Marshall Deshun Parker v. State

• Court: Court of Appeals of Texas
• Decided: March 24, 2015
• Docket: 06-14-00238-CR
• Status: Published

Opinion

ACCEPTED 06-14-00238-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/24/2015 10:41:10 AM DEBBIE AUTREY CLERK

Cause No. 06-14-00238-CR

*************** FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 3/24/2015 10:41:10 AM DEBBIE AUTREY IN THE COURT OF APPEALS Clerk

SIXTH APPELLATE DISTRICT OF TEXAS

AT TEXARKANA, TEXAS

***************

MARSHALL DESHUN PARKER

VS.

THE STATE OF TEXAS

**************

APPELLATE BRIEF PURSUANT TO ANDERS V. CALIFORNIA

Appealed from the 71st Judicial District Court of

Harrison County, Texas

Trial Court No. 13-0417X

Appellant does not request oral argument.

Page -1- Cause No. 06-14-00238-CR

MARSHALL DESHUN PARKER § IN THE COURT OF

VS. § APPEALS, SIXTH DISTRICT

THE STATE OF TEXAS § STATE OF TEXAS

NAMES OF ALL PARTIES AND ATTORNEYS

Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant certifies

that the following is a true and correct list of all parties to the trial court’s final

judgment, and their counsel:

MARSHALL DESHUN PARKER, Appellant Telford Unit, New Boston Texas

THE HONORABLE BRAD MORIN, Trial Judge 200 W. Houston Marshall, Texas 75670

Mr. Kyle Dansby, Trial Attorney for MARSHALL DESHUN PARKER AT TRIAL P.O. Box 1914 Marshall, Texas 75671

SCOTT RECTENWALD, Appellate attorney for MARSHALL DESHUN PARKER 110 W. Fannin St. Marshall, Texas 75670

Mr. Shawn Connally and Ms. Kristin Kaye, Assistant District Attorneys AT TRIAL Mr. Tim Carriker, Assistant District Attorney ON APPEAL 200 W. Houston, 2d Floor Marshall, Texas 75670 Page -2- TABLE OF CONTENTS

NAMES OF ALL PARTIES.................................................................... 2

TABLE OF CONTENTS ........................................................................ 3

INDEX OF AUTHORITIES ................................................................... 4

PRELIMINARY STATEMENT ............................................................. 5

ARGUABLE POINTS PRESENTED .................................................... 5

STATEMENT OF FACTS ..................................................................... 6

ARGUABLE POINT NUMBER ONE .................................................... 10

Summary of Argument ............................................................... 10

Argument and Authorities ................................................... 11

ARGUABLE POINT NUMBER TWO .................................................... 13

Summary of Argument ................................................................... 13

Argument and Authorities .................................................. 14

PRAYER ................................................................................................ 15

CERTIFICATE OF SERVICE .............................................................. 16

Page -3- INDEX OF AUTHORITIES

CASE AUTHORITIES:

Cardona v. State, 665 S.W.2d 492, 493–94 (Tex.Crim.App.1984) .............. 11

Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993) .......................... 11

Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App. --

Texarkana 1995, pet. ref'd).............................................................................. 15

Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.

[Panel Op.] 1981) ........................................................................................... 11

Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no pet.)....... 14

Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App.1973)........................ 14

Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd)......... 14,15

Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App.1980).................... 11, 13

Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001,

77 L. Ed. 2d 637, 650 (1983).......................................................................... 14, 15

STATUTES AND CODES:

Texas Government Code § 481.133 ........................................................... 10

T.R.A.P. 33.1(a)(1)(A).................................................................................. 115

U.S. CONST., amend. VIII............................................................................... 14

Page -4- PRELIMINARY STATEMENT OF THE CASE

Appellant MARSHALL DESHUN PARKER appeals his conviction for the

offenses of Credit or Debit Card Abuse, Burglary of a Building, and Escape from

Custody. Appellant plead guilty before the Court on April 17, 2014 (CR Vol. I,

Page 21-30) and was sentenced to twenty-four months in the State Jail on counts I

and II, probated for a period of five years; and 10 years in TDCJ, probated for

five years on Count III (CR Vol I., Pages 31-35) . The State filed a motion to

revoke the Appellant’s probation. Following pleas of not true to the allegations of

the motion to revoke, the Court held a hearing and found that motion to revoke

should be granted, and sentenced the Appellant to sentences of 22 months for

counts I & II, and 8 years on Count III (CR Vol. I, Page 75-76). This is a direct

appeal.

