ACCEPTED 14-14-00585-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 2/6/2015 10:13:43 PM CHRISTOPHER PRINE CLERK No. 14-14-00585-CR No. 14-14-00586-CR No. 14-14-00587-CR FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOURTEENTH DISTRICT 2/6/2015 10:13:43 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk
RYAN VICTOR MOLNOSKEY, Appellant
Vs.
THE STATE OF TEXAS, Appellee
ON APPEAL FROM CAUSE NO. 66494, 66495, 71937 149th JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS HONORABLE TERRI HOLDER JUDGE PRESIDING
BRIEF FOR THE APPELLANT
Joseph Kyle Verret THE LAW OFFICE OF KYLE VERRET, PLLC Counsel for Appellant TBN: 240429432 11200 Broadway, Suite 2743 Pearland, Texas 77584 Phone: 281-764-7071 Fax: 281-764-7071 Email: kyle@verretlaw.com
ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED DATE: February 6, 2015 No. 14-14-00585-CR No. 14-14-00586-CR No. 14-14-00587-CR
IN THE COURT OF APPEALS FOURTEENTH DISTRICT HOUSTON, TEXAS
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
RYAN VICTOR MONOSKEY, the Defendant in Cause 66494, 66495, and 71937 in
the 149th JUDICIAL DISTRICT COURT, Brazoria County, Texas, respectfully
submits this brief, and would respectfully show the Court the following:
i TABLE OF CONTENTS
Parties to the Case…………………………………………………………………..…iv
List of Authorities………………………………………………………………………v
Statement of the Case……………………………………………………………….....vi
Statement Regarding Oral Argument………………………………………………....vii
Issues Presented……………………………………………………………………...viii
Summary of the Argument……………………………………………………….…….1
Appellant’s First Point of Error…………………………………………………….…..2
The evidence is insufficient to support the trial court’s order in Cause 66494
that Appellant reimburse Brazoria County Collections Department for the payment of
counsel appointed on account of Appellant’s indigence.
Appellant’s Second Point of Error…………………………………………….….……8
There is no basis in the record to support the trial court’s order in Cause 71937
that Appellant pay $294 in court costs in that cause.
Appellants Third Point of Error……………………………………………...….….…10
If this court finds that the cost bill for the companion cause is a sufficient basis
to support the courts costs in Cause 71937, there is no basis in the record to support a
$70.00 Warrant/Bond fee in Cause 71937.
Appellants Fourth Point of Error.……………………………………………..………12
The forty-year prison sentence imposed by the trial court in Cause 71937
violated the Eighth Amendment prohibition against cruel and unusual punishment, as
ii the sentence was grossly disproportionate to the crime.
Conclusion and Prayer…………………………………………………………....…..16
Certificate of Service…………………………………………….................................17
Certificate of Word Count…………………………………...………………..………17
Appendix……………………………………………………………………….……..18
Judgment (Cause 6694)
Affidavit of Indigence (Cause 71937, Dated November 5, 2013)
Notice of Appointment for Perry Stevens
Affidavit of Indigence (Cause 66495/ 66494 / 71937, Dated July 5, 2014)
iii PARTIES TO THE CASE
APPELLANT: RYAN VICTOR MOLNOSKEY Attorney for Appellant at Trial:
Name: Robert D. Miller SBN: 24049278 Address: 1346 Broadway Pearland, Texas 77581
Attorney for Appellant on Appeal: Name: Joseph Kyle Verret SBN: 24042932 Address: The Law Office of Kyle Verret, PLLC 1200 Broadway, Suite 2743 Pearland, Texas 77584 Phone: 281-764-7071 Fax: 281-764-7071 Email: kyle@verretlaw.com
APPELLEE: THE STATE OF TEXAS
Attorneys for the State at Trial:
