ACCEPTED 12-15-00171-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/28/2015 11:22:57 AM Pam Estes CLERK
RECEIVED IN 12th COURT OF APPEALS CASE NO. 12-15-00171CR TYLER, TEXAS 9/28/2015 11:22:57 AM IN THE TWELFTH COURT OF APPEALS PAM ESTES TYLER, TEXAS Clerk
JIMMY ANDREW DAVIS, JR., Appellant 9/28/2015 Vs.
THE STATE OF TEXAS, Appellee
On Appeal from the
3RD Judicial District Court, Anderson County, Texas
(Trial Court No. 31760)
Honorable MARK CALHOON
BRIEF OF APPELLANT
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
1 PARTIES
JIMMY ANDREW DAVIS, JR. APPELLANT
Mark W. Cargill Attorney for Defendant/Appellant 701 N. Elm Palestine, Texas 75801
Allyson Mitchell District Attorney 500 N. Church Street Palestine, Texas 75801
2 TABLE OF CONTENTS Page Table of Contents………………………………………………………………………………………….. 3
Index of Authorities……………………………………………………………………………………….. 4
Statement of the Case…………………………………………………………………………………... 6
Point of Error Number One…………………………………………………………………… 6
Statement of Facts……………………………………………………………………………………….. 6
Point of Error Number One Restated…………………………………………………………... 6
Summary of Argument ……………………………………………………………………………... 6
Argument ……………………………………………….…………………………………………………….. 7
Prayer…………………………………………………………………………………………………………… 9
Certificate of Service…………………………………………………………………………………... 10
3 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
Bell v. State, 233 S.W. 3d 583 (Tex. App. Waco 2007, pet dismissed) 8, 9
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
Hoitt v. State, 28 S.W. 3d 162 (Tex. App. Texarkana 2000, no pet) 8,9
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
McCoy v. State, 932 SW 2d 720, (Tex. App. 1996, pet refused) 8,9
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 CASE NO. 12-15-00171CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
Vs.
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, JIMMY ANDREW DAVIS, JR. the Appellant, and files this his
Brief of Appeal in the above-entitled and numbered cause.
5 STATEMENT OF THE CASE
On March 24, 2015, Defendant, JIMMY ANDREW DAVIS, JR., was found guilty
of MANUFACTURING AND DELIVERY OF A CONTROLLED SUBSTANCE PG1 <1G,
DRUG FREE ZONE in a jury trial, on 6/5/2015 the Court sentenced him to 30 years
in the Texas Department of Criminal Justice Institutional Division. Defendant timely
appealed.
ISSUE PRESENTED
POINT OF ERROR NUMBER ONE
The trial court errored in rendering judgment and sentencing Appellant to 30
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 punishment trial and other
testimony from Defendant and other witnesses to render their sentence.
(Sentencing RR Vol. 1, page 12)
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 if
cruel and unusual treatment. To sentence a Defendant to a sentence that is
6 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 survies:
Sloem 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
7 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).
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ACCEPTED 12-15-00171-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/28/2015 11:22:57 AM Pam Estes CLERK
RECEIVED IN 12th COURT OF APPEALS CASE NO. 12-15-00171CR TYLER, TEXAS 9/28/2015 11:22:57 AM IN THE TWELFTH COURT OF APPEALS PAM ESTES TYLER, TEXAS Clerk
JIMMY ANDREW DAVIS, JR., Appellant 9/28/2015 Vs.
