ACCEPTED 01-15-00612-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 10/27/2015 7:01:07 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00612-CR
IN THE FIRST COURT OF APPEALS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 10/27/2015 7:01:07 PM CHRISTOPHER A. PRINE Clerk STUART ADAM LATHAM,
Appellant,
V.
STATE OF TEXAS,
Appellee.
APPEAL FROM THE 180TH DISTRICT COURT, HARRIS COUNTY, TEXAS TRIAL COURT CAUSE NO. 1356904
APPELLANT’S BRIEF
THE CLOUD LAW FIRM P.C. Carvana Cloud Texas Bar No. 24048544 850 W. Little York Rd. Ste. B Houston, Texas 77091 Telephone: 832-230-4210 Fax: 832-230-4684 Email: carvana@cloudlawfirm.net
Counsel for Appellant IDENTITY OF PARTIES AND COUNSEL
Appellant
Stuart Adam Latham
Counsel for Appellant
Carvana Cloud THE CLOUD LAW FIRM 850 W. Little York, Suite B Houston, TX 77091
Appellee
The State of Texas
Counsel for Appellee
Alan Curry Harris County District Attorney’s Office 1201 Franklin Ste. 600 Houston, TX 77002-1923
Trial Counsel for Appellant
Joseph S. Owmby 708 Main Street, Suite 790 Houston, Texas 77002
Trial Counsel for the State
Ryan Trask Assistant District Attorney Harris County District’s Attorney’s Office 1201 Franklin, Suite 400 Houston, Texas 77002
i
TABLE OF CONTENTS
Identity of Parties and Counsel ............................................................................... i
Index of Authorities ............................................................................................. iii
Statement of the Case ............................................................................................. 1
Waiver of Oral Argument ....................................................................................... 1
Statement of Jurisdiction ........................................................................................ 1
Issues Presented ...................................................................................................... 1
I. THE TRIAL COURT ERRED WHEN IT ADJUDICATED THE APPELLANT BECAUSE THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S ADJUDICATION BECAUSE THE STATE’S PRIMARY WITNESS LACKED CREDIBILITY AND HER TESTIMONY WAS UNCORROBORATED.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING APPELLANT TO FIVE YEARS CONFINEMENT IN THE TEXAS DEPARTMENT OF CORECTIONS AS SUCH SENTENCE AMOUNTS TO “CRUEL AND UNUSUAL PUNISHMENT” GIVEN THE FACTS OF THIS CASE.
Statement of Facts .................................................................................................. 2
Summary of the Argument ..................................................................................... 4
Argument ................................................................................................................ 5
I. THE TRIAL COURT ERRED WHEN IT ADJUDICATED THE APPELLANT BECAUSE THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S ADJUDICATION BECAUSE THE STATE’S PRIMARY WITNESS LACKED CREDIBILITY AND HER TESTIMONY WAS UNCORROBORATED……………………………………………………..7
ii
II. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING APPELLANT TO FIVE YEARS CONFINEMENT IN THE TEXAS DEPARTMENT OF CORECTIONS AS SUCH SENTENCE AMOUNTS TO “CRUEL AND UNUSUAL PUNISHMENT” GIVEN THE FACTS OF THIS CASE .................................................................................................. 11
Conclusion and Prayer ............................................................................................ 13
INDEX OF AUTHORITIES
Cases Amado v. State, 983 S.W.2d 330, 332 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd). ....................................................................................................................... 7 Anderson v. State, 621 S.W.2d 805 (Tex.Cr.App. 1981). ...................................... 6 Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). ........................ 6 Greathouse v. State, 33 S.W.3d 455, 458 (Tex. App.—Houston [1st Dist.] 2000, pet ref'd). ................................................................................................................. 6 Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980). ........................... 6-7 Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006). .......................... 6-7 Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417 (1962). ................................ 11 Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). ....................... 6 Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed2d 637 (1983).11 Swinney v. State, 828 S.W.2d 254, 259 (Tex. App. - Houston [1st. Dist.] 1992). . 11 Walkovak v. State, 576 S.W. 2d 643 (Tex.Cr.App. 1979). .................................... 6
Statutes TEX. PENAL CODE ANN. § 22.01 (Vernon 2015). ................................................... 1
Rules TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon 2015) ............................ 5 TEX. R. APP. PROC. 39.7 ......................................................................................... 1
Constitutional Provisions TEX. CONST. art. I, § 13 .......................................................................................... 11 U.S. CONST. amend. VIII ........................................................................................ 11 U.S. CONST. amend. XIV ........................................................................................ 11
iii
STATEMENT OF THE CASE
Pursuant to Texas Penal Code § 22.01, Appellant was indicted for the
offense of Assault of a Family Member. (1 C.R. 16). Appellant entered a plea of
guilty on December 10, 2012. (1 C.R. 20-21). Appellant was placed on Deferred
Adjudication for a period of two years community supervision with a fine of five
hundred dollars. (1 C.R. 26). On December 2, 2014, the State filed a Motion to
Adjudicate Appellant’s guilt alleging that he had violated the terms of his
community supervision when he committed an offense against the laws of the State
of Texas. (1 C.R. 33-34). Appellant entered a plea of “not true.” (1 C.R. 41). On
June 26, 2015 the Court held a hearing on the Motion to Adjudicate Guilt and
Appellant was found guilty of Assault of a Family Member – Second Offender.