Name: Brian J. Hrach SBN: 24050787 Address: Brazoria County Criminal District Attorney 111 East Locus Street, Suite 408A Angleton, Texas 77515
Attorney for the State on Appeal:
Name: Jeri Yenne SBN: 04240950 Name: David Bosserman SBN: 02679520 Address: Brazoria County Criminal District Attorney 111 East Locust Street, Suite 408A Angleton, Texas 77515 Phone: 979-864-1230 Fax: 979-864-1525
iv LIST OF AUTHORITIES
Constitutional Provisions
U.S. CONST. amend. VIII……………………………………………………………12
Statutes
Tex. Code Crim. Proc. Ann. Art. 26.04(Lexis current through 2013 3d C.S.)……….2,6
Tex. Code Crim. Proc. Ann. Art. 26.05(Lexis current through 2013 3d C.S.)……..2,3,6
Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(2) (Lexis current through 2013 3d
C.S.)………………………………………………………………………….9,10
Tex. Code Crim. Proc. Ann Art. 103.001 (Lexis current through 2013 3d C.S.)………7
Tex. Gov’t Code Ann. §508.145 (Lexis current through 2013 3d C.S.)……………...14
Appellate Court Decisions
Adams v. State, 431 S.W.3d 832, 834 (Tex. App. -- Houston [14th Dist.] 2014, no
pet.)……………………………………………………..……………………...7, 9
Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App. Houston [14th Dist.] 2002)….….13
Barrera v. State, 291 S.W.3d 515, 518 (Tex. App. -- Amarillo 2009, no pet.)…………6
Ewing v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003)…...11
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014)……………………...…..,7,8
Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2013)…………………2,4-6
Simmang v. State, No. 04-09-00563-CR at 7-10, 2010 Tex. App. LEXIS 4332 (Tex.
App. -- San Antonio June 9, 2010, pet. ref’d) (mem. op., not designated for
publication)……………………………………………………………………...14
v STATEMENT OF THE CASE
The Appellant was indicted for the offense of Assault Public Servant in Cause
66494 and Harassment of Public Servant in Cause 66495 by two separate indictments
on November 17, 2011. (C.R. 66494 at 5; C.R. 66495 at 5). Per a plea bargain
agreement, Appellant entered a plea of guilty to the charged offenses on April 16, 2012
and was ordered to serve a five-year term of deferred adjudication. (C.R. 66494 at 6-
7; C.R. 66495 at 6-7).
On December 6, 2013, the State filed a motion to adjudicate guilt in each cause
against Appellant alleging multiple violations of probation, including a new law
violation of injury to a child. (C.R. 66494 at 14-16; C.R. 66495 at 14-16). On
November 21, 2013, Appellant was also indicted in Cause 71937 for the first-degree
injury to a child allegation. (C.R. 71937 at 5).
Defendant entered a plea of guilty to the indictment and requested the trial court
to sentence him contemporaneously with the pending motions to adjudicate guilt. (2
R.R. at 4, 8). On June 27, 2014, Appellant entered a plea of true to all of the
allegations in the State’s motion to adjudicate guilt and proceeded to a hearing before
the trial judge without an agreed recommendation. (C.R. 66494 at 17-18; C.R. 66495
17-18; R.R. at 4-5).
In cause numbers 66494 and 66495, the trial court adjudicated Appellant guilty
of the charged offenses and sentenced Appellant to 10 years confinement in the Texas
Department of Criminal Justice. (C.R. 66494 at 17; C.R. 66495 at 22). In cause
vi 71937, the trial court sentenced Appellant to 40 years confinement in the Texas
Department of Criminal Justice. (C.R. 71937 at 30).
As these three causes were tried together on punishment, Appellant presents his
complaints on appeal in all three causes in this one brief.