ARGUABLE ISSUES EVALUATED

ISSUE NUMBER ONE

Was the evidence sufficient to sustain a finding that the Appellant’s

probation should be revoked?

ISSUE NUMBER TWO

Was the punishment in the Appellant’s case disproportionate and a violation

of his rights under the Eighth Amendment to the United States Constitution?

Page -5- STATEMENT OF FACTS

Appellant Marshall Deshun Parker entered a plea of guilt to the offenses of

Credit or Debit Card Abuse, Burglary of a Building, and Escape from Custody on

April 17, 2014. (CR Vol. I, Page 21-30) The State filed a motion to revoke

probation on June 9, 2014, alleging that Appellant had committed the offense of

Tampering with a Governmental Record (his own community service log) and

had failed to perform community service hours. (CR Vol. 1, Page 62) The State

ultimately amended its motion to revoke probation on September 5, 2014 to also

allege that the Appellant had evaded arrest or detention, and had possessed urine

with the intent to use it to falsify a drug test. (CR Vol. I, Page 68)

On September 16, 2014, the case was called for a hearing on the State’s

Motion to Revoke Probation, and the parties announced “ready.” (RR Vol. I, Page

7) Appellant plead not true to all of the allegations. (RR Vol. I, Pages 8-11)

The State called the Appellant’s probation officer Stan Boyd, and

Appellant’s counsel immediately objected to any testimony from Mr. Boyd on the

basis that he had not been given discovery from Mr. Boyd’s office in a timely way.

(RR Vol. I, Pages 11-13) However, the State offered to agree to a continuance

(RR Vol. I, Page 14), and the Court offered to grant a continuance to the Appellant

in the event that he felt unready to proceed (RR Vol. I, Page 16). The Appellant

Page -6- elected to proceed, but continued to object to the introduction of evidence from

Mr. Boyd on the basis that it had not been timely provided. The Court overruled

that objection. (RR Vol. I, Page 17)

Stan Boyd testified that according to his records, the Appellant would

report, but failed to perform community service hours. (RR Vol. I, Page 19) Mr.

Boyd testified that Appellant failed to do community service hours for the week of

May 9th , 2014, and that Boyd admonished Appellant for failing to perform. (RR

Vol. I, Page 20) Mr. Boyd testified that Appellant failed to do his community

service for the weeks of May 16, 23, and 30, 2014, but kept trying to make

payment or a donation for community service hours (although the policy of the

Community Supervisions Office was not to allow a donation until the first half of

the community service hours required by the Court had been completed). (RR

Vol. I, Page 20-22) Mr. Boyd also testified that the Appellant provided him with

a community service log (State’s Exhibit 2), which is a governmental document,

(RR Vol. I, Page 23) and the log appeared suspicious to him because dates had

been altered. (RR Vol. I, Page 25) When Mr. Boyd asked Appellant about the

entry, Appellant advised that he had worked for Community Supervision Officer

Cruz Vances earlier that day, and had also been to the Art Center, racking up

twelve hours on that day. (RR Vol. I, Page 26) Mr. Boyd later had a discussion

Page -7- with Officer Cruz Vances about whether his signature appeared on that document,

and contacted the Arts Center where Appellant indicated that he had performed

community service. As a result of those discussions, Mr. Boyd had a warrant

issued for violation of Appellant’s probation. (RR Vol. I, Page 27)

When Appellant next reported to Mr. Boyd, Boyd informed Appellant that

he was being arrested for violation of probation. (RR Vol. I, Page 28) Detective

Cindy Black was sent by the Sheriff’s department to detain Appellant, (RR Vol. I,

Page 28) but when she attempted to put him in custody, Mr. Boyd observed

Appellant flee down the hallway and turn for the courthouse stairs. (RR Vol. I,

Page 29)

Mr. Boyd also testified that another probationer that he supervised

indicated to him that there was a prescription bottle in the third floor restroom

where urine samples are collected from probationers. (RR Vol. I, Page 29-30)

The pill bottle appeared to contain urine, and bore the Appellant’s girlfriend’s

name. (RR Vol. I, Page 30) However, upon cross examination, Boyd admitted

that he had not seen the Appellant enter the bathroom, (RR Vol. I, Page 33), did

not know what exactly was in the pill bottle (RR Vol. I, Page 35), and did not have

any idea as to how the pill bottle got into the bathroom (RR Vol. I, Page 33).

