ACCEPTED 13-14-00677-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS FILED 3/8/2015 11:44:41 PM IN THE 13TH COURT OF APPEALS DORIAN RAMIREZ CORPUS CHRISTI CLERK
3/9/15 COURT OF APPEALS DORIAN E. RAMIREZ, CLERK BY DTello 13th SUPREME JUDICIAL DISTRICT OF RECEIVED TEXAS IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 3/9/2015 8:00:00 AM DORIAN E. RAMIREZ CASE NOs. 13-14-00677-CR, 13-14-00678-CR Clerk and 13-14-00679-CR Tr.Ct.Nos. 12-CR-2404-C, 13-CR-0268-C and 13-CR-3675-C _______________________________________________________ JOHN DOUGLAS HOUSTON APPELLANT VS.
THE STATE OF TEXAS APPELLEE
Appealed from the 94th Judicial District Court
Nueces County, Texas _______________________________________________________
APPELLANT'S BRIEF _______________________________________________________
RANDALL E. PRETZER, PLLC
State Bar No. 16279300
P.O. Box 18993
Corpus Christi, Texas 78480
BUS: (361) 883-0499
FAX: (361) 883-2290
E-Mail: RPretzer@Clearwire.net
ATTORNEY FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL
JUDGE PRESIDING
THE HONORABLE BOBBY GALVAN
94TH JUDICIAL DISTRICT COURT
901 LEOPARD STREET
CORPUS CHRISTI, TEXAS 78401
COUNSEL FOR THE STATE
MR. LEO HENRY GONZALEZ
ASSISTANT DISTRICT ATTORNEY
APPELLANT
MR. JOHN DOUGLAS HOUSTON
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
APPELLANT'S COUNSEL
MR. RANDALL E. PRETZER, PLLC
ATTORNEY FOR APPELLANT
P.O. BOX 18993 CORPUS CHRISTI, TEXAS 78480
i TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . ii-iii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . 1-2
STATEMENT OF FACTS . . . . . . . . . . . . . . . 2-8
SUMMARY OF THE FIRST ARGUMENT . . . . . . . . . . 8
FIRST POINT OF ERROR . . . . . . . . . . . . . . 8
FIRST POINT OF ERROR
THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE
EVIDENCE THAT APPELLANT COMMITTED THE OFFENSES AS SET
FORTH IN THE
MOTIONS TO REVOKE PROBATION.
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 8-9
SUMMARY OF THE SECOND ARGUMENT . . . . . . . . . 9-10
SECOND POINT OF ERROR . . . . . . . . . . . . . 10
SECOND POINT OF ERROR
THE PUNISHMENT ASSESSED BY THE JUDGE DURING THE
SENTENCING PHASE OF THE MOTIONS TO REVOKE
ii PROBATION WAS DISPROPORTIONATE TO THE
SERIOUSNESS OF THE ALLEGED OFFENSE, ALL IN
VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION.
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 10-20
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 20
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 21
CERTIFICATE OF COMPLIANCE, RULE 9.4(i), TRAP . . 21
iii INDEX OF AUTHORITIES
Cases: Page Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . . . . . . 10 Combs v. State, 652 S.W.2d 804, 806 (Tex.App.— Houston [1st Dist.] 1983, no pet.) . . . . . . . 10 Swenney v. State, 828 S.W.2d 254,258 (Tex. App.— Houston [1st Dist.] 1992) . . . . . . . . . . . . 11 Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex. Civ. App. — Tyler 1978, writ ref'd n.r.e.) . . . . . . 11 Houston Chronicle Publishing Co. v. City of Houston, th 531 S.W.2d 177 (Tex. Civ. App. — Houston [14 Dist.] 1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976) . . . . . . . . . . . . . . . . . . . 11 Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2nd 758 (1962) . . . . . . . . . . . . . . 11 Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . 12 Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) . . . . . . . . . . . 13 Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) . . . . . . . . . . . 13 Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed. 2d 637 (1983) . . . . . . . . . . . . . . . . . . 13 Harmelin v. Michigan, 111 S.Ct. 2680 (1991), 115 L.Ed.2d 836 (1991). . . . . . . . . . . . . . . . 14 iv COURT OF APPEALS
13th SUPREME JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI, TEXAS
CASE NOs. 13-14-00677-CR, 13-14-00678-CR and 13-14-00679-CR Tr.Ct.Nos. 12-CR-2404-C, 13-CR-0268-C and 13-CR-3675-C _______________________________________________________ JOHN DOUGLAS HOUSTON APPELLANT VS.
