Robert Gonzales v. State ( 2015 )


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  •                                                                   ACCEPTED
    02-15-00032-CR
    SECOND COURT OF APPEALS
    FORT WORTH, TEXAS
    5/5/2015 3:00:03 PM
    DEBRA SPISAK
    CLERK
    NO. 02-15-00032-CR
    FILED IN
    2nd COURT OF APPEALS
    FORT WORTH, TEXAS
    IN THE COURT OF APPEALS            5/5/2015 3:00:03 PM
    FOR THE SECOND DISTRICT OF TEXAS            DEBRA SPISAK
    Clerk
    FORT WORTH, TEXAS
    ROBERT GONZALES
    V.
    THE STATE OF TEXAS
    APPEALING THE TRIAL COURT'S JUDGMENT
    IN CAUSE NUMBER 1351979D
    FROM THE 396TH DISTRICT COURT OF
    TARRANT COUNTY, TEXAS
    HON. GEORGE GALLAGHER, PRESIDING JUDGE
    APPELLANT'S BRIEF
    RICHARD A. HENDERSON
    RICHARD A. HENDERSON, P.C.
    100 THROCKMORTON STREET, SUITE 540
    FORT WORTH, TEXAS 76102
    (817) 332-9602
    (817) 335-3940fax
    State Bar No. 09427100
    richard(Jjahenderson.com
    ATTORNEY FOR APPELLANT
    Oral Argument Requested
    TABLE OF CONTENTS
    Tableof Contents .......................................................................................................i
    List of Interested Parties............................................................................................ii
    Indexof Authorities..................................................................................................iii
    IssuesPresented ........................................................................................................ i'i
    Issue for Review No. 1:
    THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL
    AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO
    EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE
    TEXAS DEPARTMENT OF CRIMINAL JUSTICE ............................................. iv
    Statementof the Case ................................................................................................ 1
    Summary of the Facts of the Case.............................................................................2
    Summaryof Argument .............................................................................................. 2
    Argumentsand Authorities .......................................................................................3
    Issue for Review No. 1: (Restated)
    THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL
    AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO
    EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE
    TEXAS DEPARTMENT OF CRIMINAL JUSTICE...............................................3
    Prayer......................................................................................................................... '1
    Certificateof Compliance ......................................................................................... 5
    Certificateof Service ................................................................................................. 6
    LIST OF INTERESTED PARTIES
    Robert Gonzales
    TDCJ 1978388
    Formby Unit
    998 CR AA
    Plainview, Texas 79072
    Appellant
    Ms. Debra Windsor,
    Assistant Criminal District Attorney
    Post-Conviction
    Jim Hudson
    Tracey Kapsidelis
    Assistant Criminal District Attorneys
    District Attorney's Office
    401 West Belknap
    Fort Worth, Texas 76196-0201
    Sharen Wilson,
    Criminal District Attorney
    Tarrant County, Texas
    Attorneys for the State
    Abe Factor
    6211 Airport Freeway
    Fort Worth, Texas 76117
    Trial Attorney
    Richard A. Henderson
    Richard A.Henderson, P.C.
    100 Throckmorton Street, Suite 540
    Fort Worth, Texas 76102
    Attorney for Appellant
    11
    INDEX OF AUTHORITIES
    CASES:
    Acosta v. State, 
    160 S.W.3d 204
    ; (Tex App—Ft. Worth 2005-no pet.) ....................4
    Calhoun v. State, 214 S.W.335 (Tex. Crim. App. 1919)..........................................4
    Delacruz v. State, 
    167 S.W.3d 904
    (Tex. App.—Texarkana 2005)...........................4
    Harmelin v. Michigan, 
    501 U.S. 957
    (1991).............................................................4
    Jordan v. State, 
    495 S.W.2d 949
    , 952 (Tex.Crim. App. 1973).................................4
    (5th
    McGruder v. Puckett, 954 F2d 316      Cir.)
    cert denied 
    506 U.S. 849
    (1992).......................................................................4
    Codes:
    Texas Code of Criminal Procedure 42.12 3(g) (2) (b).............................................. 3
    Constitutions:
    8'b Amendment of the United States Constitution.....................................................4
    Article1 Section 13 of the Texas Constitution ......................................................... 4
    ISSUES PRESENTED
    ISSUE FOR REVIEW NO. ONE
    THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED
    CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO
    EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE
    TEXAS DEPARTMENT OF CRIMINAL JUSTICE.
    iv
    IN THE COURT OF APPEALS FOR THE
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    ROBERT GONZALES,                           §
    APPELLANT                            §
    §
    V.                                         §    NO. 02-15-00032-CR
    §
    THE STATE OF TEXAS,                        §
    APPELLEE
    APPEALED FROM CAUSE NUMBER 13519 79D
    FROM THE 396r DISTRICT COURT OF
    TARRANT COUNTY, TEXAS
    THE HONORABLE, GEORGE GALLAGHER, JUDGE PRESIDING
    TO THE HONORABLE COURT OF APPEALS:
    STATEMENT OF THE CASE
    This is an appeal (CR 54-55) from an open plea of guilty to the trial court
    (CR 38-46) for arson with intent to damage a habitation. (CR 49-51). A pre-
    sentence investigation was ordered by the court. (CR 47-48). A punishment
    hearing was held on January 26, 2015 (RR volume 2). The trial court sentenced
    Appellant to eighteen (18) years in the Institutional Division of the Texas
    Department of Criminal Justice with a deadly weapon finding, specifically, a
    combustible or flammable liquid. (CR 49-51 RR2:100).
