Robert Gonzales v. State

Opinion

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

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).

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.

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).

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.

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

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

.

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