ACCEPTED 02-15-00032-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 5/5/2015 3:00:03 PM DEBRA SPISAK CLERK
NO. 02-15-00032-CR FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS IN THE COURT OF APPEALS 5/5/2015 3:00:03 PM FOR THE SECOND DISTRICT OF TEXAS DEBRA SPISAK Clerk FORT WORTH, TEXAS
ROBERT GONZALES V.
THE STATE OF TEXAS
APPEALING THE TRIAL COURT'S JUDGMENT IN CAUSE NUMBER 1351979D FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY, TEXAS HON. GEORGE GALLAGHER, PRESIDING JUDGE
APPELLANT'S BRIEF
RICHARD A. HENDERSON RICHARD A. HENDERSON, P.C. 100 THROCKMORTON STREET, SUITE 540 FORT WORTH, TEXAS 76102 (817) 332-9602 (817) 335-3940fax State Bar No. 09427100 richard(Jjahenderson.com ATTORNEY FOR APPELLANT
Oral Argument Requested TABLE OF CONTENTS Tableof Contents .......................................................................................................i List of Interested Parties............................................................................................ii Indexof Authorities..................................................................................................iii IssuesPresented ........................................................................................................ i'i Issue for Review No. 1: THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE ............................................. iv Statementof the Case ................................................................................................ 1 Summary of the Facts of the Case.............................................................................2 Summaryof Argument .............................................................................................. 2 Argumentsand Authorities .......................................................................................3 Issue for Review No. 1: (Restated) THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE...............................................3 Prayer......................................................................................................................... '1 Certificateof Compliance ......................................................................................... 5 Certificateof Service ................................................................................................. 6 LIST OF INTERESTED PARTIES
Robert Gonzales TDCJ 1978388 Formby Unit 998 CR AA Plainview, Texas 79072 Appellant
Ms. Debra Windsor, Assistant Criminal District Attorney Post-Conviction Jim Hudson Tracey Kapsidelis Assistant Criminal District Attorneys District Attorney's Office 401 West Belknap Fort Worth, Texas 76196-0201 Sharen Wilson, Criminal District Attorney Tarrant County, Texas Attorneys for the State
Abe Factor 6211 Airport Freeway Fort Worth, Texas 76117 Trial Attorney
Richard A. Henderson Richard A.Henderson, P.C. 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 Attorney for Appellant
11 INDEX OF AUTHORITIES
CASES:
Acosta v. State, 160 S.W.3d 204; (Tex App—Ft. Worth 2005-no pet.) ....................4
Calhoun v. State, 214 S.W.335 (Tex. Crim. App. 1919)..........................................4
Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana 2005)...........................4
Harmelin v. Michigan, 501 U.S. 957 (1991).............................................................4
Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim. App. 1973).................................4 (5th McGruder v. Puckett, 954 F2d 316 Cir.) cert denied 506 U.S. 849 (1992).......................................................................4
Codes:
Texas Code of Criminal Procedure 42.12 3(g) (2) (b).............................................. 3
Constitutions: 8'b Amendment of the United States Constitution.....................................................4 Article1 Section 13 of the Texas Constitution ......................................................... 4 ISSUES PRESENTED
ISSUE FOR REVIEW NO. ONE THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE.
iv IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS FORT WORTH
ROBERT GONZALES, § APPELLANT § § V. § NO. 02-15-00032-CR § THE STATE OF TEXAS, § APPELLEE
APPEALED FROM CAUSE NUMBER 13519 79D FROM THE 396r DISTRICT COURT OF TARRANT COUNTY, TEXAS THE HONORABLE, GEORGE GALLAGHER, JUDGE PRESIDING
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
This is an appeal (CR 54-55) from an open plea of guilty to the trial court
(CR 38-46) for arson with intent to damage a habitation. (CR 49-51). A pre-
sentence investigation was ordered by the court. (CR 47-48). A punishment
hearing was held on January 26, 2015 (RR volume 2). The trial court sentenced
Appellant to eighteen (18) years in the Institutional Division of the Texas
Department of Criminal Justice with a deadly weapon finding, specifically, a
combustible or flammable liquid. (CR 49-51 RR2:100).
1 SUMMARY OF THE FACTS OF THE CASE On December 3, 2013 at approximately 6:15 a.m., Shane Bradshaw and
companion, Akita McGowan were asleep at their residence at 3437 Nies Street in
Fort Worth, Texas. Akita was awakened by hearing a banging on the Plexiglas
windows of the bedroom and by the head board of their bed being pushed from the
window from the outside. Akita then heard the spilling of a liquid and smelled
gasoline. As she was trying to awaken Shane, the bedroom became engulfed in
flames. They escaped uninjured but most of the house was burned severely and
most of their personal property was damaged or destroyed. Akita owned three
cats, two cats escaped and one died of smoke inhalation. (RR2: 41-51).
