PD-1674-15 PD-1674-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/28/2015 11:45:34 AM Accepted 12/28/2015 2:22:15 PM NO. __________________ ABEL ACOSTA CLERK
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
DEMARCUS ANTONIO TAYLOR, Appellant v. The State of Texas, Appellee
***************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
FIFTH APPELLATE DISTRICT OF TEXAS
DALLAS, TEXAS
NO. 05-15-00567-CR
DALLAS COUNTY TRIAL COURT NO. F1457392
R. Scott Walker STATE BAR # 24004972 December 28, 2015 222 W. Exchange Avenue Fort Worth, TX 76164 (817) 478-9999 (817) 977-0163 FACSIMILE Attorney for Appellant
ORAL ARGUMENT NOT REQUESTED 1 TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS. . . . . . . . . . . . . . . . 2
IDENTITY OF TRIAL JUDGE PARTIES AND COUNSEL . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . 4
STATEMENT DECLINING ORAL ARGUMENT . . . . . . . 5
STATEMENT OF THE CASE . . . . . . . . . . . . . . 5
STATEMENT OF PROCEDURAL HISTORY OF THE CASE . . 6
GROUNDS FOR REVIEW . . . . . . . . . . . . . . 6
QUESTIONS FOR REVIEW (Failing to bring a
disproportionate sentence complaint before the
trial court is not waiver.). . . . . . . . . . . 6
ARGUMENT . . . . . . . . . . . . . . . . . . . . 7
PRAYER . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . 12
2 IDENTITY OF TRIAL JUDGE,PARTIES AND COUNSEL
The following is a complete list of the trial judge and all parties, as well as the names and addresses of all counsel. Trial Judge: Honorable Paul Banner
Appellant: Demarcus Antonio Taylor
Trial Counsel: Carlton Hughes Attorney at Law 6060 North Central Expressway, Suite 560 Dallas, Texas 75206 Appellate R. Scott Walker Attorney for Appellant: Attorney at Law 222 W. Exchange Avenue Fort Worth, Texas 76164
Appellee: The State of Texas
Trial Attornys for Andrew Novak and Ms. Appellee: Janie Kunnathusseril Dallas County Assistant District Attorney 133 North Riverfront Blvd., LB-19 Dallas, Texas 75207
Appellate Attorney for Susan Hawk Appellee: Dallas County District Attorney 133 North Riverfront Blvd., LB-19 Dallas, Texas 75207
3 INDEX OF AUTHORITIES
CASES
Ex parte Beck, 922 S.W.2d 181 (Tex.Crim.App. 1996) . . . . 7
Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979) . . . . 7
Noland v. State, 264 S.W.3d 144 (Tex.App.-—Houston [1st Dist.] 2007) . . . . . . . . . . . . . . . . . . . 7
McGruder v. Puckett, 954 F2d 313, (5th Cir. cert. denied) . . . . 9
Wynn v. State, 219 S.W.3d 54 (Tex.App.--Houston [1st dist] 2006) . . . . . . . . . . . . . . . . . . . 7
STATUTES
Texas Rules of Appellate Procedure, 66.3(b) . . . . . . . . . . . . . . . . . . 6
4 All references to Texas statutes, rules, etc. are references to the latest edition published by West Publishing Company, unless otherwise indicated. DEMARCUS ANTONIO TAYLOR, Appellant V. THE STATE OF TEXAS, Appellee
************ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW ************ TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT DECLINING ORAL ARGUMENT
Oral argument of this case is not requested on
behalf of Appellant.
STATEMENT OF THE CASE
This appeal has resulted from a criminal prosecution for possession of a controlled substance with intent to deliver. The maximum penalty for the charge is 99 years or life in prison. Attorney Carlton Hughes, of Dallas, Texas represented Mr. Taylor on the charge. On April 22, 2015, appellant pled not guilty to the allegations. (R.R. Vol. 3, p. 12). After evidence
5 was presented, the jury found the defendant guilty of the charge, found the allegation of a deadly weapon to be true, and found the allegation that the offense was committed in a drug-free zone to be true. (R.R. Vol. 4, p. 90). On April 23, 2015, after evidence was presented, the jury assessed punishment at thirty years confinement. (R.R. Vol.5, p. 120). STATEMENT OF PROCEDURAL HISTORY OF THE CASE
The Court of Appeals rendered its decision and
delivered its written memorandum opinion on
Novenber 25, 2015. The deadline for filing a
Petition for Discretionary Review is December 25,
2015.