Nueces County, Texas _______________________________________________________
APPELLANT'S BRIEF _______________________________________________________
TO THE HONORABLE 13th COURT OF APPEALS:
STATEMENT OF THE CASE`
Previously on or about June 9, 2014, the state
filed with the Clerk of Nueces County, Texas, Original
Motions to Revoke Probation (MTR) under Cause Numbers
12-CR-2404-C, 13-CR-0268-C and 13-CR-3675-C. On
September 18, 2014, the court held a hearing
1 simultaneously on all three MTR’s wherein Appellant
pled NOT true to all four counts labeled (1), (1), (1)
and (2) which were identical in each cause number and
thus for efficiency Appellant will reference any page
numbers under Cause No. 12-CR-2404-C. (RR, Vol. 1, pp.
7-11). After listening to testimony of all witnesses
and argument from the state and Appellant, the court
found all counts set forth under each cause number to
be true. (RR, Vol. 3, page 77). Thereafter, the court
sentenced Appellant to ten (10) years in prison in each
case, all sentences to run concurrently since the court
did not specifically order that they run consecutively.
(RR, Vol. 1, pp. 78-79).
Appellant perfected his appeal in each case by
filing in writing his Notices of Appeal, on October 6,
2014 under Cause Nos. 12-CR-2404-C, 13-CR-0268-C and
13-CR-3675-C.
2 STATEMENT OF FACTS
Again, on March 27, 2012, the state filed with the
Clerk of Nueces County, Texas, an Original Motion to
Revoke Probation (MTR) under Cause Numbers 12-CR-2404-
C, 13-CR-0268-C and 13-CR-3675-C.
Again, on September 18, 2014, the court held a
hearing simultaneously on all three MTR’s wherein
Appellant pled NOT true to all four counts labeled (1),
(1), (1) and (2) which were identical in each cause
number and thus for efficiency Appellant will reference
any page numbers under Cause No. 12-CR-2404-C. (RR,
Vol. 1, pp. 7-11).
During the evidentiary hearing the state called
several witnesses to prove those allegations to which
Appellant pled NOT true. The first witness called by
the state was Officer David Alfaro, who testified as
follows: that on April 27, 2014, he was on duty with
Officer Villagomez; that on that evening he and Officer
Villagomez made a traffic stop with the driver of a car
3 since that driver was in violation of the law by using
his cell phone while operating a motor vehicle; that
the driver was the Appellant who had no drivers license
or proof of automobile insurance; that accordingly the
car would be impounded and the Appellant was asked to
step out of the car; that he conducted a “pat-down”
search of Appellant for the possibility of any weapons;
that he observed a clear plastic baggy on the driver’s
side of the car which appeared to contain a crystal-
like material which may have been a controlled
substance; that Officer Villagomez also found two small
packages of possible controlled substances in the same
car; that the officers also found another bag which
contained synthetic marijuana; that in addition they
found $1,038.00 in Appellant’s right rear pocket; that
there was a front passenger in the vehicle at the time
of the stop, but that the drugs were found on the
driver’s side of the same vehicle; that there were no
recordings, video or audio, of this incident; and, that
the officer did not know if the state had yet indicted
4 the Appellant for these alleged offenses. (RR, Vol. 3,
pp. 13-24).
Thereafter, the state called Officer Daryl Anderson
who testified as follows: that he assisted Officers
Alfaro and Villagomez with the inventory of the car
Appellant had driven; that he had also found a bag
underneath the driver’s side of the vehicle; that in
this bag he found some plastic bag, one of which
contained a substance which field-tested for cocaine;
that he related to the court his opinion that the
field-test was very reliable; and, that he confirmed
that Appellant did have cash on his person in the
amount, more or less, as stated by the initial
arresting officers. (RR, Vol. 3, pp. 24-31).
Thereafter, the state called its last witness,
Officer Reynaldo Tamez, who testified as follows: that
in July 2014 he was assisting the U.S. Marshals in
arresting those who had outstanding warrants and who
were classified as be violent subjects; that he
assisted the same Marshals in pursuing Appellant, along
5 with others, in a foot pursuit; that he apprehended
Appellant; that in the car and trailer from which he
fled, the Marshals found various financial instruments
which had previously stolen from three individuals
under burglary of their individual vehicles; that there
was another individual who fled from the car, but he
and the Marshals did not find him; and, that no one
found Appellant’s fingerprints on these financial
instruments, since neither the police nor Marshals made
an effort to lift any print samples. (RR, Vol. 3, pp.