Appellant was sentenced to five years confinement in the Texas Department of
Corrections (“TDC”). (1 C.R. 41).
WAIVER OF ORAL ARGUMENT
Pursuant to Tex. R. App. Proc. 39.7, Appellant waives oral argument.
STATEMENT OF JURISDICTION
The judgment of the Harris County 180th District Court was entered on June
26, 2015. Appellant filed a timely Notice of Appeal on June 26, 2015. This Court
has requested briefs on the merits.
ISSUES PRESENTED
I. THE TRIAL COURT ABUSED ITS DISCRETION BY ADJUDICATING APPELLANT BECAUSE THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S ADJUDICATION BECAUSE THE STATE’S PRIMARY WITNESS LACKED CREDIBILITY AND HER TESTIMONY WAS UNCORROBORATED.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING APPELLANT TO FIVE YEARS CONFINEMENT IN THE TEXAS DEPARTMENT OF CORECTIONS AS SUCH SENTENCE AMOUNTS TO “CRUEL AND UNUSUAL PUNISHMENT” GIVEN THE FACTS OF THIS CASE.
STATEMENT OF FACTS
Stuart Latham, Appellant, was indicted for Assault of a Family Member -
Second Offender on October 26, 2012. (1 C.R. 16). On December 10, 2012,
Appellant pleaded guilty to Assault of a Family Member – Second Offender as
alleged in the indictment. (1 C.R. 20-21). The Court placed Appellant on deferred
adjudication for two years, ending December 9, 2014 and assessed a fine of five
hundred dollars. (1 C.R. 26). On December 2, 2014, the State filed a Motion to
Adjudicate Appellant’s guilt alleging that Appellant violated the terms and
conditions of the Community Supervision by: (1) Committing an offense against
the State of Texas. (1 C.R. 33-34). The Motion alleged that on or about November
8, 2014, in Harris County, Texas, the Appellant did then and there unlawfully,
intentionally, and knowingly cause bodily injury to Jessica Wingerter, a person
with whom the appellant had a dating relationship. (1 C.R. 33-34).
On June 26, 2015, the Appellant pleaded “not true” to the allegations at the
hearing on the motion to adjudicate. (1 R.R. 91). At the hearing, the State’s
primary witness was the complainant, Jessica Wingerter. (1 R.R. 12). During Ms.
Wingerter’s testimony, she testified that she had been in a dating relationship with
Appellant for “four, five years” but they had broken up. (1 R.R. 16). Ms.
Wingerter alleged that on November 8, 2014 Appellant went to her home and put
his arm around her neck, which prevented her from breathing for a few seconds. (1
R.R. 18). The witness testified that she did not call the police until November 11,
2014, three days later, to report this incident. (1 R.R. 22).
Ms. Wingerter testified that she was unable to recall parts of the incident
because at the time of the hearing it had been seven months since the alleged
incident. (1 R.R. 15). She testified she could not recall whether her cousin, Corina
Ventura, was present at her home when the incident occurred. (1 R.R. 15). She
testified that she could not remember if Ms. Ventura was present when she was
interviewed by the Harris County Constable’s Office. (1 R.R. 21). She could
recall, however, that Ms. Ventura was interviewed by the Harris County
Constable’s Office but she could not recall how she was interviewed. (1 R.R. 22).