Appellant was observed fleeing the scene by surveillance camera from the
home. Police and fire department investigators searched the home of Appellant
who lived next door. Gasoline was discovered on his clothes. Appellant admitted
the offense and pleaded guilty to it. (CR- PSI 2-5).
SUMMARY OF ARGUMENT
It was an abuse of discretion and the punishment of eighteen (18) years on
the arson with intent to damage a habitation charge constitutes cruel and unusual
punishment inflicted on Appellant by the trial court.
2 ARGUMENTS AND AUTHORITIES
ISSUE FOR REVIEW NO. ONE (RESTATED)
THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TESAS DEPARTMENT OF CRIMINAL JUSTICE. A Pre-Sentence Investigation (PSI) was prepared. The PSI states
Appellant's age to be thirty-four (34). The sentence is also an aggravated sentence
meaning Appellant will have to serve half of the sentence, nine years, before he is
eligible for parole under Texas Code of Criminal Procedure 42.12 3(g) (2) (b).
An eighteen (18) year sentence for a person this young (age 34) is severe
and harsh punishment.
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ACCEPTED 02-15-00032-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 5/5/2015 3:00:03 PM DEBRA SPISAK CLERK
NO. 02-15-00032-CR FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS IN THE COURT OF APPEALS 5/5/2015 3:00:03 PM FOR THE SECOND DISTRICT OF TEXAS DEBRA SPISAK Clerk FORT WORTH, TEXAS
ROBERT GONZALES V.
THE STATE OF TEXAS
APPEALING THE TRIAL COURT'S JUDGMENT IN CAUSE NUMBER 1351979D FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY, TEXAS HON. GEORGE GALLAGHER, PRESIDING JUDGE
APPELLANT'S BRIEF
RICHARD A. HENDERSON RICHARD A. HENDERSON, P.C. 100 THROCKMORTON STREET, SUITE 540 FORT WORTH, TEXAS 76102 (817) 332-9602 (817) 335-3940fax State Bar No. 09427100 richard(Jjahenderson.com ATTORNEY FOR APPELLANT
Oral Argument Requested TABLE OF CONTENTS Tableof Contents .......................................................................................................i List of Interested Parties............................................................................................ii Indexof Authorities..................................................................................................iii IssuesPresented ........................................................................................................ i'i Issue for Review No. 1: THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE ............................................. iv Statementof the Case ................................................................................................ 1 Summary of the Facts of the Case.............................................................................2 Summaryof Argument .............................................................................................. 2 Argumentsand Authorities .......................................................................................3 Issue for Review No. 1: (Restated) THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE...............................................3 Prayer......................................................................................................................... '1 Certificateof Compliance ......................................................................................... 5 Certificateof Service ................................................................................................. 6 LIST OF INTERESTED PARTIES
Robert Gonzales TDCJ 1978388 Formby Unit 998 CR AA Plainview, Texas 79072 Appellant
Ms. Debra Windsor, Assistant Criminal District Attorney Post-Conviction Jim Hudson Tracey Kapsidelis Assistant Criminal District Attorneys District Attorney's Office 401 West Belknap Fort Worth, Texas 76196-0201 Sharen Wilson, Criminal District Attorney Tarrant County, Texas Attorneys for the State
Abe Factor 6211 Airport Freeway Fort Worth, Texas 76117 Trial Attorney
Richard A. Henderson Richard A.Henderson, P.C. 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 Attorney for Appellant
11 INDEX OF AUTHORITIES
CASES:
Acosta v. State, 160 S.W.3d 204; (Tex App—Ft. Worth 2005-no pet.) ....................4
Calhoun v. State, 214 S.W.335 (Tex. Crim. App. 1919)..........................................4
Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana 2005)...........................4
Harmelin v. Michigan, 501 U.S. 957 (1991).............................................................4
Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim. App. 1973).................................4 (5th McGruder v. Puckett, 954 F2d 316 Cir.) cert denied 506 U.S. 849 (1992).......................................................................4
Codes:
Texas Code of Criminal Procedure 42.12 3(g) (2) (b).............................................. 3
Constitutions: 8'b Amendment of the United States Constitution.....................................................4 Article1 Section 13 of the Texas Constitution ......................................................... 4 ISSUES PRESENTED
ISSUE FOR REVIEW NO. ONE THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE.
iv IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS FORT WORTH
ROBERT GONZALES, § APPELLANT § § V. § NO. 02-15-00032-CR § THE STATE OF TEXAS, § APPELLEE
APPEALED FROM CAUSE NUMBER 13519 79D FROM THE 396r DISTRICT COURT OF TARRANT COUNTY, TEXAS THE HONORABLE, GEORGE GALLAGHER, JUDGE PRESIDING
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
This is an appeal (CR 54-55) from an open plea of guilty to the trial court
(CR 38-46) for arson with intent to damage a habitation. (CR 49-51). A pre-
sentence investigation was ordered by the court. (CR 47-48). A punishment
hearing was held on January 26, 2015 (RR volume 2). The trial court sentenced
Appellant to eighteen (18) years in the Institutional Division of the Texas
Department of Criminal Justice with a deadly weapon finding, specifically, a
combustible or flammable liquid. (CR 49-51 RR2:100).
