Taylor, Demarcus Antonio ( 2015 )

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
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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
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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
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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
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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
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is, therefore, void, and a void sentence can be
brought up for the first time on appeal.
ARGUMENT
Failing to bring a disproportionate sentence
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
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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
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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
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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
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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
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APPENDIX
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