Appellant took the stand and testified on his behalf. His testimony was that
on November 8, 2014, he and Ms. Wingerter were involved in an argument but
denied ever placing his forearm or his hands around her neck or choking her. (1
R.R. 72, 74). Appellant also stated that he voluntarily went to their shared home in
Tomball only after she sent him a text message inviting him over for dinner. (1
R.R. 66). Appellant introduced a series of text messages sent from Ms. Wingerter
to Appellant, Defendant’s Exhibits 1 through 12, which were sent between the
dates of November 8, 2014 to November 11, 2014, proving that Ms. Wingerter
invited him over for dinner. (1 R.R. 61). When Ms. Wingerter was questioned
about whether she sent the text messages, she stated she could not remember and
also denied making them. (1 R.R. 29-34, 44). She further speculated that the text
messages presented in the hearing were created by Appellant’s cousin who worked
in the Information Technology (IT) field, as a result of him hacking into her Gmail
account (1 R.R. 29-34, 36). There is no substantiation or corroboration of this
allegation in the record.
The Court found that Appellant did violate the terms and conditions of the
community supervision and found him guilty of Assault of a Family Member –
Second Offender. (1 R.R. 89). The Court sentenced Appellant to five years
confinement in the Texas Department of Corrections (“TDC”). (1 R.R. 89).
On June 26, 2015, Appellant timely filed his Notice of Appeal.
SUMMARY OF THE ARGUMENT
Appellant raises two points of error. First, Appellant contends that the trial
court erred when it adjudicated Appellant because the evidence was factually
insufficient to support an adjudication of guilt because the state’s primary witness
lacked credibility. This claim is based on the fact that the State failed to meet its
burden when it presented only one witness, Ms. Wingerter, the complainant, as
proof that the Appellant violated a term of his community supervision. Ms.
Wingerter’s testimony was factually insufficient and uncorroborated and is thus
unable to support Appellant’s adjudication of guilt and sentence of five (5) years
confinement in TDC.
Next, Appellant contends that the trial court abused its discretion by
sentencing Appellant to five (5) years confinement in TDC as such sentence
amounts to cruel and unusual punishment given the facts of this case. The record
is clear that Appellant’s term of community supervision was set to expire on
December 10, 2014 and this new assault case was filed against him by Ms.
Wingerter on November 8, 2014, one month before his probation was set to end.
Because Appellant had no prior felony convictions and had completed ALL other
conditions and term of his community supervision, a sentence of five (5) years
TDC is considered cruel and unusual punishment.
ARGUMENT
I. BURDEN OF PROOF AND STANDARD OF REVIEW ON APPEAL
An appellant may appeal from a revocation of community supervision. Tex.
Code Crim. Proc. Ann. art. 42.12, § 5(b). In community supervision revocation
cases, the State has the burden to establish by a preponderance of the evidence that
the terms and conditions of community supervision have been violated. Cardona
v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (citing Anderson v. State,
621 S.W.2d 805 (Tex.Cr.App. 1981). This standard is met when the greater weight
of the credible evidence before the trial court supports a reasonable belief that a
condition or term of community supervision has been violated. Rickels v. State,
202 S.W.3d 759, 764 (Tex. Crim. App. 2006); Scamardo v. State, 517 S.W.2d 293,
298 (Tex.Cr.App. 1974).
The Court of Appeals of Texas reviews a trial court’s order revoking
community supervision under an abuse of discretion standard. Id. at 763. If the
State fails to meet its burden, the Court abuses its discretion in issuing a motion to
revoke probation. Greathouse v. State, 33 S.W.3d 455, 458 (Tex. App.—Houston
[1st Dist.] 2000, pet ref'd); Walkovak v. State, 576 S.W. 2d 643 (Tex.Cr.App.
1979). In conducting its review, the appellate court considers all the evidence in
the light most favorable to the trial court’s finding to determine whether the trial
court could have reasonably found that appellant violated the terms and conditions
of his probation by a preponderance of the evidence. Greathouse v. State, 33
S.W.3d 455, 458 (Tex. App.—Houston [1st Dist.] 2000, pet ref'd). The trial judge
is the sole trier of the facts and determines the credibility of the witnesses and the
weight to be given to their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex.
Crim. App. 1980); Amado v. State, 983 S.W.2d 330, 332 (Tex. App.—Houston [1st
Dist.] 1998, pet. ref'd).
II. THE TRIAL COURT ABUSED ITS DISCRETION BY ADJUDICATING APPELLANT BECAUSE THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S ADJUDICATION OF GUILT BECAUSE THE STATE’S PRIMARY WITNESS LACKED CREDIBILITY AND HER TESTIMONY WAS UNCORROBORATED.