GROUNDS FOR REVIEW
Texas Rule of Appellate Procedure 66.3(b): The
Court of Appeals has decided an important question
of State law which should be settled by the Court
of Criminal Appeals.
QUESTION FOR REVIEW
Failing to bring a disproportionate sentence
complaint before the trial court is not waiver
because such a sentence is an illegal sentence and
6 is, therefore, void, and a void sentence can be
brought up for the first time on appeal.
ARGUMENT
complaint before the trial court is not waiver.
The Court of Appeals held that a defendant waives
the right to appeal on a disproportionate sentence
complaint unless he objects to the disproportionate
sentence at the trial court or complains in a
motion for new trial. The First District of
Houston has agreed. Noland v. State, 264 S.W.3d
144, 152 (Tex.App.--Houston [1st Dist.] 2007, pet.
Ref’d), Wynn v. State, 219 S.W.3d 54, 61 (Tex.App.-
-Houston [1st Dist.] 2006, no pet.). However, these
holdings should be overturned.
The Court of Criminal Appeals has held that a
sentence outside the statutory range is void and
that the complaint can be brought for the first
time on appeal. Ex parte Beck, 922 S.W.2d 181, 182
(Tex.Crim.App. 1996), Ex parte McIver, 586 S.W.2d
851, 854 (Tex.Crim.App. 1979). The analysis is
7 that an illegal sentence is one that is
unauthorized by law and is, therefore, void. A
sentence which violates the Eighth Amendment,
because it is a disproportionate sentence, is also
an illegal sentence which is not authorized by the
Eighth Amendment to the U.S. Constitution. Any
sentence that violates the U.S.Constition is
certainly an illegal sentence. After all, the U.S.
Constitution is the supreme law of the land.
Therefore, any sentence that violates the U.S.
Constitution is also void, and the complaint should
be reviewable when brought for the first time on
appeal. Any cases holding otherwise should be
overruled.
Furthermore, there are practicality concerns
with holding that failing to bring a
proportionality complaint before the trial court is
waiver. When a trial judge pronounces a sentence,
the trial is then over. It doesn’t make sense to
require an objection after the trial is over.
Furthermore, how can a defendant be expected to be
8 ready to present evidence as to proportionality as
soon as the sentence is pronounced?
Requiring a proportionality complaint in a
motion for new trial would also be problematic.
There are time restraints involved in a motion for
new trial. Rarely is the reporter’s record of the
trial prepared for use at a hearing on a motion for
new trial. A reporter’s record is usually
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PD-1674-15 PD-1674-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/28/2015 11:45:34 AM Accepted 12/28/2015 2:22:15 PM NO. __________________ ABEL ACOSTA CLERK
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
DEMARCUS ANTONIO TAYLOR, Appellant v. The State of Texas, Appellee
***************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
FIFTH APPELLATE DISTRICT OF TEXAS
DALLAS, TEXAS
NO. 05-15-00567-CR
DALLAS COUNTY TRIAL COURT NO. F1457392
R. Scott Walker STATE BAR # 24004972 December 28, 2015 222 W. Exchange Avenue Fort Worth, TX 76164 (817) 478-9999 (817) 977-0163 FACSIMILE Attorney for Appellant
ORAL ARGUMENT NOT REQUESTED 1 TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS. . . . . . . . . . . . . . . . 2
IDENTITY OF TRIAL JUDGE PARTIES AND COUNSEL . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . 4
STATEMENT DECLINING ORAL ARGUMENT . . . . . . . 5
STATEMENT OF THE CASE . . . . . . . . . . . . . . 5
STATEMENT OF PROCEDURAL HISTORY OF THE CASE . . 6
GROUNDS FOR REVIEW . . . . . . . . . . . . . . 6
QUESTIONS FOR REVIEW (Failing to bring a
disproportionate sentence complaint before the
