Gabier Gonzales AKA Harvey Gonzales AKA Javier Gonzales v. State ( 2015 )

ACCEPTED
13-15-00156-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/28/2015 6:57:14 PM
CECILE FOY GSANGER
CLERK
NO. 13-15-00156-CR
FILED IN
COURT OF APPEALS13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH DISTRICT OF TEXAS
7/28/2015 6:57:14 PM
CECILE FOY GSANGER
Clerk
STATE OF TEXAS v. GABIER GONZALES
FROM THE 36TH DISTRICT COURT, SAN PATRICIO COUNTY, TEXAS
CAUSE NO. S-11-3069-CR,
THE HONORABLE STARR BAUER PRESIDING
APPELLEE APPELLANT
John M. Lamerson Jacqueline Rae Lamerson
Attorney at Law Attorney at Law
State Bar No. 24076495 State Bar No. 24074923
P.O. Box 241 P.O. Box 241
Corpus Christi, TX 78403 Corpus Christi, TX 78403
Tel: (361) 816-9969 Tel: (361) 816-9969
Fax: (866) 935-5634 Fax: (866) 935-5634
ORAL ARGUMENT REQUESTED
APPELLANT’S BRIEF
NO. 13-15-00156-CR
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
STATE OF TEXAS v. GABIER GONZALES
FROM THE 36TH DISTRICT COURT, SAN PATRICIO COUNTY, TEXAS
CAUSE NO. S-11-3069-CR,
THE HONORABLE STARR BAUER PRESIDING
TO THE HONORABLE COURT OF APPEALS:
NOW COMES, Defendant, Appellant herein, files and submit his Brief
in this appeal from a revocation of probation and a judgment of guilty, and
would respectfully show as follows:
IDENTITY OF PARTIES AND COUNSEL
Appellant:
GABIER GONZALES
Counsel for Appellants at trial:
Mr. Mark Eggert
707 E San Patricio Ave
Mathis, TX 78368-2430
SBOT No. 06482300
Counsel for Appellants on Appeal:
John M. Lamerson Jacqueline Rae Lamerson
The Lamerson Law Firm Attorney at Law
State Bar No. 24076495 State Bar No. 24074923
P.O. Box 241 P.O. Box 241
Corpus Christi, TX 78403 Corpus Christi, TX 78403
SBOT No. 24076495 SBOT No. 24074923
Counsel for State at Trial:
Mr. Frank Errico
San Patricio County District Attorney’s Office
400 West Sinton Street, Room 233
P.O. Box 1393
Sinton, TX 78387
SBOT No. 06648950
State Appellate Counsel:
Mr. Frank Errico
San Patricio County District Attorney’s Office
400 West Sinton Street, Room 233
P.O. Box 1393
Sinton, TX 78387
SBOT No. 06648950
TABLE OF CONTENTS
Identity of Parties and Counsel …………………………. 3
Table of Contents ………………………….…………… 4
Index of Authorities ………………………….…………… 5
Statement of the Case ………………………….…………… 6
Issues Presented ………………………….…………… 6
A. The sentence imposed by the trial court was disproportionate to the
seriousness of the alleged offense, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution.