THE STATE OF TEXAS, Appellee
On Appeal from the
3RD Judicial District Court, Anderson County, Texas
(Trial Court No. 31760)
Honorable MARK CALHOON
BRIEF OF APPELLANT
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
1 PARTIES
JIMMY ANDREW DAVIS, JR. APPELLANT
Mark W. Cargill Attorney for Defendant/Appellant 701 N. Elm Palestine, Texas 75801
Allyson Mitchell District Attorney 500 N. Church Street Palestine, Texas 75801
2 TABLE OF CONTENTS Page Table of Contents………………………………………………………………………………………….. 3
Index of Authorities……………………………………………………………………………………….. 4
Statement of the Case…………………………………………………………………………………... 6
Point of Error Number One…………………………………………………………………… 6
Statement of Facts……………………………………………………………………………………….. 6
Point of Error Number One Restated…………………………………………………………... 6
Summary of Argument ……………………………………………………………………………... 6
Argument ……………………………………………….…………………………………………………….. 7
Prayer…………………………………………………………………………………………………………… 9
Certificate of Service…………………………………………………………………………………... 10
3 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
Bell v. State, 233 S.W. 3d 583 (Tex. App. Waco 2007, pet dismissed) 8, 9
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
Hoitt v. State, 28 S.W. 3d 162 (Tex. App. Texarkana 2000, no pet) 8,9
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
McCoy v. State, 932 SW 2d 720, (Tex. App. 1996, pet refused) 8,9
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 CASE NO. 12-15-00171CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
Vs.
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, JIMMY ANDREW DAVIS, JR. the Appellant, and files this his
Brief of Appeal in the above-entitled and numbered cause.
5 STATEMENT OF THE CASE
On March 24, 2015, Defendant, JIMMY ANDREW DAVIS, JR., was found guilty
of MANUFACTURING AND DELIVERY OF A CONTROLLED SUBSTANCE PG1 <1G,
DRUG FREE ZONE in a jury trial, on 6/5/2015 the Court sentenced him to 30 years
in the Texas Department of Criminal Justice Institutional Division. Defendant timely
appealed.
ISSUE PRESENTED
POINT OF ERROR NUMBER ONE
The trial court errored in rendering judgment and sentencing Appellant to 30
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 punishment trial and other
testimony from Defendant and other witnesses to render their sentence.
(Sentencing RR Vol. 1, page 12)
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 if
cruel and unusual treatment. To sentence a Defendant to a sentence that is
6 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 survies:
Sloem 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
7 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 charged with a 3rd degree felony offense of
Manufacturing/Delivering of Controlled Substance PG1<1G, drug free zone.
Appellant was found guilty to the charged offense but his punishment 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 10 years or less than 2 years and in addition to the
imprisonment, may be assessed a fine not to exceed $10,000.00. Additionally,
Defendant had enhancements of previous convictions which made the range of
punishment not more than 99 years to life or less than 25.
The sentence of 30 years’ incarceration is grossly disproportionate.
In terms of other manufacturing/delivery of controlled substance PG1<1G
drug free zone cases, the facts which made up the gist of the manufacturing/delivery
8 of controlled substance PG1<1G drug free zone, now before this Court, this Court
must conclude that the punishment assessed, the sentence of 30 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/delivery of a controlled substance PG1<1G, drug free zone cannot
exceed a 10 years sentence life with enhancements. Appellant was sentenced to 30
years. It is clear that other much more serious manufacturing/delivery of a
controlled substance PG1<1G drug free zone 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. Thirty years’ confinement in prison is
not proportionate for the offense of manufacturing/delivery of a controlled
substance PG 1<1G drug free zone 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 Respectfully submitted,
CARGILL & ASSOCIATES Mark W Cargill BY: /s/ Mark W. Cargill Mark W. Cargill SBN: 00787201 701 N. Elm Palestine, Texas 75801 Telephone: 903/729-8011 Facsimile: 903/729-5112 cargillaw@earthlink.net
Attorney for Appellant
CERTIFICATE OF SERVICE
This is the certify that on September 27, 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.
Mark W Cargill /s/Mark W. Cargill Mark W. Cargill
Word Count
On this 27th day of September 2015, I, Mark W. Cargill, hereby certifies that this brief has a word count of 1598.
Mark W Cargill _______________________________________________ Mark W. Cargill