James Garza v. State

Opinion

ACCEPTED 04-15-00456-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 10/14/2015 2:34:44 PM KEITH HOTTLE CLERK

NO.

04-­‐15-­‐00456-­‐CR

IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 10/14/15 2:34:44 PM KEITH E. HOTTLE

Clerk

JAMES GARZA.

Appellant

V.

THE STATE OF TEXAS,

Appellee

ON APPEAL FROM THE 290th DISTRICT COURT

OF BEXAR COUNTY TEXAS

CAUSE NUMBER 2009-­‐CR-­‐12648A

BRIEF FOR THE APPELLANT

EDWARD F. SHAUGHNESSY

206 E. Locust Street

San Antonio, Texas 78212

(210) 212-­‐6700

(210) 212-­‐2178 (FAX)

Shaughnessy727@gmail.com

SBN 18134500

ORAL ARGUMENT REQUESTED

ATTORNEY FOR APPELLANT

TABLE OF CONTENTS

Table of Contents ..................................................................................................... ii

Table of Interested Parties ...................................................................................... iii

Table of Authorities..................................................................................................iv

Brief for the Appellant .............................................................................................. v

Summary of the Argument ...................................................................................... 6

Argument and Authorities ....................................................................................... 9

Conclusion and Prayer ............................................................................................10

Certificate of Service ............................................................................................... 12

Certificate of Compliance…………………………………………………………………………....12

ii PARTIES AND COUNSEL

TRIAL COUNSEL FOR THE STATE:

WENDY WILSON

Assistant Criminal District Attorney

Bexar County, Texas

401 W. Nueva

San Antonio, Texas 78205

TRIAL COUNSEL FOR APPELLANT:

EDWARD F. SHAUGHNESSY, III

206 E. Locust

APPELLANT’S ATTORNEY ON APPEAL:

San Antonio, Texas

(210)212-­‐6700

(210) 212-­‐2178 Fax

TRIAL JUDGE:

MELISA SKINNER

290th Judicial District

iii

TABLE OF AUTHORITIES

Cases

Bear Cloud v. State, 334 P.3d 132 (Wyoming 2014)………………………………..……..10

Eddings v. Oklahoma, 102 S. Ct. 869 (1987)………………………………………....………10

Miller v. Alabama, _____ U.S._____, 132 S. Ct. 2455 (2012)…………..………....7, 8, 9, 10

State v. Dull, 351 P.2d 641 (Kansas 2015)…………………………………………………….10

State v. Lyle, 854 N.W.2d 378 (Iowa 2014)………………………………………………...…10

iv NO. 04-­‐15-­‐00456-­‐CR

JAMES GARZA,

§ COURT OF APPEALS, FOURTH

§

§ COURT OF APPEALS DISTRICT

§ SAN ANTONIO, TEXAS

TO THE HONORABLE COURT OF APPEALS:

Now comes the appellant, James Garza and files this brief in Cause

No. 04-­‐14-­‐00456-­‐CR.

The appellant appeals from a judgment of the

290th District Court of Bexar County, Texas.

The appellant was indicted by a Bexar County grand jury for the

offense of Capital Murder on December 16, 2009.

He was subsequently

convicted by a jury and sentenced to Life, without the possibility of

parole, in the Texas Department of Criminal Justice-­‐ Institutional

Division.

That conviction was and sentence was appealed to this Court.

On October 12, 2012, this Court affirmed the judgment of the trial Court

in all respects. See: Garza v. State, (04-­‐22-­‐00891-­‐CR, Tex. App.-­‐San

5 Antonio, October 24, 2012) (2012 WL 5236048).

The appellant

subsequently sought and obtained a Petition for Discretionary Review

to the Court of Criminal Appeals.

On June 11, 2014, that Court reversed

the judgment of this Court and remanded the cause, to this Court, for

further proceedings.

Garza v. State, 435 S.W. 3d 258 (Tex. Crim. App.

2014).

This Court subsequently reversed and remanded the cause to the

trial Court for purposes of resentencing.

Garza v. State, 453 S.W.3d 548

(Tex. App.-­‐San Antonio, 2014)

The appellant thereafter appeared in the 290th District Court for

purposes of resentencing. (C.R.-­‐179, 180, 181)

Following a sentencing

hearing conducted, before the trial Court, the appellant was sentenced

to Life in the Texas Department of Criminal Justice-­‐Institutional

Division. (S.C.R.-­‐3, 4)

The appellant thereafter filed a written notice of

appeal and this appeal was pursued. (C.R.-­‐173)

SUMMARY OF ARGUMENT

The trial Court erred in refusing to provide the appellant a

sentencing hearing that complied with the dictates of the United States

Supreme Court set forth in Miller v. Alabama, _____ U.S._____, 132 S.Ct.

2455 (2012).