Investigator Cindy Black of the Harrison County Sheriff’s

Page -8- Department testified that she was sent by her chief to the third floor of the

Harrison County Court House to arrest Appellant for a probation violation (RR

Vol. I, Page 50). Mr. Boyd identified her as Investigator Black to Appellant, and

advised him that she was there to arrest him for violation of his probation (RR

Vol. I, Page 51). As she tried to put handcuffs on Appellant, he threw his arm

back and took off running (RR Vol. I, Page 52). She and probation officer Cruz

Vances chased Appellant, but Appellant was able to escape. (RR Vol. I, Page 53)

A video of the event was introduced into evidence over Appellant’s objection that

Appellant ‘s lawyer had only had one chance to view the video, Appellant had

never been given a chance to see the video. (RR Vol. I, Page 55) (State’s Exhibit

#3)

Community Supervision Officer Cruz Vances testified that the community

supervision log (State’s Exhibit 2) that Appellant had provided to Stan Boyd had a

signature of his that had been forged. The log also appeared to indicate that

Appellant had worked eight hours and four hours on the same date (RR Vol. I,

Page 58).

The State called Investigator Forrest Mitchell to testify, but after a few

questions abandoned the allegation that Appellant had falsified a governmental

record. (RR Vol. I, Page 71).

Page -9- After argument from both parties, the Court found that the Appellant had

violated the terms of his probation by evading arrest from Inv. Cindy Dowler, by

intentionally or knowingly possessing (with intent to use) urine designed to falsify

a drug test, and by failing to perform his community service (RR Vol. I, Page 81).

The Court revoked the Appellant’s probation and imposed the original sentence

of eighteen months (RR Vol. I, Page 87)

ARGUABLE POINT NUMBER ONE

Was the evidence sufficient to sustain a finding that the Appellant’s

SUMMARY OF ARGUMENT

Although the State abandoned its allegation concerning tampering with a

governmental record, and arguably did not meet its burden to prove Texas

Government Code § 481.133 Falsification of Drug Test Results, the record is

amply supported with regard to the Appellant’s other violations. Since proof of a

single violation is sufficient to support revocation, the Court did not abuse its

discretion in revoking the Appellant’s probation.

Page -10- ARGUMENT

The State has the burden of showing by a preponderance of the evidence

that the defendant committed a violation of the conditions of his community

supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993). If the

State fails to meet its burden of proof, the trial court abuses its discretion in

revoking the community supervision. Cardona v. State, 665 S.W.2d 492, 493–94

(Tex.Crim.App.1984). The trial court is the sole judge of the credibility of the

witnesses and the weight given to their testimony, and an appellate court must

review the evidence in the light most favorable to the trial court's ruling. Garrett v.

State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981). Proof of one

violation of the terms of community supervision is sufficient to support

revocation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App.1980).

The state abandoned its first allegation - that the Appellant had tampered

with a governmental record - his community service log. (RR Vol. I, Page 71)

and (CR Vol. I, Page 68). Additionally, the State’s evidence concerning

falsification of a drug test was circumstantial and weak. Probation officer Stan

Boyd admitted that he had not seen the Appellant enter the bathroom where the

pill bottle was found. (RR Vol. I, Page 33) Additionally, no examination or test

was ever done on the substance within the pill bottle, and Boyd did not know what

Page -11- exactly was in the pill bottle (RR Vol. I, Page 35). Officer Boyd did not have any

idea as to how the pill bottle got into the bathroom (RR Vol. I, Page 33), and there

was no testimony in the record that Appellant had ever possessed the pill bottle at

any time.