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument.
vii ISSUES PRESENTED Appellant’s First Point of Error:
The evidence is insufficient to support the trial court’s order in Cause 66494 that
Appellant reimburse Brazoria County Collections Department for the payment of
Appellant’s Second Point of Error:
There is no basis in the record to support the trial court’s order in Cause 71937
Appellant’s Third Point of Error:
If this court finds that the cost bill for the companion cause is a sufficient basis
in the record to support the courts costs in Cause 71937, there is no basis to support a
Appellant’s Fourth Point of Error:
The forty-year prison sentence imposed by the trial court in Cause 71937
violated the Eighth Amendment prohibition against cruel and unusual punishment, as
the sentence was grossly disproportionate to the crime.
viii SUMMARY OF THE ARGUMENT
The evidence is legally insufficient to support the trial court’s order that
Appellant reimburse Brazoria County for the payment of Appellant’s court appointed
counsel. Appellant was indigent at the time his trial counsel was appointed and
remained indigent throughout the proceedings in this matter. As established by the
Appellant’s affidavit, Appellant had been unemployed for two years at the time of the
trial court’s order. He had neither income nor assets.
There is no basis in the record in Cause 71937 to support the trial court’s
imposition of $294.00 in court. If this court finds that there is a basis in the record for
the imposition of court costs in Cause 71937, there is no basis in the record for the
$70.00 Warrant / Bond fee in that cause.
The trial court’s forty-year prison sentence for first-degree injury to a child in
Cause 71937 was grossly disproportionate to the crime charged.
1 APPELLANT’S FIRST POINT OF ERROR
The evidence is insufficient to support the trial court’s order in Cause 66494
that Appellant reimburse Brazoria County Collections Department for the payment of
Standard of Review and Applicable Law
An appellate court reviewing an order to repay court appointed attorney’s fees
reviews the record to determine whether there is sufficient evidence to support the
order. Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2013). Evidentiary
sufficiency “is measured by viewing all of the record evidence in the light most
favorable to the verdict.” Id. at 557. Ordinarily, sufficiency of the evidence may be
raised for the first time on appeal, without an objection at the trial court level. Mayer,
309 S.W.3d at 556.
A trial court’s authority to order that defendant repays attorney’s fees as court
costs after a conviction stems from Tex. Code Crim. Proc. Ann. Art. 26.05(Lexis
current through 2013 3d C.S.). Once a defendant has been found to be indigent, the
defendant is “presumed to remain indigent for the remainder of the proceedings in the
case unless a material change in the defendant’s financial status occurs.” Tex. Code
Crim. Proc. Ann. Art. 26.04(p)(Lexis current through 2013 3d C.S.). The trial court
may only order that a defendant repay his court appointed attorney’s fees,
[i]f the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount 2 that it finds the defendant is able to pay. Tex. Code Crim. Proc. Ann. Art. 26.05(g)(Lexis current through 2013 3d C.S.).
Relevant Facts
Appellant was appointed trial counsel, Mr. Perry Stevens, on December 16,
2013. (Supp. C.R. 66494 at 5). According to the notice of appointment, Appellant
was in jail at the time of appointment. (Supp. C.R. 66494 at 5). Mr. Stevens withdrew
as counsel, and new trial counsel, Mr. Robert Miller, was appointed on January 17,
2014. (Supp C.R. 66494 at 12). After trial, the trial court ordered Appellant to repay
$2,850.00 in attorney’s fees in Cause 66494. (C.R. 66494 at 17).
There is no affidavit of indigence in the record in Cause 66494 that was
completed prior to the appointment of trial counsel. While there is no affidavit of
indigence in Cause 66494, there was one filed in Cause 71937. (Supp. C.R. 71937 at
19-23). The State’s motions to adjudicate guilt in Causes 66494 and 66495 were not
filed until after the initial appointment of Appellant’s trial counsel. Counsel was
appointed on November 5, 2013. (Supp. C.R. 71937 at 6). The motions to adjudicate
guilt were filed on November 21, 2013. (C.R. 66494 at 14-16; C.R. 66495 at 14-16).
Trial counsel was then appointed to the revocation cases as well. (Supp. C.R. 66494 at
5; Supp. C.R. 66495 at 4).
In this November 5 affidavit, Appellant stated that he was presently
incarcerated. (Supp. C.R. 71937 at 19). He had been unemployed for one month after
having on and off work at approximately $25 an hour for the previous eight months.