1 SUMMARY OF THE FACTS OF THE CASE On December 3, 2013 at approximately 6:15 a.m., Shane Bradshaw and
companion, Akita McGowan were asleep at their residence at 3437 Nies Street in
Fort Worth, Texas. Akita was awakened by hearing a banging on the Plexiglas
windows of the bedroom and by the head board of their bed being pushed from the
window from the outside. Akita then heard the spilling of a liquid and smelled
gasoline. As she was trying to awaken Shane, the bedroom became engulfed in
flames. They escaped uninjured but most of the house was burned severely and
most of their personal property was damaged or destroyed. Akita owned three
cats, two cats escaped and one died of smoke inhalation. (RR2: 41-51).
Appellant was observed fleeing the scene by surveillance camera from the
home. Police and fire department investigators searched the home of Appellant
who lived next door. Gasoline was discovered on his clothes. Appellant admitted
the offense and pleaded guilty to it. (CR- PSI 2-5).
SUMMARY OF ARGUMENT
It was an abuse of discretion and the punishment of eighteen (18) years on
the arson with intent to damage a habitation charge constitutes cruel and unusual
punishment inflicted on Appellant by the trial court.
2 ARGUMENTS AND AUTHORITIES
ISSUE FOR REVIEW NO. ONE (RESTATED)
THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TESAS DEPARTMENT OF CRIMINAL JUSTICE. A Pre-Sentence Investigation (PSI) was prepared. The PSI states
Appellant's age to be thirty-four (34). The sentence is also an aggravated sentence
meaning Appellant will have to serve half of the sentence, nine years, before he is
eligible for parole under Texas Code of Criminal Procedure 42.12 3(g) (2) (b).
An eighteen (18) year sentence for a person this young (age 34) is severe
and harsh punishment. Appellant believes it is cruel and unusual and
disproportionate even if the punishment is within the punishment range allowed by
law.
Appellant presented evidence from his family in which it was shown he
accepts responsibility for his crime (RR2: 73-75).
Raymond Escobar Jr. testified that both Appellant and Appellant's father
work for Escobar's company and that Appellant is a diligent and good worker who
can work on jobs without supervision. (RR2: 83-85).
3 Appellant believes his punishment of eighteen (18) years is cruel and
unusual and disproportionate and violates both the 8th Amendment of the United
States Constitution and Article 1 Section 13 of the Texas Constitution, Calhoun v.
State, 214 S.W.335 (Tex. Crim. App. 1919); Jordan v. State, 495 S.W.2d 949, 952
(Tex.Crim. App. 1973); Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana
2005); Acosta v. State, 160 S.W.3d 204; (Tex App—Ft. Worth 2005-no pet.);
McGruder v. Puckett, 954 F2d 316 (5th dr.) cert denied 506 U.S. 849 (1992) and
Harmelin v. Michigan, 501 U.S. 957 (1991).
After this court reviews the record and the PSI, Appellant believes that this
court will reverse the trial court and order a new punishment hearing in which a
proportionate and reasonable sentence will be assessed.
PRAYER
Appellant respectfully requests that the court reverse the trial court and order
a new punishment hearing. Appellant also prays for all such additional or future
relief to which he may be entitled to in law or in equity.
4 Respectfully Submitted,
RICHARD A. HENDERSON, P.C. Two City Place 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 Telephone: (817) 332-9602 Telecopier: (817) 335-3940 richard(rahenderson. coml
reza(yjtt~ RThHARD A. HENDE SON State Bar No. 09427100 ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEx.R.APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,317 words,
excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the
word-count feature of Microsoft Office Word 2010, the computer soft7vare used to
prepare the document.
A. Henderson
5 CERTIFICATE OF SERVICE
A true copy of the Appellant's Brief has been electronically served on
opposing counsel, Ms. Debra Windsor, Assistant Criminal District Attorney, Post-
Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street,
Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr. Robert
Gonzales, TDCJ #1978388, Formby Unit, 998 CR AA, Plainview, Texas 79072
on this the of May, 2015.
Kicflarcl A. 1-lencierson
. N