Statement of Facts ………………………….…………… 7
Summary of the Argument ................................................ 8
Argument ......................................................................... 9
Issue 1: Eighth and Fourteenth Amendments................... 9
Prayer .......................................................................... 13
Certificate of Service ....................................................... 14
Certificate of Compliance .................................................... 15
INDEX OF AUTHORITIES
Texas Cases:
Noland v. State, 264 S.W.3d 144, 151 (Tex.App.—Houston [1st Dist.] 2007,
pet. ref’d) ………………………………………………………………….. 9
Federal Cases:
Baze v. Rees, 553 U.S. 35 (2008) …………....…………………………. 9
Coker v. Georgia, 433 U.S. 584 (1977) ………..………………………. 10
Furman v. Georgia, 408 U.S. 238 (1972) …………………………. 10
Gregg v. Georgia, 428 U.S. 153 (1976) ……………………..…………. 10
Robinson v. California, 370 U.S. 660 (1962) …………………………. 9
Trop v. Dulles, 356 U.S. 86 (1958) ……………………..…………. 10
Weems v. United States, 217 U.S. 349 (1910) ….………………. 10
United States Constitution:
U.S. CONST. amend. VIII ……..…………....…………………………. 9
U.S. CONST. amend. XIV ……..…………....…………………………. 9
Secondary Sources:
Kirchmeier, Jeffrey L., “Let's Make a Deal: Waiving the Eighth Amendment
by Selecting a Cruel and Unusual Punishment,” Connecticut Law Review,
Vol. 32, No. 2, pp. 615-52, Winter 2000 ……………………..…………. 11
STATEMENT OF THE CASE
On March 20, 2015, against the recommendation of the probation
department, the Defendant, Gabier Gonzales, was revoked from his
probation and sentenced to fifteen (15) years in the Institutional Division of
the Texas Department of Criminal Justice. This revocation and sentence
was a violation of the Defendant’s right against cruel and unusual
punishment. This Eighth Amendment protection cannot be waived by the
Defendant.
ISSUES PRESENTED
Issue 1: The sentence imposed by the trial court was disproportionate to
the seriousness of the alleged offense, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution.
STATEMENT OF FACTS
On March 20, 2015, a Motion to Revoke the probation of Defendant
Gabier Gonzales was heard before Judge Janna Whatley in the 36th
Judicial District Court, San Patricio County, Texas. The State presented as
evidence to the Court the Stipulation and Waiver of the Pre-Sentence
Report, the Stipulation and Judicial Confession, and the Pre-Sentence
Investigation Report. Testimony from the Defendant was taken by the
State and the Defense, and it was made part of the record that the San
Patricio Probation Department recommended that the Defendant be
continued on probation. The Judge revoked the Defendant from his
probation and sentenced him to fifteen (15) years in the Institutional
Division of the Texas Department of Criminal Justice.
SUMMARY OF ARGUMENT
The punishment assessed by the trial Court was excessive in relation
to the crime committed. The punishment was excessive and
unconstitutional as it (1) makes no measurable contribution to acceptable
goals of punishment, and hence is nothing more than the purposeless and
needless imposition of pain and suffering; and/or (2) is grossly out of
proportion to the severity of the crime. The Eighth Amendment protections
guaranteed to the Defendant cannot be waived because such waivers do
not benefit the individual or society.
ARGUMENT
Issue I: The sentence imposed by the trial court was disproportionate
to the seriousness of the alleged offense, in violation of the Eighth
and Fourteenth Amendments to the United States Constitution.
The Eighth Amendment provides that “[e]xcessive bail shall not be
required, nor excessive fine imposed, nor cruel and unusual punishment
inflicted.” See U.S. CONST. amend. VIII, XIV. The Eighth Amendment
applies to punishments imposed by state courts through the Due Process
Clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV. The
protection against cruel and unusual punishment has been incorporated by
the United States Supreme Court against the states. Robinson v.
California, 370 U.S. 660 (1962); Baze v. Rees, 553 U.S. 35 (2008).
In this present case, probation recommended that the Defendant be
reinstated on probation instead of being revoked. RRv2 8:24 - 9:3. The
reasoning behind their recommendation was set forth in the Pre-Sentence
Investigation Report introduced into evidence as State’s Exhibit A. No new
offenses were the subject of the motion to revoke, and the alleged
violations were technical in nature.
The difference between the course of action recommended by the
probation department and the sentence imposed by the court, fifteen years
incarceration in the institutional division of the Texas Department of
Corrections, is so severe, particularly given the lack of severity of the
violations, that it can only be termed as cruel and unusual, and a violation
of the Eighth and Fourteenth Amendments. The United States Supreme
Court has long held that a disproportionality between the sentence and the
offense is a violation of the cruel and unusual provision of the Eighth
Amendment. Coker v. Georgia, 433 U.S. 584 (1977). As the Coker Court
held:
In sustaining the imposition of the death penalty in Gregg,
however, the Court firmly embraced the holdings and dicta from
prior cases, Furman v. Georgia, supra; Robinson v.
California, 370 U.S. 660 (1962); Trop v. Dulles, 356 U.S.