(Supp. C.R. 71937 at 20). He had no income. (Supp. C.R. 71937 at 21). His monthly 3 expenditures were $240 for childcare, $450 for school, $55 for probation fees, and $27
every other month for other probation costs. (Supp. C.R. 71937 at 20). He had no
property or other assets and lived with his in-laws. (Supp. C.R. 71937 at 21).
After being convicted, Appellant completed another affidavit of indigence.
(C.R. 66494 at 26-29). In the second affidavit, completed July 15, 2014, Appellant
stated that he had been unemployed for two years, since November 2013. (C.R. 66494
at 35). He was incarcerated in the county jail. (C.R. 66494 at 26). He had no income,
no assets, and no debt. (C.R. 66494 at 27-28). He stated on the affidavit that he lived
with his dad or Nadia Baldez, his girlfriend. The court found Appellant to be indigent
and appointed the Appellant counsel on appeal. (C.R. 66494 at 24-25, 37).
Analysis
There is no evidence supporting the trial court’s order that Appellant repay his
court appointed attorney’s fees. While in jail, Appellant was appointed trial counsel in
this cause, and the related causes. (Supp. C.R. 66494 at 5,12; Supp. C.R. 66495 at
4,11; Supp. C.R. 71937 at 6,11). After Appellant was convicted, the trial court ordered
that he repay attorney’s fees in the amount of $2,850.00. (C.R. 66494 at 17).
The facts related to the application for a court appointed attorney and the trial
court’s order to repay attorney’s fees are almost identical between Mayer v. State and
Appellant’s case. See Mayer, 309 S.W.3d 552. In Mayer, the defendant filed an
Affidavit of Financial Status including “a request for a court appointed attorney to
represent him because he did not have the financial ability to hire his own attorney.”
4 Mayer, 309 S.W.3d at 554. The affidavit stated that he was unemployed and
supporting himself on government benefits. Id. After he was convicted, the defendant
filed a pro se notice of appeal and an affidavit of financial status again requesting
appointed counsel. Id. There was no evidence in the record in Mayer that supported
the trial court’s order that the defendant repay the court appointed attorney’s fees. Id.
at 556.
Appellant was found to be indigent at the inception of this case and was
appointed a court appointed attorney to represent him at trial on the State’s motion to
adjudicate guilt. (Supp. C.R. 66494 at 5,12). Appellant stated in his initial affidavit of
indigence that he was unemployed and had no income. (Supp. C.R. 71937 at 20-21).
He had no property or other assets. (Supp. C.R. 71937 at 21).
After being convicted, Appellant completed another affidavit on July 15, 2014.
(C.R. 66494 at 26-29). In the second affidavit, the Appellant stated that he had been
unemployed for two years. (C.R. 66494 at 35). He was incarcerated in the county jail.
(C.R. 66494 at 26). By the time the trial court ordered that Appellant repay his
attorney’s fees, Appellant had been in jail for eight months waiting for the hearing on
this matter. (3 R.R. at 58, 84). He had no income, no assets, and no debt. (C.R.
66494 at 27-28). The court found the Appellant to be indigent and appointed the
Appellant counsel on appeal. (C.R. 66494 at 24-25, 37). As in Mayer, there is no
evidence in the record to support the trial court’s order that Appellant repay his court
appointed attorney’s fees.
5 Appellant was found to be indigent in November 2013, and is presumed to
remain indigent. Tex. Code Crim. Proc. Ann. Art. 26.04(p). The trial court may only
order a defendant to repay his court appointed attorney if “the court determines that a
defendant has financial resources that enable him to offset in part or in whole the costs
of the legal services provided.” Tex. Code Crim. Proc. Ann. Art. 26.05(g). A court’s
finding that a defendant has such financial resources that would enable him to offset
the cost of legal services provided must be supported by evidence in the record.
Barrera v. State, 291 S.W.3d 515, 518 (Tex. App. --Amarillo 2009, no pet.). There is
no evidence in the record to support a finding that the Appellant has “financial
resources that enable him to offset in part or in whole the costs of the legal services
provided.” As such, the evidence supporting the court’s order that Appellant repay his
is legally insufficient and has no basis in the record.
