Vincent Orisbel Barrera v. State

Opinion

ACCEPTED 13-15-00374-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 13-15-00374-CR 9/15/2015 4:33:27 PM Dorian E. Ramirez CLERK

CAUSES 13-15-00374-CR

IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 9/15/2015 4:33:27 PM DORIAN E. RAMIREZ Clerk

VINCENT ORISBEL BARRERA, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

APPELLANT’S BRIEF

Trial Cause 14-9-9313

Jackson Co. District Court

Submitted by

W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659

ORAL ARGUMENT NOT REQUESTED 1 IDENTITY OF PARTIES AND COUNSEL

Appellant was represented at trial by Brenna Crane, Attorney at Law, 302 West Forrest St., Victoria, TX 77901. Appellant is represented on appeal by W. A. (Bill) White, Attorney at Law, POB 7422, Victoria, TX 77903-7422.

During trial, appellant was a resident of Jackson County, Texas. Appellant is currently incarcerated in IDTDCJ.

The State was represented at trial by Robert E. Bell, D.A., of the Jackson County District Attorney’s Office, 115 W. Main Street, Room 205, Edna, TX 77957. Appellant anticipates that Jim Vollers, Attorney at Law, 2201 Westover Road, Austin, TX 78703, will handle the State’s reply brief in this cause.

2 TABLE OF CONTENTS

Page

Index of Authorities 4

Appellant’s Brief 5

Statement of Case and Statement of Facts 5

Issue Presented 6

Summary of Argument 6

Argument 6

Sole Issue 6

Prayer 8

Certificate of Service 9

Certificate of Compliance 9

3 INDEX OF AUTHORITIES

Cases Page

Coker v. Georgia, 433 U.S. 584 (1977) 8

Solem v. Helm, 463 U.S. 277 (1983) 8

Trop v. Dulles, 356 U.S. 86 (1958) 8

Weems v. United States, 217 U.S. 349 (1910) 7

Constitutional Provisions

U.S. Const. amend VIII 8

4 CAUSE 13-15-00374-CR Trial Cause 14-9-9313

VINCENT ORISBEL BARRERA IN THE THIRTEENTH

VS. COURT OF APPEALS AT

THE STATE OF TEXAS CORPUS CHRISTI, TEXAS

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW APPELLANT, VINCENT ORISBEL BARERA,

through counsel, W. A. (BILL) WHITE, Attorney at Law,

showing:

STATEMENT OF CASE AND STATEMENT OF FACTS

Appellant was indicted in September 2014 for

tampering with physical evidence, a third degree

felony. The indictment alleged four prior felony

convictions in enhancement paragraphs, making the

offense that of habitual felon (25 to 99 years or life

in IDTDCJ). The indicted crime was alleged to have

occurred on or about 7/24/14 in Jackson County, Texas.

Appellant, with counsel, pled “not guilty” to his

indictment without plea agreement on 7/15/15 in open

5 court, and “true” to the four enhancement paragraphs.

(RR Vol. 2, pp. 9-12). All issues of guilt/innocence

and punishment were tried before the bench on 7/15/15

and 7/16/15, without a jury. At the conclusion of

evidence and argument, the trial court found appellant

guilty of the indicted offense and assessed punishment

at 40 years in IDTDCJ. (RR Vol. 3, pp. 10-11)

ISSUE PRESENTED

APPELLANT’S SENTENCE OF 40 YEARS IN PRISON FOR THIS CRIME CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

SUMMARY OF ARGUMENT

Appellant should have received a prison sentence

shorter than 40 years for this theft-related crime

under evolving standards of decency echoed in the

eighth amendment.

ARGUMENT

SOLE ISSUE

Appellant visited a convenience store in Jackson

County on 7/24/14 in the daytime during an hour when

6 the store had no patrons, only owners and employees. A

child of the owners had left her cell phone sitting on

the edge of a beer tray inside the store and walked

off. Appellant took the phone and later, according to

the State, removed and erased its “sim” card, scrubbing

the phone of all ownership indicia (photos, screensaver

art, contacts, text messages, etc.). According to the

State, this “scrubbing” of the sim card amounted to

tampering with physical evidence.

An objection on grounds of cruel and unusual

punishment grounds was raised by trial counsel when

appellant was sentenced to 40 years in prison. This

objection was overruled by the trial court. (RR Vol. 3,

p. 11). A 40-year sentence is disproportionate to

appellant’s offense in this cause.

The constitutional principal of proportionality has

been recognized explicitly in the U.S. Supreme Court

for over a hundred years. See generally Weems v. United

States, 217 U.S. 349 (1910). A criminal sentence must

be proportionate to the crime for which the defendant

7 has been convicted. Solem v. Helm, 463 U.S. 277, 291

(1983). A court must consider the severity of the

penalty in deciding whether it is disproportionate.

See, e.g., Coker v. Georgia, 433 U.S. 584, 598 (1977).

The prohibition against cruel and unusual punishment is

contained within the eighth amendment to our federal

constitution. See U.S. Const. amend VIII.

Applying evolving standards of decency that mark

the progress of a maturing society [see generally Trop

v. Dulles, 356 U.S. 86 (1958)], appellant’s prison

sentence in this cause should be vacated and rendered

for far less than 40 years.

Appellant, although he has an extensive criminal

history, committed a completely nonviolent property

crime in this cause. A 40-year sentence is simply too

high for such an offense.

PRAYER

Appellant prays that his sentence be vacated in

this cause and rendered for less than 40 years.

8 Respectfully submitted,

/s/ W. A. White W. A. (BILL) WHITE ATTORNEY FOR APPELLANT POB 7422, Vict., TX 77903 (361) 575-1774 voice/fax TBN 00788659

CERTIFICATE OF SERVICE

I certify that a true and correct copy or duplicate

original of the foregoing has been provided to Robert

E. Bell, D.A., Jackson Co. District Attorney’s Office,

115 W. Main Street, Room 205, Edna, TX 77957 via U.S.

mail, fax, electronic delivery, or hand-delivery on

this the 15th day of September 2015.

/s/ W. A. White W. A. White

CERTIFICATE OF COMPLIANCE

I certify that this brief contains 919 words.