trial court is not waiver.). . . . . . . . . . . 6
ARGUMENT . . . . . . . . . . . . . . . . . . . . 7
PRAYER . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . 12
2 IDENTITY OF TRIAL JUDGE,PARTIES AND COUNSEL
The following is a complete list of the trial judge and all parties, as well as the names and addresses of all counsel. Trial Judge: Honorable Paul Banner
Appellant: Demarcus Antonio Taylor
Trial Counsel: Carlton Hughes Attorney at Law 6060 North Central Expressway, Suite 560 Dallas, Texas 75206 Appellate R. Scott Walker Attorney for Appellant: Attorney at Law 222 W. Exchange Avenue Fort Worth, Texas 76164
Appellee: The State of Texas
Trial Attornys for Andrew Novak and Ms. Appellee: Janie Kunnathusseril Dallas County Assistant District Attorney 133 North Riverfront Blvd., LB-19 Dallas, Texas 75207
Appellate Attorney for Susan Hawk Appellee: Dallas County District Attorney 133 North Riverfront Blvd., LB-19 Dallas, Texas 75207
3 INDEX OF AUTHORITIES
CASES
Ex parte Beck, 922 S.W.2d 181 (Tex.Crim.App. 1996) . . . . 7
Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979) . . . . 7
Noland v. State, 264 S.W.3d 144 (Tex.App.-—Houston [1st Dist.] 2007) . . . . . . . . . . . . . . . . . . . 7
McGruder v. Puckett, 954 F2d 313, (5th Cir. cert. denied) . . . . 9
Wynn v. State, 219 S.W.3d 54 (Tex.App.--Houston [1st dist] 2006) . . . . . . . . . . . . . . . . . . . 7
STATUTES
Texas Rules of Appellate Procedure, 66.3(b) . . . . . . . . . . . . . . . . . . 6
4 All references to Texas statutes, rules, etc. are references to the latest edition published by West Publishing Company, unless otherwise indicated. DEMARCUS ANTONIO TAYLOR, Appellant V. THE STATE OF TEXAS, Appellee
************ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW ************ TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT DECLINING ORAL ARGUMENT
Oral argument of this case is not requested on
behalf of Appellant.
STATEMENT OF THE CASE
This appeal has resulted from a criminal prosecution for possession of a controlled substance with intent to deliver. The maximum penalty for the charge is 99 years or life in prison. Attorney Carlton Hughes, of Dallas, Texas represented Mr. Taylor on the charge. On April 22, 2015, appellant pled not guilty to the allegations. (R.R. Vol. 3, p. 12). After evidence
5 was presented, the jury found the defendant guilty of the charge, found the allegation of a deadly weapon to be true, and found the allegation that the offense was committed in a drug-free zone to be true. (R.R. Vol. 4, p. 90). On April 23, 2015, after evidence was presented, the jury assessed punishment at thirty years confinement. (R.R. Vol.5, p. 120). STATEMENT OF PROCEDURAL HISTORY OF THE CASE
The Court of Appeals rendered its decision and
delivered its written memorandum opinion on
Novenber 25, 2015. The deadline for filing a
Petition for Discretionary Review is December 25,
2015.
GROUNDS FOR REVIEW
Texas Rule of Appellate Procedure 66.3(b): The
Court of Appeals has decided an important question
of State law which should be settled by the Court
of Criminal Appeals.
QUESTION FOR REVIEW
Failing to bring a disproportionate sentence
complaint before the trial court is not waiver
because such a sentence is an illegal sentence and
6 is, therefore, void, and a void sentence can be
brought up for the first time on appeal.
ARGUMENT
complaint before the trial court is not waiver.
The Court of Appeals held that a defendant waives
the right to appeal on a disproportionate sentence
complaint unless he objects to the disproportionate
sentence at the trial court or complains in a
motion for new trial. The First District of
Houston has agreed. Noland v. State, 264 S.W.3d
144, 152 (Tex.App.--Houston [1st Dist.] 2007, pet.