The court of appeals in Mayer reformed the trial court’s judgment to delete the
paragraph ordering the defendant to repay attorney’s fees. Mayer v. State, 274 S.W.3d
898, 901-02 (Tex. App. Amarillo 2008, pet. granted.). The Court of Criminal Appeals
found this to be the proper remedy. Mayer, 309 S.W.3d at 557.
The Appellants prays that this Court find that there is no evidence supporting
the trial court’s order that the Appellant repay his court appointed attorney fees and
reform the judgment to remove the order.
6 APPELLANT’S SECOND POINT OF ERROR
There is no basis in the record to support the trial court’s order in Cause 71937
A cost is not payable by the person charged with the cost until a written bill
is produced or is ready to be produced, containing the items of cost, signed
by the officer who charged the cost or the officer who is entitled to receive
payment for the cost.
Tex. Code Crim. Proc. Ann Art. 103.001 (Lexis current through 2013 3d C.S.).
An order to pay a certain amount of court costs must be supported by evidence
in the record that was before the trial judge. Adams v. State, 431 S.W.3d 832, 834
(Tex. App. -- Houston [14th Dist.] 2014, no pet.). citing Johnson v. State, 423 S.W.3d
385 (Tex. Crim. App. 2014). A reviewing court examines the record to determine
whether there is “a basis for the cost” to support the trial court’s order. Id. at 835.
The trial court conducted a consolidated punishment hearing on Causes 66494,
66495 and Cause 71937 on June 27, 2014. (3 R.R. at 4). The clerk’s record in 71937
does not contains a cost bill specific to that cause, but instead has a cost bill for Cause
66495. (Supp. C.R. 71937 at 43).
The trial court entered a written judgment, in each of the three causes, each
requiring Appellant to pay $294.00 in court cost. (C.R. 66494 at 17; C.R. 66495 at 22;
7 C.R. 71937 at 30). Additionally the trial court ordered that these court costs be drawn
against the Appellant’s inmate trust fund. (Supp. C.R. 71937 at 34).
Appellant’s counsel specifically requested that the record on appeal be
supplemented to include a bill of cost. (Supp. C.R. 71937 at 49).
At the time of writing of this brief, the there is no basis in the record to support
that trial court’s order that Appellant pay $294 in court costs in Cause 71937.
Appellant specifically requested that the record include a bill of cost. (Supp. C.R.
71937 at 49). The only bill of cost that is presently in the record in Cause 71937 is for
Cause 66495. (Supp. C.R. 71937 at 43).
Appellant recognizes that this Court may order the clerk to further supplement
the record with a correct cost bill. Johnson, 423 S.W.3d at 391. As the record stands,
at the time of this writing, there is no bill of cost related to Cause 71937 in the record.
As court costs are “not payable by the person charged with the cost until a written bill
is produced,” and no cost bill has been produced to the Appellant or this Court in
Cause 71937, this Court should find that the Appellant is not responsible for the
payment of court costs in Cause 71937. Appellant prays that this court reform the
judgment in Cause 71937 to remove the assessed court cost.
8 APPELLANT’S THIRD POINT OF ERROR
If this court finds that the cost bill for the companion cause is a sufficient basis
to support the courts costs in Cause 71937, there is no basis in the record to support a
An order to pay a certain amount of court costs must be supported by evidence
in the record that was before the trial judge. Adams v. State, 431 S.W.3d at 834. A
reviewing court examines the record to determine whether there is “a basis for the
cost” to support the trial court’s order. Id. at 835.
There is an allowable $50.00 fee for the execution or processing of “an issued
arrest warrant, capias, or capias pro fine.” Tex. Code Crim. Proc. Ann. Art. 102.011
(a)(2) (Lexis current through 2013 3d C.S.). Only a $5.00 fee is allowable where an
officer has made a warrantless arrest. Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(1).
The statute also allows for a $10.00 fee “for taking and approving a bond and, if
necessary, returning the bond to the courthouse.” Tex. Code Crim. Proc. Ann. Art.
