                                                            ACCEPTED
                                                        01-14-01035-CR
                                             FIRST COURT OF APPEALS
                                                     HOUSTON, TEXAS
                                                   6/18/2015 3:49:01 PM
                                                  CHRISTOPHER PRINE
                                                                 CLERK




         No. 01-14-01035-CR
                                    FILED IN
                             1st COURT OF APPEALS
                                 HOUSTON, TEXAS
IN THE FIRST COURT OF APPEALS6/18/2015 3:49:01 PM
  SUPREME JUDICIAL DISTRICT CHRISTOPHER A. PRINE
                                     Clerk
         HOUSTON, TEXAS



          JULIA JUAREZ

                 vs.

      TIIE STATE OF TEXAS



          Appealed from the
District Court of Harris County, Texas
    230th Judicial District Court
         Cause No.1422760


     BRIEF FOR APPELLANT


 ORAL ARGtri\{ENT REQUESTEn

                MTCHAEL P. FOSHER,
                Attorney at Law
                The Lyric Center
                440 Louisiana Ste. 1200
                Houstono Texas 77 002-1636
                (713) 221-1,810
                T.B.N.: 07280300

                ATTORNEY FOR APPELLANT
                      IDENTITY OT PARTIES AND COUNSEL

         Pursuant to Tex. R. App. P. 38.1(a), (Vernon Pamph. 2014), the following persons are
interested parties:



Presiding Judge At Trial

The Honorable Judge Brad Hart
230th Judicial District Court
1201 Franklin
Houston, Tx77002

Attorneys for State

Stephen Aslett
Assistant D.A.
1201 Franklin
Houston Tx77002

Attomey for Defense (at trial)

Mr. Joseph Vinas
Attorney atLaw
405 Main, Suite 950
Houston, Tx77002
(713)229-9922

Mr. Michael P. Fosher (on appeal)
Attomey atLaw
The Lyric Center, 400 Louisiana, STE. 1200
Houston, Tx77002-1636
(713)   22r-r8r0
                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND          COI.INSEL.                 i

TABLE OF CONTENTS        .                                 ii

LIST OF CITATIONS    .                                     iii

STATEMENT OF JUR]TSDICTION                                  1


REQUEST FOR ORAL    ARGUMENT                                1


STATEMENT OF THE CASE        .                              1


STATEMENT OF FACTS   .                                      1


SUMMARY OF THE ARGUMENT          .                          5


ISSUES   PRESENTED                                          5


APPELLANT'S FIRST POINT OF ERROR.                          6


THE TRIAL COURT ERRED IN CONSIDERING INADMISSIBLE EXTRANEOUS
CONDUCT IN DETERMINING THE SENTENCE FOR APPELLANT.


APPELLANT'S SECOND POINT OF'ERROR

APPELLANT RECEIVED CRUEL AND UNUSUAL PLINISHMENT WHERE THE
RECORD REFLECTS THAT ALTHOUGH SHE V/AS ELIGIBLE FOR PROBATION
APPELLANT RECEIVED A FOURTEEN YEAR SENTENCE IN THE TEXAS
DEPARTMENT OF CORRECTIONS.


PRAYER FOR RELIEF


CERTIFICATE OF SERVICE                                     10
                                       LIST OF CITATIONS
                                       FEDERAL CASES
Solem v. Helm,
       463 U.S. 277,103 S.Ct. 3001, 77    L.Bd.2d637 (1983).

                                        STATE CASES
Smithv. State,
        227 5.W.3d,753 (Tex. Crim. App.2007).                                          6

Curry v. State,
       910 S.W.2d 490,497 (Tex. Crim. App. 1995)

Meraz v. State,
      785 S.W.2d 146 (Tex. Crim. App. 1990)

                                      FEDERAL STATUES

U.S. Const. amendment   8.                                                         .7


                                      STATE STATUTES

Tex. R. App. P. Arur. 38.1 (Vemon Pamph.     2014).                                    i
Tex. R. App. P. 26.2(a)(Yernon   PamphIet2}l4).                                        1



Tex. R. App. P. Ann. 39.1 (Vernon Pamph.     2014).                                .   1



Article 42.12, Section 9 of the Texas Code of Criminal   Procedure                     6

Article 37.07, Section 3 (a) (1) of the Texas Code of Criminal Procedure   .   .   .6

Texas Rules of Evidence 103 (b)   .                                                .7

Tex. R. App.   33.1(a)                                                                 7

Tex. R. App. P. 43.2 (d), aa.2 @) (Vemon Phamp. 2014)     , ..                         8


Texas Rule of Appellate Procedure 9.4   (i) (3) ..                                     9
                             STATEMENT OF JURISDICTION

        This appeal lies from Appellant's conviction in The State ofTexas v. JULIA JUAREZ, Cause

No.   1422760, for the offense of Manslaughter, in the 230th District Court of Harris County, Texas.

On December 22,2014, Appellant was convicted of Manslaughter on her plea of guilty (Ts-36) and

punishment was assesse d at 14 years in the Texas Department of Criminal Justice by the Court after

a pre-sentencing   investigation. (Ts-47)

        Appellant gave written notice of appeal on December22,2014, (Ts-50). A Motion forNew

Trial was filed and ovemrled by operation of law. (Ts-61)

        This court has jurisdiction pursuant to Tex. R. App. P.26.2(a)(Vernon Pamphlet 2014).

                           REQUEST FOR ORAL ARGUMENT

        Pursuant to Tex.   R.App.P. Ann. 39.1 (Vernon Pamph. 2014), Appellant             requests oral

argument in this cause.

                                STATEMENT OF THE CASE

        This appeal lies from the Appellant's conviction for the offense of Manslaughter. In two

points of error, appellant complains that the trial court erred in considering inadmissible extraneous

conduct in determining sentence for Appellant. Further Appellant contends that her sentence

amounted to cruel and unusual punishment.