STATEMENT OF APPLICABLE FACTS

Prior to the sentencing hearing, ordered by this Court in its

opinion of December 23, 2014, the appellant caused to be filed a written

Motion fro Appointment of an Independent Expert Witness. (C.R.-­‐167)

That motion sought two species of relief from the trial Court prior to the

“resentencing” hearing ordered by this Court.

It sought to have the trial

Court to appoint an expert witness in the issue of “mitigation”.

In

addition the motion requested that the “resentencing” be conducted

before a jury and that, the potential range be that of a traditional first

degree felony

(Five years to Life)1.

(C.R.167 thru 170)

On the date the

1 Prior to the onset of the trial the appellant had caused to be file a written Election of Punishment wherein he notified that he desired that a jury assess his punishment in the 7 case was called for the “resentencing”, that motion was presented to the

trial Court.

After hearing arguments from counsel, the trial Court

denied the relief requested in the motion. (R.R.-­‐9)

The trial Court then proceeded with an evidentiary hearing

limited to the single issue of whether or not the appellant was

seventeen years of age at the time of the commission of the offense.

The

appellant presented evidence that established that he was seventeen

years of age at the time of the commission of the offense.

The State of

Texas presented no evidence to contradict the appellant’s evidence on

that particular issue.

The trial Court then made a factual finding that the

appellant was seventeen years of age at the time of the commission of

the offense. (R.R.-­‐13)

Thereafter the trial Court assessed the appellant’s

punishment as Life in the Texas Department of Criminal Justice-­‐

Institutional Division with the possibility of parole. (R.R.-­‐14)

An

amended judgment was entered to reflect the action of the trial Court.

(S.C.R.-­‐3,4)

APPELLANT’S SOLE POINT

OF ERROR

THE TRIAL COURT ERRED, IN VIOLATION OF

THE EIGHTH AMENDMENT TO THE

UNITED STATES CONSTITUTION, IN REFUSING

THE APPELLANT’S REQUEST FOR A PUNISHMENT

HEARING CONSISTENT WITH THE HOLDING OF THE

UNITED STATE SUPREME COURT IN

MILLER V. ALABAMA, ____U.S.____, 132 S.CT. 2455 (2012)

ARGUMENT AND AUTHORITIES

As has been noted by both this Court and the Court of Criminal

Appeals, the appellant has never been accorded a sentencing hearing of

any sort and has been sentenced initially to Life without the possibility

of parole, and thereafter to Life.

As a consequence, the seventeen year

old defendant2 has never been accorded a sentencing hearing which

allowed him to present meaningful mitigation evidence,

the Eighth

Amendment to the United States Constitution3, as recently construed in

the context of defendant’s under the age of eighteen at the time of the

offense, mandates that offenders seventeen years of age or younger be

2 At the time of the offense. 3 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 9 accorded a sentencing hearing that allows a sentence to take into

account the background and mental and emotional development of a

youthful defendant be duly considered in

assessing his culpability.

Miller v. Alabama, supra, pg. 2467. (Citing: Eddings v. Oklahoma, 102 S.Ct.

869 (1987)).

The Court explained the rationale behind its holding that

life without the possibility of parole for youthful offenders was

inconsistent with the Eighth Amendment in the following terms:

Such mandatory penalties, by their nature, preclude

a sentencer from taking account of an offender’s age

and the wealth of characteristics and circumstances

attendant to it.

Miller v. Alabama, supra at 2468.

The sentencing protocol employed in the instant case is

fundamentally indistinguishable from that found flawed in Miller.

Life

in confinement is no less a mandatory sentence than Life in confinement

without the possibility of parole.

Consequently a mandatory sentence of

life for a youthful offender, such as that imposed herein, is violative of

the Eighth Amendment because it is a sentence that wholly fails to allow

for the admission and consideration of mitigating factors attributable to

the youth of the offender.

See: State v. Dull, 351 P.2d 641 (Kansas 2015);

State v. Lyle, 854 N.W.2d 378 (Iowa 2014); Bear Cloud v. State, 334 P.3d

132 (Wyoming 2014).

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant, James Garza,

prays that this Court, reverse the judgment of the trial Court and

remand the cause for purposes of a new punishment hearing and a

sentence imposed by a jury.

/s/Edward F. Shaughnessy,III

Attorney for the appellant

CERTIFICATE OF SERVICE

I, Edward F. Shaughnessy, III, attorney for the appellant hereby

certify that a true and correct copy of the instant pleading was served

upon Nico LaHood, Criminal District Attorney for Bexar County, 401 W.

Nueva,

San Antonio, Texas 78205 by use of the U.S. Mail on this

the__14__ October, 2015.

/s/ Edward F. Shaughnessy,III

CERTIFICATE OF COMPLIANCE

I, Edward F. Shaughnessy, III, attorney for the appellant, hereby

certify that the instant document contains

words.

//Edward F. Shaughnessy,III