102.011 (a)(5).
The bill of cost for Cause 66495 in the clerk’s record in Cause 71937 includes a
Warrant/Bond fee in the amount of $70.00. (Supp. C.R. 71937 at 43). Appellant was
arrested without a warrant in this cause. (Sealed C.R. 71937 at 33). He did not make
bail in this cause and was in jail from the date of his arrest until his hearing. (3 R.R. at
9 58, 84).
If this court finds that the cost bill for Cause 66495 is a sufficient basis to
support the courts order that court cost be paid in Cause 71937, there is still no basis
for an assessment of a $70.00 Warrant/ Bond fee in Cause 71937.
The cost bill in the record of Cause 71937, which is a cost bill for Cause 66495,
includes a Warrant/Bond fee in the amount of $70.00. (Supp. C.R. 71937 at 43). The
Code of Criminal Procedure allows for a $50.00 fee for the execution of an arrest
warrant, capias or capias pro fine. Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(2).
Only $5.00 fee is allowed by statute where a defendant is arrested without a warrant,
as was the case in Cause 71937. Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(1),
(Sealed C.R. 71937 at 33). Also, as Appellant did not bail out of jail in this matter no
fee for taking or approving a bond should have been assessed.
As Appellant was arrested without a warrant, and did not post bail, in Cause
71937, there is no basis in the record to support the imposition of a $70 Warrant / Bail
fee. Appellant prays that this Court reform the judgment of the trial court to remove
the $70 Warrant / Bail fee assessed as court cost in this cause.
10 APPELLANT’S FOURTH POINT OF ERROR
The forty-year prison sentence imposed by the trial court in Cause 71937
violated the Eighth Amendment prohibition against cruel and unusual punishment, as
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. CONST. amend. VIII
The Eighth Amendment prohibition against cruel and unusual punishment
includes “extreme sentences that are ‘grossly disproportionate’ to the crime.” Ewing v.
California, 538 U.S. 11, 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003).
Appellant was on deferred adjudication probation in cause number 66494 for
the offense of Assault Public Servant, and on deferred adjudication probation in cause
66495 for Harassment of a Public Servant. (C.R. 66494 at 6-7; C.R. 66495 at 6-7)
In October 2013, Appellant was living with his Nadia and their daughter in
Nadia’s mother’s home. (3 R.R. at 6-7). On October 29, 2013, Nadia drove Appellant
to a “bad neighborhood” in Houston where Appellant left the car, disappeared, and
purchased cocaine that he smoked on the way home. (3 R.R. at 20-21, 75-76).
When they returned home, Appellant assaulted Nadia. (3 R.R. at 9, 25-26). He
then ran into the home and grabbed G.M. and ran down the stairs with the child. He
tripped and fell down the stairs with the child. (3 R.R. at 11). Appellant said “She's
11 my daughter. She's not yours… If I can't have her, nobody can. She's mine.” (3 R.R.
at 12). He then lifted the child up over his head and threw her on the tile floor. (3
R.R. at 12-13).
G.M. appeared to stop breathing and would not wake up. (3 R.R. at 13). She
suffered skull fractures, internal bleeding, swelling and bruising. (3 R.R. at 40). She
stayed in the hospital for two days and then was required to take anti-seizure
medication. (3 R.R. at 40).
Appellant’s mother testified that Appellant suffers from hyperactivity, attention
deficit disorder, and is bipolar. (3 R.R. at 43). She believed Appellant also struggled
with depression. (3 R.R. at 45).
Appellant’s father testified that Appellant might have been using drugs since he
was sixteen. (3 R.R. at 54). He testified that, for a while, Appellant worked with him
doing plumbing work. (3 R.R. at 57). Appellant’s father testified that there were
times through Appellant’s life where Appellant would go from seeming fine to not
being himself. (3 R.R. at 55, 57).