31-44).
The state then rested its case.
Appellant elected to testify and after being duly
sworn, stated the following: that the cash found on his
person by the police was from his paycheck that he
earned as an electrical engineer with Central P
Recordings; that he was paid every two weeks in a gross
of about $1,700.00; that he knew nothing about the
alleged illegal drugs extracted from the vehicle; that
regarding the incident with the U.S. Marshal’s office,
6 he had no idea who those officers were at that time,
since they never flashed any police lights from their
car, never showed any badges, and were not dressed in
any uniforms which might indicate they were officers of
the law; that one man pointed a gun at him and
accordingly he fled in fright not wanting to be shot by
these strange men who were not in uniform, showing any
badges, or flashing any police lights from their
vehicle; that when he finally saw police in uniforms
and overt identifications, he then laid on the ground
and put his hands behind his body; that when questioned
by the state regarding the incident with the drugs in
the car, Appellant related that the car was not his and
that he had driven it for maybe ten (10) minutes before
being arrested; that when he was pursued by the
Marshals, that vehicle was not his and he had driven it
for only a short time; and, under cross-examination by
the state, Appellant again stated that he knew nothing
about the stolen financial instruments and nothing
7 about the drugs in the other vehicle. (RR, Vol. 3, pp.
45-76).
The Appellant and state rested.
The court listen to argument from the state and
Appellant regarding findings and disposition.
Thereafter, the court found that all counts set forth
under each cause number to be true. (RR, Vol. 3, page
77). Accordingly, the court sentenced Appellant to ten
(10) years in prison in each case, all sentences to run
concurrently since the court did not specifically order
that they run consecutively. (RR, Vol. 1, page 78-79).
SUMARY OF THE FIRST ARGUMENT
The state did not provide sufficient evidence to
prove by a preponderance of such evidence that
Appellant was, in fact, criminally involved in those
allegations set forth in counts (1), (1), (1) and (2)
of the Motions to Revoke Probation.
8 THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE
FORTH IN THE MOTIONS TO REVOKE PROBATION.
ARGUMENT AND AUTHORITIES
The honorable 13th Court of Appeals will note that
the Appellant related in his testimony that he was, in
fact, in the wrong place at the wrong time as rightly
stated (admitted?) by the prosecution in his cross-
examination. The Appellant testified that he was not
the owner of the two vehicles involved in the
allegations. Appellant specifically denied any
knowledge of the drugs or stolen financial documents.
Appellant never had any drugs or stolen financial
documents on his person. Appellant fled when he a man
pointed a gun at him, such man NOT (according to his
testimony) being in uniform, never displaying a badge,
and never turning on police lights. Finally, Appellant
related to the court that the $1,038.00 found in his
back pocket was money he had earned working as an
9 electrical engineer for a recording company.
Accordingly, it was Appellant’s position that his
rebuttal evidence negated any finding of TRUE under the
standard of preponderance of evidence, all in violation
of the 5th and 14th Amendments of the U.S. Constitution.
SUMMARY OF THE SECOND ARGUMENT
The sentence imposed by the judge was excessive and
disproportionate to the offenses committed in each case
and thus violated the 8th and 14th Amendments of the U.S.
Constitution.
PROBATION WAS DISPROPORTIONATE TO THE
SERIOUSNESS OF THE ALLEGED OFFENSES, ALL IN
10 ARGUMENT AND AUTHORITIES
Appellant notes that under the previous rulings of
the Texas Court of Criminal Appeals, an appeal prefaced
on the grounds of disproportionate punishment may be
frivolous. Harris v. State, 656 S.W.2d 481, 486
(Tex.Crim.App.1983); Combs v. State, 652 S.W.2d 804,
806 (Tex. App.-- Houston [1st Dist.] 1983, no pet.).
However, Appellant raised this specific issue to ensure
there was no waiver of an anticipatory claim of
disproportionate punishment in Federal Court. See
Swenney v. State, 828 S.W.2d 254, 258 (Tex. App.—
Houston [1st Dist.] 1992). Clearly, it was within a
court's power to review a sentence imposed by judge or
jury and to determine whether such sentence passed
constitutional muster, even if no objections were made
during trial. Lovejoy v. Lillie, 569 S.W.2d 501, 503
(Tex. Civ. App. — Tyler 1978, writ ref'd n.r.e.);
Houston Chronicle Publishing Co. v. City of Houston,
531 S.W.2d 177 (Tex. Civ. App. — Houston [14th Dist.]
11 1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976).