In assessing the factual sufficiency of the evidence, the court considers all
the evidence in the light most favorable to the trial court’s finding to determine
whether the trial court could have reasonably found that appellant violated the
terms and conditions of his probation by a preponderance of the evidence. See
Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). The trial judge
is the sole trier of the facts and determines the credibility of the witnesses and the
weight to be given to their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex.
Crim. App. 1980); Amado v. State, 983 S.W.2d 330, 332 (Tex. App.—Houston [1st
Viewed in the light most favorable to the trial court’s decision to adjudicate
guilt, there was insufficient evidence that appellant violated the terms of his
community supervision. The State failed to meet its burden when it presented
solely one witness, the complainant, Ms. Wingerter, to testify to what occurred on
November 8, 2014. Her testimony, alone, was insufficient to support a sentence of
five (5) years because she lacked credibility and her testimony was uncorroborated.
This case depended entirely upon the credibility of the complainant versus
the credibility of the Appellant. Both Appellant and complainant told opposing
accounts about what occurred on November 8, 2014. Ms. Wingerter stated that
Appellant put his arm around her neck and Appellant testified that this never
occurred. The trial court, being the sole trier of the facts, should have determined
that Ms. Wingerter lacked credibility when she gave conflicting testimony. Ms.
Wingerter described this alleged attack as being horrible, yet she maintained
communication with Appellant for three days after this incident allegedly occurred.
When confronted about her constant communication via text message with
Appellant, Ms. Wingerter responded that she did not recall sending any text
messages. She further responded that the text messages were somehow obtained
because someone hacked into her personal accounts.
Ms. Wingerter lacked credibility when she testified at the adjudication
hearing. She repeatedly stated that she could not recall parts of what occurred on
November 8, 2014 and could not remember whether she drafted the text messages
that were sent to Appellant’s phone. Ms. Wingerter stated that she thought her
cousin, Corina Ventura, was present at her home on November 8, 2014. (1 R.R.
15). Then she stated that she could not remember if her cousin was sleeping when
the incident occurred. (1 R.R. 17). Later, she testified that she could not recall
whether her cousin was present at the home because it had been seven months
since the alleged incident had occurred. (1 R.R. 20). She further testified that she,
Ms. Wingerter, had been interviewed three days later in front of her home by the
Harris County Constable’s Office but she could not recall whether Ms. Ventura
was interviewed with her. (1 R.R. 22, 51). She did recall however that Ms.
Ventura was interviewed by the Harris County Constable’s Office. (1 R.R. 22).
She also testified that she could not remember whether her cousin, Ms. Ventura
knocked on her door during the time of the incident. (1 R.R. 23-24).
Ms. Wingerter also lacked credibility because she could not recall the
existence of a series of text messages that were sent from her to Appellant from
November 8, 2014 to November 11, 2014. She could neither recall what her
cellular phone number was nor what her cellular phone looked like. (1 R.R. 25).
Ms. Wingerter also could not recall what the Appellant’s cellular phone looked
like. (1 R.R. 26). She testified that she could not recall or remember when she
first communicated, either by text or voicemail, with Appellant on or after
November 8, 2014. (1 R.R. 28). When Ms. Wingerter was shown pictures of the
text messages, Defendant’s Exhibits 1-12, she denied drafting and sending the text
messages and stated that her computer had been hacked. (1 RR. 29-34, 36). She
did testify, however, that some of the text messages did look familiar, like she
would have written them. (1 RR. 34). Later, she testified that she did not send any
text messages to Appellant between the dates of November 8, 2014 through
November 11, 2014. (1 R.R. 44). Ms. Wingerter could not remember other details
surrounding the alleged incident. For example, she could not remember whether
she went to her parent’s home that day or whether she stayed home. (1 R.R. 49).
Ms. Wingerter’s recount of the alleged incident was completely
uncorroborated. Her cousin, Ms. Ventura, who may have been present during the
alleged incident and who was interviewed by the Harris County Constable’s Office
after the incident, was not present at the adjudication hearing and did not testify to
what occurred that night. (1 R.R. 52). Yet, Ms. Wingerter stated she still had
contact with her cousin and knew where she lived. (1 R.R. 52). The State did not
introduce any other testimony or evidence to corroborate Ms. Wingerter’s recount
of what occurred on November 8, 2014.