Appellant is a substance abuser. Appellant testified that he used marijuana, once
or twice a day, when he was in high school. (3 R.R. at 68, 70-71). In high school he
also had a Xanax prescription which he abused. (3 R.R. at 71-73). He continued to be
prescribed Xanax until his arrest in 2013. (3 R.R. at 73). He also started smoking
crack cocaine after high school. (3 R.R. at 76).
On October 28, 2013, Appellant had his 90 pill Xanax prescription filled. (3
12 R.R. at 73). By the end of the day, he had used almost all of them. (3 R.R. at 74). He
testified that he had Nadia drive him to Houston that night to purchase crack cocaine.
(3 R.R. at 75-76). Appellant did not remember most of what happened when he threw
and injured G.M. (3 R.R. at 80).
Appellant has struggled with suicidal thoughts since he was in junior high. (3
R.R. at 102). He believes that his drug abuse a source of his criminal behavior. (3
R.R. at 81-82). The eight months he spent in jail waiting on his hearing was the
longest he had been sober since high school. (3 R.R. at 84). He testified that he
recognizes he has a problem and wants help. (3 R.R. at 83).
A motion for new trial was filed and presented to the trial court on the basis that
the punishment assessed against Appellant in Cause 71937 was grossly
disproportionate to the offense. (C.R. 71937 at 42; 4 R.R. at 4).
Appellant’s punishment was grossly disproportionate the crime for which he
was convicted and a violation of his Eighth Amendment right against cruel and
unusual punishment.
Appellant recognizes that an analysis used by a number of courts to determine
whether a sentence is grossly disproportionate to the offense requires the reviewing
court to “consider (1) sentences for similar crimes in the same jurisdiction and (2)
sentences for the same crime in other jurisdictions.” Baldridge v. State, 77 S.W.3d
890, 893 (Tex. App. -- Houston [14th Dist.] 2002). Appellant recognizes that the
13 record is void of any evidence regarding similar crimes in the same jurisdiction or
sentences from the same crime in other jurisdictions. Appellant also recognizes that at
least one intermediate Texas court of appeals has specifically found that a forty year
penitentiary sentence for first degree injury to a child is not violative of the Eighth
Amendment. Simmang v. State, No. 04-09-00563-CR at 7-10, 2010 Tex. App. LEXIS
4332 (Tex. App. -- San Antonio June 9, 2010, pet. ref’d) (mem. op., not designated for
publication).
In Appellant’s case, the forty-year sentence is grossly disproportionate to the
crime. The trial court specifically cited a desire to protect G.M. from Appellant:
I don't doubt one second that you love her. What I do doubt is that you don't have the skills to be a good father for her at this point in time in your life. There's more to being a father than enjoying the fun parts and playing with them. There's a whole lot more to it, and a lot of that means you have to adjust your lifestyle to raise them the right way. And until you can do that, you don't need to be in her life, especially if your lifestyle will hurt her. (3 R.R. at 109).
[At] this point my job, I think, is very much to protect her. (3 R.R. at 110).
Also, in the court’s presentence investigation, the child’s mother indicated that
she believed Appellant should serve some prison time, but that as the father of G.M.,
twenty years would be too long for him to be in prison. (Sealed C.R. 71937 at 16-17).
The trial court’s decision to punish Appellant for forty years in order to keep
him away from G.M. is cruel and unusual. Appellant’s conviction for injury to a child
is an offense for which he will not become eligible for parole consideration until he
has served at least twenty years in prison. Tex. Gov’t Code Ann. §508.145 (Lexis 14 current through 2013 3d C.S.). By the time Appellant is eligible to be considered for
parole, his daughter will be twenty-four years old.
A lesser sentence, considering the parole board’s discretion in determining
whether an offender has been rehabilitated would have served the court’s purpose of
protecting G.M. from Appellant until he was rehabilitated but would have still allowed
Appellant’s participation in G.M.’s life if he had adjusted his lifestyle appropriately.
Appellant prays that this Court find that the forty-year prison sentence imposed
against Appellant violated the Eighth Amendment and remand this matter to the trial
court for a new hearing on punishment.