Accordingly, the issue was one of PROPORTIONALITY.
The Eighth Amendment of the Constitution of the
United States provides as follows: "Excessive bail
shall not be required, nor excessive fines imposed, nor
cruel and unusual punishment inflicted." Robinson v.
California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2nd 758
(1962), held that the Eighth Amendment was
applicable to punishments imposed by state courts
through the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. Marbury
v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), concluded
that it was within the powers and duties of the
judicial branch of our government to determine what was
the law and whether or not a law was constitutional.
Clearly, it was within a court's power to review a
sentence imposed by judge or jury and to determine
whether such sentence passed constitutional muster.
Though the Trial Court had imposed a ten (10) year
prison sentence under each cause number, such sentences
12 to run concurrently, this did not mean ipso facto that
any sentence within the range of punishment was exempt
from constitutional scrutiny simply because that was
what a legislative body authorized courts and juries to
impose -– obviously such an argument is circular in its
construction. If such were the case, then any state
legislature could with complete impunity pass Draconian
laws, for example, that made overtime parking an
offense punishable by life imprisonment.
In previous decisions the United States Supreme
Court concluded that the Eighth Amendment's bar to
cruel and unusual punishments was an evolving standard
which proscribed needless or barbaric infliction of
pain and sanctions which were disproportionate to the
severity of a crime. Gregg v. Georgia, 428 U.S. 153,
173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976); Coker
v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53
L.Ed.2d 982 (1977). Accordingly, in a 1983 U.S.
Supreme Court decision, the justices set forth certain
standards by which appellate courts might objectively
13 review court or jury assessed punishments to determine
if they violated the proscriptions of the Eighth
Amendment. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001,
77 L.Ed.2d 637 (1983). The objective standards set
forth in Solem were as follows:
1. "the gravity of the offense and the
harshness of the penalty," 463 U.S., at 290-
291, 103 S.Ct., at 3009-3010;
2. "the sentences imposed on other criminals in
the same jurisdiction," id., at 291, 103 S.Ct.,
at 3010; and,
3. "the sentences imposed for commission of the
same crime in other jurisdictions," id. at 219-
292, 103 S.Ct., at 3010.
However, in a U.S. Supreme Court decision, the
Justices, by a 5-4 majority, chose to limit the
application of the standards in Solem and stated that
there was no proportionality guarantee (possibly with
the exception of death penalty cases) in the Eight
Amendment. Harmelin v. Michigan, 111 S.Ct. 2680 (1991),
14 115 L.Ed.2d 836 (1991). Regardless, it was Appellant's
position that the majority in Harmelin recognized that
indeed the Eighth Amendment provided a limited
proportionality component when Justice Scalia stated as
follows:
"We think it enough that those who framed
and approved the Federal Constitution chose,
for whatever reason, not to include within it
the guarantee against disproportionate
sentences that some State Constitutions
contained. It is worth noting, however, that
there was good reason for that choice -- a
reason that reinforces the necessity of
overruling Solem. While there are relatively
clear historical guidelines and accepted
practices that enable judges to determine which
modes (emphasis added) of punishment are "cruel
and unusual," proportionality (emphasis added)
does not lend itself to such analysis. Neither
15 congress nor any state legislature has ever set
out with the objective of crafting a penalty
that is "disproportionate," yet as some of the
examples mentioned above indicate, many enacted
dispositions seem to be so -- because they were
made for other times or other places, with
different social attitudes, different criminal
epidemics, different public fears, and
different prevailing theories of penology.
That is not to say that there are no
absolutes; one can imagine extreme examples
that no rational person, in any time or place
could accept. But for the same reason these
examples are easy to decide, they are certain
never to occur (emphasis added). Harmelin, at
111 S.Ct., at 2696-2697.
Appellant concedes that Harmelin, may have
narrowed, though not necessarily eliminated, the
proportionality component of the Eighth Amendment.