The trial court erred by adjudicating Appellant based on the aforementioned
testimony of Ms. Wingerter, a witness who lacks credibility and provided
inconsistent testimony throughout the hearing. The trial court also erred when it
ignored the tangible text messages provided by Appellant which clearly
demonstrate that Ms. Wingerter invited him to their home for dinner on November
8, 2014. The testimony of Ms. Wingerter, alone, is factually insufficient to support
Appellant’s adjudication of guilt because she lacks credibility and because her
testimony was uncorroborated. Accordingly, because the State failed to meet its
burden that the Appellant violated a term of his community supervision, the trial
court abused its discretion when adjudicating Appellant and sentencing him to five
(5) years confinement in TDC.
III. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING APPELLANT TO FIVE (5) YEARS CONFINEMENT IN THE TEXAS DEPARTMENT OF CORECTIONS AS SUCH SENTENCE AMOUNTS TO “CRUEL AND UNUSUAL PUNISHMENT” GIVEN THE FACTS OF THIS CASE.
The 8th and 14th Amendment of the United States Constitution prohibits the
imposition of sentences that are cruel and unusual. U.S. CONST. amend. VIII, XIV.
Similarly, the Texas Constitution forbids the infliction of cruel and unusual
punishment. TEX. CONST. art. I, § 13. Generally, a sentence between the
punishment range does not violate the cruel and unusual punishment prohibition.
Swinney v. State, 828 S.W.2d 254, 259 (Tex. App. - Houston [1st. Dist.] 1992).
However, the Supreme Court has held that “as a matter of principle a criminal
sentence must be proportionate to the crime for which the defendant has been
convicted.” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed2d
637 (1983). A sentence that is greatly disproportionate to the crime or shocks the
conscious may be deemed cruel and unusual. Id. “As the court noted in Robinson
v. California, a single day in prison may be unconstitutional in some
circumstances.” Id. (citing Robinson v. California, 370 U.S. 660, 667, 82 S.Ct.
1417 (1962)).
Under the facts of this case, a sentence of five years is cruel and unusual
punishment; thus the trial Court abused its discretion. When the alleged new law
violation occurred, Appellant was one month away from completing the two year
community supervision term, which he was granted (1 R.R. 52). The community
supervision term would have ended on December 9, 2014 and the alleged incident
occurred on November 8, 2014. (1 R.R. 52). The State filed the Motion to
Adjudicate Guilt on December 2, 2014, only seven days away from the end of his
community supervision term. (1 C.R. 33-34). The Court could have reinstated
community supervision for a longer term and/or mandated him to rehabilitation or
treatment. Instead, the Court sentenced Appellant to five (5) years confinement in
TDC. Although the punishment range for Assault of a Family Member - Second
Offender is two to ten years confinement in TDC, the Court sentenced Appellant to
an amount in the middle of the range of punishment even though Appellant had no
prior felony convictions and had successfully completed ALL other conditions of
community supervision. Because the Supreme Court has held that even sentences
that are within the legal range of punishment could be deemed cruel and unusual,
Appellant’s sentence violated this prohibition. Furthermore, as stated above,
because the evidence was factually insufficient to support an adjudication of guilt,
Appellant’s sentence of five (5) years confinement in TDC can be considered cruel
and unusual give the facts of this case.
CONCLUSION AND PRAYER
For the reasons stated above, Appellant respectfully requests that this Court
reverse his conviction for Assault of a Family Member - Second Offender and
sentence of five (5) years confinement in TDC and remand this case to the trial
court for a new adjudication hearing.
THE CLOUD LAW FIRM, P.C.
/S/ CARVANA CLOUD
Carvana Cloud State Bar No.: 240485544 THE CLOUD LAW FIRM 850 W. Little York, Suite B Houston, TX 77091 832-230-4210 (office) 832-230-4684 (facsimile) carvana@cloudlawfirm.net
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 2,931 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, and certificate of compliance). This is a
computer-generated document created in Microsoft Word, using 14-point typeface
for all text, except for footnotes, which are in 12-point typeface. In making this
certificate of compliance, I am relying on the word count provided by the software
used to prepare the document.
Carvana Cloud State Bar No.: 240485544 THE CLOUD LAW FIRM 850 W. Little York, Suite B Houston, TX 77091 832-230-4210 (office) 832-230-4684 (facsimile) carvana@cloudlawfirm.net
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant’s Brief was served by
electronic service and the electronic submission was reported as complete on this
26th day of October 2015 upon the following person: Alan Curry at
curry_alan@dao.hctx.net.
Carvana Cloud State Bar No.: 240485544 THE CLOUD LAW FIRM 850 W. Little York, Suite B Houston, TX 77091 832-230-4210 (office) 832-230-4684 (facsimile) carvana@cloudlawfirm.net