CONCLUSION AND PRAYER
Wherefore, Appellant prays that this Court find that Appellant is indigent and
was indigent when trial counsel was appointed to represent him and reform the
judgment of the trial court to remove the order in Cause 66494 that Appellant repay
Brazoria County for attorney’s fees for counsel appointed to Appellant.
Appellant also prays that this Court find that there is no basis in the record to
support the court cost assessed in Cause 71937 and reform the judgment in Cause
71937 to remove the assessed court costs.
Appellant further prays that this court find that his forty-years sentence is cruel
and unusual punishment and remand this matter to the trial court for a new hearing on
punishment.
15 Respectfully submitted,
/s/ Joseph Kyle Verret Joseph Kyle Verret THE LAW OFFICE OF KYLE VERRET, PLLC Counsel for Appellant TBN: 240429432 47 11200 Broadway, Suite 2743 Pearland, Texas 77584 Phone: 281-764-7071 Fax: 281-764-7071 Email: kyle@verretlaw.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief for Appellant was
served on the Counsel for the Appellee, David Bosserman, at the Criminal District
Attorney’s Office of Brazoria County, Texas, by service through electronic filing on
this 6th day of February, 2015.
/s/Joseph Kyle Verret Joseph Kyle Verret TBN: 2402932
CERTIFICATE OF WORD COUNT
I do hereby certify that the total word count for this document 3,814 excluding
those parts specifically excluded in Texas Rule of Appellate Procedure 9.4(i)(1) which
is less than 15,000 words allowed per Texas Rule of Appellate Procedure 9.4.
/s/Joseph Kyle Verret Joseph Kyle Verret TBN: 2402932 16 APPENDIX
17 000017 000018 000019 000020 000021 000022 000023 000006 000005 TEXAS FAIR DEFENSE ACT ROTATIONAL APPOINTMENT SYSTEM - -l0 r;, FOR BRAZORIA COUNTY, TEXAS tJ j)\ \ LP-\ 0 \0 ct lbenise Damian, Court Administrator Iris Huerta, Indigent Defense Coordinator 111 E. Locust, Room 309 111 E. Locust, Room 309 Angleton, TX 77515 Angleton, TX 77515 979-864-1263 Phone 979-864-1683 Phone r.'\ 979-864-1893 Fax 979-864-1893 Fax \td denised@brazoria-county.com irish@brazoria-county.com .,,'" NOTICE OF APPOINTMENT AND CONFIRMATION f C;; rdlJi)2\}' DATE ATTORNEY APPOINTED: 12/16/13 == ATTORNEY INFORMATION: v > ::. Name: STEVENS, PERRY Phone: (979) 848-1111
Address: 603 E MULBERRY Fax: (979) 849-9398 ANGLETON, TX 77515-0000
In accordance with the Local Rules of Administration implementing the Texas Fair Defense Act for Brazoria County, Texas ("BCTFDA"), the defendant has been appointed the attorney named above.
The appointed attorney is required to provide the Court with written confirmation that the attorney made reasonable efforts to contact the defendant by the end of the first working day after the date of the appointment and that the attorney personally interviewed the defendant no later than fifteen (I5) days after Notice of Appointment. The confirmation must be filed with the Verification Officer no later than three (3) days before my first court appearance for this case. If you have any questions, you may contact the Court Administrator or the Verification Officer.
HEARING INFORMATION
MTNTO ADJUDICATE GUILT
DEFENDANT INFORMATION' . Name: MOLNOSKEY, RYAN VICTOR Cause No: 66495 Address: PEARLAND, TX 77581-4495 Court: 149TH DISTRICT COURT Phone: Case Information: MOTION TO ADJUDICATE GUILT; F3 Defendant is in iail: YES Refiled: TRUE Docket Control Order Attached: NO
ACKNOWLEDGMENT:
o I made reasonable efforts to contact defendant before the end of the first business day. o I interviewed the defendant no later than fifteen (15) days after date of my appointment.
Attorney Signature Date
000004 000026 000027 000028 000029 000030