Ref’d), Wynn v. State, 219 S.W.3d 54, 61 (Tex.App.-
-Houston [1st Dist.] 2006, no pet.). However, these
holdings should be overturned.
The Court of Criminal Appeals has held that a
sentence outside the statutory range is void and
that the complaint can be brought for the first
time on appeal. Ex parte Beck, 922 S.W.2d 181, 182
(Tex.Crim.App. 1996), Ex parte McIver, 586 S.W.2d
851, 854 (Tex.Crim.App. 1979). The analysis is
7 that an illegal sentence is one that is
unauthorized by law and is, therefore, void. A
sentence which violates the Eighth Amendment,
because it is a disproportionate sentence, is also
an illegal sentence which is not authorized by the
Eighth Amendment to the U.S. Constitution. Any
sentence that violates the U.S.Constition is
certainly an illegal sentence. After all, the U.S.
Constitution is the supreme law of the land.
Therefore, any sentence that violates the U.S.
Constitution is also void, and the complaint should
be reviewable when brought for the first time on
appeal. Any cases holding otherwise should be
overruled.
Furthermore, there are practicality concerns
with holding that failing to bring a
proportionality complaint before the trial court is
waiver. When a trial judge pronounces a sentence,
the trial is then over. It doesn’t make sense to
require an objection after the trial is over.
Furthermore, how can a defendant be expected to be
8 ready to present evidence as to proportionality as
soon as the sentence is pronounced?
Requiring a proportionality complaint in a
motion for new trial would also be problematic.
There are time restraints involved in a motion for
new trial. Rarely is the reporter’s record of the
trial prepared for use at a hearing on a motion for
new trial. A reporter’s record is usually
necessary to develop a claim of proportionality.
In order to win a proportionality complaint, a
defendant must show that his sentence is
disproportionate to other similar crimes in the
jurisdiction and other jurisdictions. McGruder v.
Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied.
It would be just short of impossible to compile
sufficient evidence of the average sentences for
similar crimes in Texas and in other jurisdictions.
Compiling this kind of evidence is nothing short of
monumental. After all, the analysis requires a
comparison of similar criminal acts which lead to
similar criminal charges, not just similar criminal
charges. The actual actions of the defendants must 9 be compared, not merely cases involving the same
statutory charge. Therefore, it could be that
every case used as a comparison case must be
examined to see if the criminal actions of that
particular defendant was similar to the criminal
actions of the appellant. Again, compiling this
kind of evidence during the short time in which a
defendant has to prepare for a hearing on a motion
for new trial would be impossible.
The holding of the Court of Appeals’ opinion,
in actuality, obliterates the constitutional right
to proportionate sentencing. When appellate courts
create rules which make it impossible to avail
oneself to constitutional guarantees, the courts
are in effect taking away those guarantees. Again,
the line of cases that require an objection to
proportionality or a complaint in a motion for new
trial should be overturned.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Demarcus
Antonio Taylor, Appellant, prays that this Petition
for Discretionary Review be granted; that this case 10 be submitted to the Court; that the Court of
Appeals’ decision be reversed and for such other
relief for which he shows himself entitled.
Respectfully Submitted,
s/Scott Walker
By: Scott Walker
222 W. Exchange Avenue Fort Worth, Texass 76164 (817) 478-9999 (817) 977-0163 Fax Attorney for Appellant
CERTIFICATE OF SERVICE
A copy of this petition was served by first class mail to the Office of Criminal District Attorney, Tarrant County Courthouse, 401 W. Belknap, Fort Worth, Texas 76196 and to the State Prosecuting Attorney at P.O. Box 12405, Austin, Texas 78711 on the 25h day of December, 2015.
s/Scott Walker Scott Walker
11 CERTIFICATE OF COMPLIANCE
I certify that this document copmplies with the length requirements as set forth by the Texas Rules of Appellate Procedure in that this document contains 1634 words, and that the document is in 14 point type. s/Scott Walker Scott Walker
12 APPENDIX