS CAUSE NO. S-11-3069-CR, THE HONORABLE STARR BAUER PRESIDING

APPELLEE APPELLANT John M. Lamerson Jacqueline Rae Lamerson Attorney at Law Attorney at Law State Bar No. 24076495 State Bar No. 24074923 P.O. Box 241 P.O. Box 241 Corpus Christi, TX 78403 Corpus Christi, TX 78403 Tel: (361) 816-9969 Tel: (361) 816-9969 Fax: (866) 935-5634 Fax: (866) 935-5634

ORAL ARGUMENT REQUESTED APPELLANT’S BRIEF

NO. 13-15-00156-CR IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

STATE OF TEXAS v. GABIER GONZALES

FROM THE 36TH DISTRICT COURT, SAN PATRICIO COUNTY, TEXAS CAUSE NO. S-11-3069-CR, THE HONORABLE STARR BAUER PRESIDING

TO THE HONORABLE COURT OF APPEALS:

NOW COMES, Defendant, Appellant herein, files and submit his Brief

in this appeal from a revocation of probation and a judgment of guilty, and

would respectfully show as follows: IDENTITY OF PARTIES AND COUNSEL

Appellant: GABIER GONZALES

Counsel for Appellants at trial: Mr. Mark Eggert 707 E San Patricio Ave Mathis, TX 78368-2430 SBOT No. 06482300

Counsel for Appellants on Appeal: John M. Lamerson Jacqueline Rae Lamerson The Lamerson Law Firm Attorney at Law State Bar No. 24076495 State Bar No. 24074923 P.O. Box 241 P.O. Box 241 Corpus Christi, TX 78403 Corpus Christi, TX 78403 SBOT No. 24076495 SBOT No. 24074923

Counsel for State at Trial: Mr. Frank Errico San Patricio County District Attorney’s Office 400 West Sinton Street, Room 233 P.O. Box 1393 Sinton, TX 78387 SBOT No. 06648950

State Appellate Counsel: Mr. Frank Errico San Patricio County District Attorney’s Office 400 West Sinton Street, Room 233 P.O. Box 1393 Sinton, TX 78387 SBOT No. 06648950 TABLE OF CONTENTS

Identity of Parties and Counsel …………………………. 3

Table of Contents ………………………….…………… 4

Index of Authorities ………………………….…………… 5

Statement of the Case ………………………….…………… 6

Issues Presented ………………………….…………… 6

A. The sentence imposed by the trial court was disproportionate to the seriousness of the alleged offense, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

Statement of Facts ………………………….…………… 7

Summary of the Argument ................................................ 8

Argument ......................................................................... 9

Issue 1: Eighth and Fourteenth Amendments................... 9

Prayer .......................................................................... 13

Certificate of Service ....................................................... 14

Certificate of Compliance .................................................... 15 INDEX OF AUTHORITIES

Texas Cases:

Noland v. State, 264 S.W.3d 144, 151 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d) ………………………………………………………………….. 9

Federal Cases:

Baze v. Rees, 553 U.S. 35 (2008) …………....…………………………. 9

Coker v. Georgia, 433 U.S. 584 (1977) ………..………………………. 10

Furman v. Georgia, 408 U.S. 238 (1972) …………………………. 10

Gregg v. Georgia, 428 U.S. 153 (1976) ……………………..…………. 10

Robinson v. California, 370 U.S. 660 (1962) …………………………. 9

Trop v. Dulles, 356 U. S. 86 (1958) ……………………..…………. 10

Weems v. United States, 217 U. S. 349 (1910) ….………………. 10

United States Constitution:

U.S. CONST. amend. VIII ……..…………....…………………………. 9

U.S. CONST. amend. XIV ……..…………....…………………………. 9

Secondary Sources:

Kirchmeier, Jeffrey L., “Let's Make a Deal: Waiving the Eighth Amendment by Selecting a Cruel and Unusual Punishment,” Connecticut Law Review, Vol. 32, No. 2, pp. 615-52, Winter 2000 ……………………..…………. 11 STATEMENT OF THE CASE

On March 20, 2015, against the recommendation of the probation

department, the Defendant, Gabier Gonzales, was revoked from his

probation and sentenced to fifteen (15) years in the Institutional Division of

the Texas Department of Criminal Justice. This revocation and sentence

was a violation of the Defendant’s right against cruel and unusual

punishment. This Eighth Amendment protection cannot be waived by the

Defendant.

ISSUES PRESENTED

Issue 1: The sentence imposed by the trial court was disproportionate to the seriousness of the alleged offense, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. STATEMENT OF FACTS

On March 20, 2015, a Motion to Revoke the probation of Defendant

Gabier Gonzales was heard before Judge Janna Whatley in the 36th

Judicial District Court, San Patricio County, Texas. The State presented as

evidence to the Court the Stipulation and Waiver of the Pre-Sentence

Report, the Stipulation and Judicial Confession, and the Pre-Sentence

Investigation Report. Testimony from the Defendant was taken by the

State and the Defense, and it was made part of the record that the San

Patricio Probation Department recommended that the Defendant be

continued on probation. The Judge revoked the Defendant from his

probation and sentenced him to fifteen (15) years in the Institutional

Division of the Texas Department of Criminal Justice. SUMMARY OF ARGUMENT

The punishment assessed by the trial Court was excessive in relation

to the crime committed. The punishment was excessive and

unconstitutional as it (1) makes no measurable contribution to acceptable

goals of punishment, and hence is nothing more than the purposeless and

needless imposition of pain and suffering; and/or (2) is grossly out of

proportion to the severity of the crime. The Eighth Amendment protections

guaranteed to the Defendant cannot be waived because such waivers do

not benefit the individual or society. ARGUMENT

Issue I: The sentence imposed by the trial court was disproportionate to the seriousness of the alleged offense, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

The Eighth Amendment provides that “[e]xcessive bail shall not be

required, nor excessive fine imposed, nor cruel and unusual punishment

inflicted.” See U.S. CONST. amend. VIII, XIV. The Eighth Amendment

applies to punishments imposed by state courts through the Due Process

Clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV. The

protection against cruel and unusual punishment has been incorporated by

the United States Supreme Court against the states. Robinson v.

