Simpson, Mark Twain ( 2015 )

PD-0599-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/10/2015 3:50:30 PM
Accepted 12/11/2015 9:36:51 AM
ABEL ACOSTA
PD-0599-15 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
_________________________________________________
THE STATE OF TEXAS
RESPONDENT-APPELLANT
December 11, 2015
vs.
MARK TWAIN SIMPSON
PETITIONER-APPELLEE
_________________________________________________
ON DISCRETIONARY REVIEW FROM
THE FIFTH COURT OF APPEALS
CAUSE NO. 05-14-00618-CR
APPEAL FROM CRIMINAL DISTRICT COURT NO. 4
OF DALLAS COUNTY, CAUSE NO. F13-56596-K
_________________________________________________
PETITIONER’S REPLY BRIEF ON THE MERITS
_________________________________________________
BRUCE ANTON SORRELS, UDASHEN & ANTON
State Bar No. 01274700 2311 Cedar Springs, Suite 250
ba@sualaw.com Dallas, Texas 75201
214-468-8100 (office)
BRETT ORDIWAY 214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com Counsel for Petitioner/Appellee
Reply
In Simpson’s brief on discretionary review, he argued that, when
an appellate court evaluates whether a defendant “substantiated” a
claim in a motion for new trial, see State v. Herndon, 215 S.W.3d 901
(Tex. Crim. App. 2007), it must look only to whether he supported the
claim with evidence. Not itself evaluate the merits of the claim.
The State in response doesn’t address that issue. Instead, the
State again argues the merits of the claim—just like it did before the
court of appeals, and as the court of appeals then followed. Indeed, that
is the entirety of the State’s response: boilerplate on the standard of re-
view and disproportionate sentencing, and then argument as to the
merits of Simpson’s claim. (St. Br. at 8-23). The State explicitly charac-
terizes its argument as:
Specifically, the original sentence assessed by the trial court
was not grossly disproportionate to the offense committed
and the first punishment trial was not so seriously flawed as
to affect Appellee’s substantial rights and justify granting
the motion for new trial…. The evidence simply did not
spport his claim of a grossly disproportionate sentence.
(St. Br. at 13). The State’s “Summary of Argument,” too, makes clear its
only focus. (St. Br. at 8).
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Simpson appreciates the State’s lasting desire to return to the
facts. His is a criminal case, after all. But this Court—this appellate
court—granted Simpson’s petition on a question of law. And as to that
question, Simpson urges this Court that the State’s total failure to re-
spond is indicative of the question’s answer. The requirement that a de-
fendant “substantiate” his legal claim does not demand that a defend-
ant prove it—just support it with evidence. Again, this is evinced by, if
nothing else, exactly what occurred in this case—reading “substantiate”
to mean “prove” demands reviewing courts substitute their judgments
for the district courts’. Cf. Herndon, 215 S.W.3d at 907-08 (The “test for
abuse of discretion ‘is not whether, in the opinion of the reviewing court,
the facts present an appropriate case for the trial court's action.’”) (quot-
ing Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005) (quot-
ing Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994))). And,
again, Herndon’s plain language—which the court of appeals ostensibly
considered, but obviously ignored—states “[t]he defendant need not es-
tablish reversible error as a matter of law before the trial court may ex-
ercise its discretion in granting a motion for new trial.” Herndon, 215
S.W.3d 901, 909 (Tex. Crim. App. 2007); see also State v. Zalman, 400
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S.W.3d 590 (Tex. Crim. App. 2013) (this Court evaluated whether Zal-
man substantiated his valid legal claim by considered whether he pro-
vided evidence that “support[ed]” his claims); State v. Varkonyi, No. 08-
06-00262-CR, 2008 WL 821580, *4 (Tex. App.—El Paso 2008, pet.
dism’d) (considering whether the defendant’s evidence was “capable of
supporting a new trial.”); Merriam–Webster Online Dictionary,
http://www.merriam-webster.com/dictionary/substantiate (last visited
November 5, 2015) (definition of “substantiate”: “to give substance or
form to”).
As to the relevant inquiry, Simpson most certainly presented some
evidence supporting his legal claim that his 30-year-old crimes, commit-
ted as a teenager, and for which he already served a lengthy sentence,
were far too remote to support such a harsh sentence here. Accordingly,
Simpson again respectfully requests this Court to reverse the decision
of the court of appeals and accord proper deference to the trial court’s
discretion.
Respectfully submitted,
/s/ Bruce Anton
BRUCE ANTON
Bar Card No. 01274700
ba@sualaw.com
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/s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)
Attorneys for Petitioner-Appellee
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Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of
the foregoing Petitioner’s Reply Brief on the Merits was electronically
served to the Dallas County District Attorney’s Office and the State
Prosecuting Attorney on on December 10, 2015.
/s/ Bruce Anton
BRUCE ANTON
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:
1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(C) because
this petition contains 565 words, excluding the parts of the brief
exempted by TEX. R. APP. P. 9.4(i)(1).
2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
style requirements of TEX. R. APP. P. 9.4(e) because this brief has
been prepared in a proportionally spaced typeface using Microsoft
Word 2011 in 14-point Century Schoolbook.
/s/ Bruce Anton
BRUCE ANTON
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