However, the uncontradicted testimony at the revocation hearing was that

Appellant briefly evaded arrest by Inv. Cindy Black. Officer Boyd testified to the

fact. (RR Vol. I, Page 29) Investigator Black testified to the fact (RR Vol. I,

Page 51-55). A video of the event was introduced for the Court to view. (State’s

Exhibit #3).

Likewise, the uncontradicted testimony appeared to be that Appellant had

failed to do community service as directed. According to Mr. Boyd, the Appellant

would report, but would fail to perform community service hours (RR Vol. I, Page

19). Mr. Boyd admonished Appellant for failing to perform (RR Vol. I, Page 20),

but Appellant failed to do his community service for the weeks of May 16, 23, and

30, 2014. (RR Vol. I, Page 20) Appellant kept trying to make payment or a

donation for community service hours even though the policy of the Community

Supervisions Office was not to allow a donation until the first half of the

community service hours required by the Court had been completed (RR Vol. I,

Page 20-22).

Page -12- Since proof of one violation of the terms of community supervision is

sufficient to support revocation, the Court did not abuse its discretion. Sanchez at

871. The evidence concerning evading arrest and the failure to perform

community service was uncontradicted in any meaningful way.

ARGUABLE POINT NUMBER TWO

Was the Appellant’s sentence disproportionate punishment for the

Appellant’s offense so as to amount to cruel and unusual punishment under the

Eighth Amendment to the United States Constitution?

This issue of whether the sentence was disproportionate in this case was not

preserved. Even if the issue had been preserved, the Appellant’s sentence was

within the range of punishment, and the record in Appellant’s case did not contain

information on the sentences imposed on other criminals in the same jurisdiction

and sentences imposed for commission of the same crime in other jurisdictions for

this Court to make a determination about disproportionality.

Page -13- ARGUMENT

Texas courts have traditionally held that as long as the punishment is within

the range prescribed by the Legislature in a valid statute, the punishment is not

excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex.

Crim. App. 1973). However, in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.

--Texarkana 1999, no pet.), this Honorable Court recognized that a prohibition

against grossly disproportionate punishment survives under the Eighth

Amendment apart from any consideration of whether the punishment assessed is

within the range established by the Legislature. See also Latham v. State, 20

S.W.3d 63, 68-9 (Tex. App. -- Texarkana 2000, pet. ref'd).

This Court's proportionality analysis under the Eighth Amendment is guided

by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences

imposed on other criminals in the same jurisdiction; and (3) the sentences

imposed for commission of the same crime in other jurisdictions. Solem v. Helm,

463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637, 650 (1983). Only if the

sentence is grossly disproportionate to the offense should the Court consider the

remaining factors of the Solem test and compare the sentence received to

sentences for similar crimes in the same jurisdiction and to sentences for the same

crime in other jurisdictions. Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App. --

Page -14- Texarkana 1995, pet. ref'd).

In this case, no objection was made to the sentence at the time that it was

pronounced. (RR Vol. I, Page 81-82), and therefore nothing was preserved for

review. T.R.A.P. 33.1(a)(1)(A). See also Jackson v. State, 989 S.W.2d 842, 845

(Tex.App.–Texarkana 1999, no pet.).

However, had the issue been preserved, it would not prevail. Assuming that

this Court went beyond Solem’s initial question, no information was provided for

comparison to Appellant’s sentence in the record, and as such there does not

appear to be enough information for the Court to conduct a proportionality

analysis. See Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no

pet.) and Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd).

PRAYER

WHEREFORE, PREMISES CONSIDERED, the undersigned respectfully requests that the Court review the foregoing analysis, and grant the motion to withdraw.

Page -15- RESPECTFULLY SUBMITTED,

SCOTT RECTENWALD 110 W. Fannin Marshall, Texas 75670 (903) 938-3300 (903) 938-3310- FAX

/s/ Scott Rectenwald Scott Rectenwald SBOT # 00794510

Certificate of Service

The undersigned hereby certifies that a true and correct copy of the

foregoing Brief was hand delivered to the office of the Harrison County District

Attorney on March 24, 2015.

/s/ Scott Rectenwald

Page -16- Certificate of Word Count

The undersigned hereby certifies that the word count for this document is

2778.

Page -17-