86 (1958); and Weems v. United States, 217 U.S. 349 (1910),
to the effect that the Eighth Amendment bars not only those
punishments that are "barbaric," but also those that are
"excessive" in relation to the crime committed. Under Gregg, a
punishment is "excessive" and unconstitutional if it (1) makes
no measurable contribution to acceptable goals of punishment,
and hence is nothing more than the purposeless and needless
imposition of pain and suffering; or (2) is grossly out of
proportion to the severity of the crime. A punishment might fail
the test on either ground. Furthermore, these Eighth
Amendment judgments should not be, or appear to be, merely
the subjective views of individual Justices; judgment should be
informed by objective factors to the maximum possible extent.
To this end, attention must be given to the public attitudes
concerning a particular sentence history and precedent,
legislative attitudes, and the response of juries reflected in their
sentencing decisions are to be consulted
In this present case, the Defendant’s confinement to the Texas
Department of Corrections, given the fact that there had been no finding
that the Defendant was any danger to society, makes no measurable
contribution to acceptable goals of punishment. And in the alternative, the
Defendant’s revocation based solely on technical violations of his
probation, against the recommendation of the probation department, is
grossly out of proportion to the severity of the crime.
It is true that Texas courts have held heretofore that a party must
present a timely objection to the trial court, state the specific grounds for
the objection, and obtain a ruling. “The failure to specifically object to an
alleged disproportionate or cruel and unusual sentence in the trial court or
in a post-trial motion waives any error for our review.” Noland v. State, 264
S.W.3d 144, 151 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d).
However, recent analysis of the Eighth Amendment, specifically the
prohibition against cruel and unusual punishment, has led constitutional
scholars to the proposition that the prohibition against cruel and unusual
punishment cannot be waived by an individual.
In his article “Let's Make a Deal: Waiving the Eighth Amendment by
Selecting a Cruel and Unusual Punishment,” author Jeffrey L. Kirchmeier
states that the ban on cruel and unusual punishments is a right that differs
significantly from other constitutional criminal rights because it serves a
broad societal purpose, and that the waiver of this right differs from the
waiver of other criminal rights because such waivers do not benefit the
individual or society. See Kirchmeier, Jeffrey L., “Let's Make a Deal:
Waiving the Eighth Amendment by Selecting a Cruel and Unusual
Punishment,” Connecticut Law Review, Vol. 32, No. 2, pp. 615-52, Winter
2000. The analysis within the article makes sense from a practical and
legal point of view. Could the Texas legislature assign punishment for a
Class C misdemeanor at life, a state jail felony at castration, if the
defendant voluntarily waives it as part of an ill-advised plea agreement?
The proposition that a person can choose to be treated cruelly and
unusually by the State is so counter to the interests that the Eighth
Amendment purports to protect that a waiver is legally and morally
impossible.
PRAYER
The Defendant respectfully requests that this Honorable Court grant
his request to find that the trial court abused its discretion for the reasons
stated above. The Defendant respectfully requests that judgment be
reversed and this case be remanded for a new trial.
Respectfully Submitted
John M. Lamerson
The Lamerson Law Firm
State Bar No. 24076495
P.O. Box 241
Corpus Christi, Texas 78403
Telephone: (361) 816-9969
Facsimile: (866) 935-5634
lamersonlawfirm@gmail.com
By /S/ John Michael Lamerson
JOHN M. LAMERSON
Attorney for Defendant Gabier Gonzales
CERTIFICATE OF SERVICE
I hereby certify that a true, correct, and complete copy of the
foregoing was served on all counsel of record via e-filing and via
facsimile (361.364.9490) to the San Patricio County District Attorney's
Office, 400 West Sinton Street, Room 233, P.O. Box 1393, Sinton, TX
78387 in accordance with the Texas Rules of Appellate Procedure on
this day, July 28, 2015.
/S/ John Michael Lamerson
JOHN M. LAMERSON
RULE 9.4(I) CERTIFICATION
In compliance with the Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(I), is 1,891 per the Word software used to write this
document.
/S/ John Michael Lamerson
JOHN M. LAMERSON