California, 370 U.S. 660 (1962); Baze v. Rees, 553 U.S. 35 (2008).

In this present case, probation recommended that the Defendant be

reinstated on probation instead of being revoked. RRv2 8:24 - 9:3. The

reasoning behind their recommendation was set forth in the Pre-Sentence

Investigation Report introduced into evidence as State’s Exhibit A. No new

offenses were the subject of the motion to revoke, and the alleged

violations were technical in nature.

The difference between the course of action recommended by the

probation department and the sentence imposed by the court, fifteen years incarceration in the institutional division of the Texas Department of

Corrections, is so severe, particularly given the lack of severity of the

violations, that it can only be termed as cruel and unusual, and a violation

of the Eighth and Fourteenth Amendments. The United States Supreme

Court has long held that a disproportionality between the sentence and the

offense is a violation of the cruel and unusual provision of the Eighth

Amendment. Coker v. Georgia, 433 U.S. 584 (1977). As the Coker Court

held:

In sustaining the imposition of the death penalty in Gregg, however, the Court firmly embraced the holdings and dicta from prior cases, Furman v. Georgia, supra; Robinson v. California, 370 U. S. 660 (1962); Trop v. Dulles, 356 U. S. 86 (1958); and Weems v. United States, 217 U. S. 349 (1910), to the effect that the Eighth Amendment bars not only those punishments that are "barbaric," but also those that are "excessive" in relation to the crime committed. Under Gregg, a punishment is "excessive" and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment, and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent. To this end, attention must be given to the public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted In this present case, the Defendant’s confinement to the Texas

Department of Corrections, given the fact that there had been no finding

that the Defendant was any danger to society, makes no measurable

contribution to acceptable goals of punishment. And in the alternative, the

Defendant’s revocation based solely on technical violations of his

probation, against the recommendation of the probation department, is

grossly out of proportion to the severity of the crime.

It is true that Texas courts have held heretofore that a party must

present a timely objection to the trial court, state the specific grounds for

the objection, and obtain a ruling. “The failure to specifically object to an

alleged disproportionate or cruel and unusual sentence in the trial court or

in a post-trial motion waives any error for our review.” Noland v. State, 264

S.W.3d 144, 151 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d).

However, recent analysis of the Eighth Amendment, specifically the

prohibition against cruel and unusual punishment, has led constitutional

scholars to the proposition that the prohibition against cruel and unusual

punishment cannot be waived by an individual.

In his article “Let's Make a Deal: Waiving the Eighth Amendment by

Selecting a Cruel and Unusual Punishment,” author Jeffrey L. Kirchmeier

states that the ban on cruel and unusual punishments is a right that differs significantly from other constitutional criminal rights because it serves a

broad societal purpose, and that the waiver of this right differs from the

waiver of other criminal rights because such waivers do not benefit the

individual or society. See Kirchmeier, Jeffrey L., “Let's Make a Deal:

Waiving the Eighth Amendment by Selecting a Cruel and Unusual

Punishment,” Connecticut Law Review, Vol. 32, No. 2, pp. 615-52, Winter

2000. The analysis within the article makes sense from a practical and

legal point of view. Could the Texas legislature assign punishment for a

Class C misdemeanor at life, a state jail felony at castration, if the

defendant voluntarily waives it as part of an ill-advised plea agreement?

The proposition that a person can choose to be treated cruelly and

unusually by the State is so counter to the interests that the Eighth

Amendment purports to protect that a waiver is legally and morally

impossible. PRAYER

The Defendant respectfully requests that this Honorable Court grant

his request to find that the trial court abused its discretion for the reasons

stated above. The Defendant respectfully requests that judgment be

reversed and this case be remanded for a new trial.

Respectfully Submitted

John M. Lamerson The Lamerson Law Firm State Bar No. 24076495 P.O. Box 241 Corpus Christi, Texas 78403 Telephone: (361) 816-9969 Facsimile: (866) 935-5634 lamersonlawfirm@gmail.com

By /S/ John Michael Lamerson JOHN M. LAMERSON

Attorney for Defendant Gabier Gonzales CERTIFICATE OF SERVICE

I hereby certify that a true, correct, and complete copy of the

foregoing was served on all counsel of record via e-filing and via

facsimile (361.364.9490) to the San Patricio County District Attorney's

Office, 400 West Sinton Street, Room 233, P.O. Box 1393, Sinton, TX

78387 in accordance with the Texas Rules of Appellate Procedure on

this day, July 28, 2015.

/S/ John Michael Lamerson JOHN M. LAMERSON RULE 9.4(I) CERTIFICATION

In compliance with the Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(I), is 1,891 per the Word software used to write this

document.

/S/ John Michael Lamerson JOHN M. LAMERSON