    1
    SUMMARY OF THE FACTS OF THE CASE
    On December 3, 2013 at approximately 6:15 a.m., Shane Bradshaw and
    companion, Akita McGowan were asleep at their residence at 3437 Nies Street in
    Fort Worth, Texas. Akita was awakened by hearing a banging on the Plexiglas
    windows of the bedroom and by the head board of their bed being pushed from the
    window from the outside. Akita then heard the spilling of a liquid and smelled
    gasoline. As she was trying to awaken Shane, the bedroom became engulfed in
    flames. They escaped uninjured but most of the house was burned severely and
    most of their personal property was damaged or destroyed. Akita owned three
    cats, two cats escaped and one died of smoke inhalation. (RR2: 41-51).
    Appellant was observed fleeing the scene by surveillance camera from the
    home. Police and fire department investigators searched the home of Appellant
    who lived next door. Gasoline was discovered on his clothes. Appellant admitted
    the offense and pleaded guilty to it. (CR- PSI 2-5).
    SUMMARY OF ARGUMENT
    It was an abuse of discretion and the punishment of eighteen (18) years on
    the arson with intent to damage a habitation charge constitutes cruel and unusual
    punishment inflicted on Appellant by the trial court.
    2
    ARGUMENTS AND AUTHORITIES
    ISSUE FOR REVIEW NO. ONE (RESTATED)
    THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED
    CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO
    EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE
    TESAS DEPARTMENT OF CRIMINAL JUSTICE.
    A Pre-Sentence Investigation (PSI) was prepared. The PSI states
    Appellant's age to be thirty-four (34). The sentence is also an aggravated sentence
    meaning Appellant will have to serve half of the sentence, nine years, before he is
    eligible for parole under Texas Code of Criminal Procedure 42.12 3(g) (2) (b).
    An eighteen (18) year sentence for a person this young (age 34) is severe
    and harsh punishment. Appellant believes it is cruel and unusual and
    disproportionate even if the punishment is within the punishment range allowed by
    law.
    Appellant presented evidence from his family in which it was shown he
    accepts responsibility for his crime (RR2: 73-75).
    Raymond Escobar Jr. testified that both Appellant and Appellant's father
    work for Escobar's company and that Appellant is a diligent and good worker who
    can work on jobs without supervision. (RR2: 83-85).
    3
    Appellant believes his punishment of eighteen (18) years is cruel and
    unusual and disproportionate and violates both the 8th Amendment of the United
    States Constitution and Article 1 Section 13 of the Texas Constitution, Calhoun v.
    State, 214 S.W.335 (Tex. Crim. App. 1919); Jordan v. State, 
    495 S.W.2d 949
    , 952
    (Tex.Crim. App. 1973); Delacruz v. State, 
    167 S.W.3d 904
    (Tex. App.—Texarkana
    2005); Acosta v. State, 
    160 S.W.3d 204
    ; (Tex App—Ft. Worth 2005-no pet.);
    McGruder v. Puckett, 954 F2d 316 (5th dr.) cert denied 
    506 U.S. 849
    (1992) and
    Harmelin v. Michigan, 
    501 U.S. 957
    (1991).
    After this court reviews the record and the PSI, Appellant believes that this
    court will reverse the trial court and order a new punishment hearing in which a
    proportionate and reasonable sentence will be assessed.
    PRAYER
    Appellant respectfully requests that the court reverse the trial court and order
    a new punishment hearing. Appellant also prays for all such additional or future
    relief to which he may be entitled to in law or in equity.
    4
    Respectfully Submitted,
    RICHARD A. HENDERSON, P.C.
    Two City Place
    100 Throckmorton Street, Suite 540
    Fort Worth, Texas 76102
    Telephone: (817) 332-9602
    Telecopier: (817) 335-3940
    richard(rahenderson. coml
    reza(yjtt~
    RThHARD A. HENDE SON
    State Bar No. 09427100
    ATTORNEY FOR APPELLANT
    CERTIFICATE OF COMPLIANCE
    This document complies with the typeface requirements of TEx.R.APP. P.
    9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
    point for text and 12-point for footnotes. This document also complies with the
    word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,317 words,
    excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the
    word-count feature of Microsoft Office Word 2010, the computer soft7vare used to
    prepare the document.
    A. Henderson
    5
    CERTIFICATE OF SERVICE
    A true copy of the Appellant's Brief has been electronically served on
    opposing counsel, Ms. Debra Windsor, Assistant Criminal District Attorney, Post-
    Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street,
    Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr. Robert
    Gonzales, TDCJ #1978388, Formby Unit, 998 CR AA, Plainview, Texas 79072
    on this the       of May, 2015.
    Kicflarcl A. 1-lencierson
    .
    N