16 However, Harmelin did not provide any new objective
standards by which to review and reverse those
"examples" which "are easy to decide" other than
Justice Kennedy’s conclusion that the first objective
standard in Solem (the gravity of the offense and the
harshness of the penalty) shall be the initial hurdle
that a reviewing court must overcome before ever
considering the remaining standards two and three in
Solem. Harmelin, 111 S.Ct., at 2707. Accordingly,
Appellant contends that in reality Harmelin has no
language prohibiting appellate courts from reviewing
the constitutionality of a particular punishment in the
light of concepts of proportionality set forth in
Solem. To contend now that proportionality was now so
narrow that it was without meaning (with the exception
of death penalty cases, Harmelin at 111 S.Ct. at 2701),
that lawmakers may run amok enacting reactionary
legislation, and that judges or juries may impose
sentences with absolute immunity from judicial review,
was difficult to comprehend when you consider our
17 national and historical deference to fundamental
governmental concepts of separation of powers, and
checks and balances.
The concept of proportionality was ancient and
fundamental to the jurisprudence of emerging world
civilizations. The concept of limiting the penal
sanction through proportionality predates Magna Carta
or English Common Law and can be found in the Code of
Hammurabi which placed limits on punishment by
proscribing an eye for an eye, a tooth for a tooth, or
more concisely: no more than an eye for an eye, and no
more than a tooth for a tooth. Accordingly, Appellant
contended that despite the 5-4 decision in Harmelin,
the appellate courts should examine case law that
attempted to provide rational standards for reviewing
particular punishments in determining whether
particular penal sanctions were disproportionate to the
severity of a particular crime.
As previously mentioned, the United States Supreme
Court in Solem established three major factors for
18 consideration and application in determining whether a
punishment violated the Eighth Amendment's "cruel and
unusual" proscriptions. In Appellant's particular case,
the punishment assessed by the court of a ten (10) year
to run concurrently, was excessive and clearly should
be reserved for more heinous offenders so that such a
sanction was meaningful under concepts of retribution
and deterrence.
If this honorable Court of Appeals applied the
facts of Appellant's case to those three standards set
forth in Solem it could move through the first
threshold standard (the gravity of the offense and the
harshness of the penalty -- now required by Harmelin);
find that proportionality was an issue; conclude that
statistically intrastate sentences, from judges or
juries, would not be as harsh; and, further conclude
that the same intrastate statistics would apply to
interstate sentences.
19 The Court's imposition of a ten (10) year prison
sentence under each cause number, such sentences to run
concurrently, violated the punishment proscriptions of
the Eighth Amendment of the United States Constitution
as applied to the various States by the Fourteenth
Amendment, and warrants at least a new punishment
hearing for Appellant in the trial Court. Again, this
honorable Court of Appeals will recall that during the
findings phase of the hearing that the court could have
found that Appellant’s rendition of the drug case and
then the financial instruments case were not
unreasonable and constituted his version of the events
wherein he was in fact in the wrong place at the wrong
time – a predicament that many individuals have
experienced. Regardless, the Appellant had been on
community supervision for a very short period of time
and considering his not irrational version of the
events he should be returned to community supervision
and placed on intensive supervision for probable
substance abuse issues.
20 PRAYER FOR RELIEF
For ALL the reasons stated above, Appellant
respectfully requests that the honorable 13th Court of
Appeals reverse the trial court’s judgment, set aside
the sentence of Appellant, and remand the case back to
court for a new sentencing hearing, or reverse the
sentencing portion of the trial and render an order
returning Appellate forthwith to probation status under
any terms and conditions set by the trial court to
include intensive supervision for probably substance
abuse issues.
RESPECTFULLY SUBMITTED:
/S/ Randall E. Pretzer Randall E. Pretzer, PLLC Attorney for Appellant State Bar No. 16279300 P.O. Box 18993 Corpus Christi, Texas 78480 BUS: (361) 883-0499 FAX: (361) 883-2290 E-Mail: RPretzer@Clearwire.net
CERTIFICATE OF SERVICE
21 I certify that a true and correct copy of
Appellant's Brief was delivered to Nueces County
District Attorney’s Office, 901 Leopard Street, Corpus
Christi, Texas 78401, by hand-delivery on February 10,
2015.
/S/ Randall E. Pretzer Randall E. Pretzer, PLLC Attorney for Appellant
CERTIFICATE OF COMPLIANCE UNDER RULE 9.4 (i), TRAP
Please be advised that in compliance with Texas
Rule of Appellate Procedure 9.4(i)(3), as amended, I
certify that the number of words in this brief,
excluding those matters listed in Rule 94 (i)(1), is
2,979 as per the computer count.
/S/ Randall E. Pretzer Randall E. Pretzer, PLLC Attorney for Appellant