                                  STATEMENT OF FACTS

        The first witness for the State at the sentencing hearing was June Goss who stated that she was

the mother of her daughter that was killed on October   8,2013. (C.R. II-21).   She also stated that her

daughter, the complainant was 36 at the time of her passing and had never been married. She
assumed that her daughter was good friends with Appellant         for ayear priorto the car accident (C.R.

II-24).   She also stated that she planned on seeing her daughter the day of her passing and that she had

just gotten out of the hospital six weeks before the day of her death (C.R. II-27). She stated that she

had not heard from Appellant as to an apology, compassion or concern and she never received a

phone call from Appellant regarding apologizing for the accident (c.R. II-33).

          The first witness for the defense was Kasey Austin. She stated that she had known Appellant

for22 years and Appellant had been her best friend (C.R. II-70). She also stated that Appellant and

the complainant were good friends and hung out a lot together (C.R.        II-70).   She also stated she would

help Appellant if Appellant was granted probation by giving her      a   ride wherever she needed to go and

help her in any way with classes, or   if   she needed a place to stay. (C.R. II-73).

          The next witness for the defense was the Appellant who stated that since she had been out           of
jail   she had been   living with her aunt, Angela Thomas in Cleveland whom          she also lived   with for a

few years when she was younger (C.R. II-82). Appellant stated that Mr. Graham is her step-father

and her mother is Stephanie Graham but her biological father is George Burress (C.R.              II-86).   She

stated that Mr. Burress went to Mexico and she had a phone call relationship with him every now and

then but she was raised by    Mr. Graham and her mother Stephanie Graham (C.R. II-SS).                She stated

that from middle school through high school she lived with her grandmother, Karen K. Holmberg

(C.R. II-91). Appellant did state during high school she did live most of the time with friend down

the street named Annette Grimes. (C.R. II-94). Appellant stated she completed the eleventh grade

and later received her GED. (C.R.    II-97). Appellant also stated she studied electrical engineering at

ITT Tech but had to withdraw due to financial reasons. (C.R. II-98). Appellant stated she was waiting

for the outcome of her case to determine whether she could re-ernoll in school (C.R. II-100).
Appellant stated she met complainant, Samantha Kea around three years ago through            a   mutual friend

(C.R. II-103). Also they had been best friends for two years and she had been to Ms. Kea's home a

number of times (C.R. II-107).

          As to the date of the accident, Appellant could not remember what happened before or after

since she was hurt pretty bad and in a coma for three days (C.R.        il-l09).   She had broken her pelvis


in six places and her femur (C.R. II-109).

Appellant had been released from the hospital for eight days after the accident (C.R. II-1 11). Also she

had had six surgeries on her pelvis and she has two long screws in the middle of her pelvis and a metal

rod in her leg and a screw in her knee (C.R. II-1i 3). Appellant agreed she had talked to a PSI Writer

and that the last time she had drunk alcohol was on a March 12,2013 which was her birthday (C.R.

II-1   i7). Appellant also stated that she told the PSI Writer   that the last time she had drank alcohol was


on March 12,2013 because she did not remember drinking any alcohol the day of the accident but

agreed that she a blood alcohol content      of .04 (C.R. II-114). Appellant was in the hospital and her

friend Ms. Kea had died and she did not want her friend to die nor did she intend for her to die (C.R.

II-1i9). Appellant then stated that she had not contacted Ms. Kea's mother           because she was dealing


with her own issues and injuries and her mother had told her not to have contact with complainant's

mother. If complainant's mother was in the courtroom she would tell her how sorry she was that this

had happened and she loved her daughter (C.R. II-122).

             On cross-examination appellant agreed that she had no children to care for and had not held

down     a   job since 2012 (C.R. lI-I23). Appellant had agreed that     she had used   "Meth" and had been

arrested for possession     of "Meth" (Methamphetamine) on July 18, 2013 in Montgomery County                    a


coupleofmonthsbeforethisaccidentoccurred(C.R.II-125). WhentheStateattemptedtogointothe
facts regarding the possession case in Montgomery County, Appellant followed her lawyer's advice

and refused to answer any questions regarding that case and the Judge       finally agreed that the dismissal

of that case included hearsay as to the State's reasons of the dismissal (C.R. II-127).

         According to her probation conditions in Montgomery County, Appellant denied she did not

pay the urinalysis fees, used o'Meth" (Methamphetamine) and did not pay his supervisor's fees (C.R.

Ii- 1 40). Appellant then agreed that she had lied when she said she had told probation that the last time

she had   used "Meth" (Methamphetamine) was in July 2013 (C.R. II-143). She said she did not

continue to smoke "Meth" (Methamphetamine) nor did she remember drinking any alcohol around

the time of the accident (C.R.   II-143). Appellant agreed that when her blood was drawn on the day

of the crash the blood came back positive for "Benzo diazapine" and she was not awate of that finding

nor did she understand how that substance found its way into her system (C.R. II- 149). She agreed she

had hung out with people that have criminal records but denied that she hung out with a person          with

a   pending murder charge (C.R. II-149). She had agreed that her driver's license had been suspended

for tickets on five different occasions and she admitted she had three speeding tickets on her record

(C.R. II-152). Appellant claimed that she had no memory of the crash. She said it would surprise her

to learn that she had driven at a speed of 80 miles per hour and veering into oncoming traffic, having

a head   on collision with a pickup truck that had four men in it. (C.R.   II-152).   She agreed the accident

occurred in October 2013 and she was she was not charged until     April 2Al4,and she had not contacted

Ms. Goss or apologized to her about what happened to her daughter (C.R. II-155).

         On re-direct of examination, Appellant agreed that she was unable to walk from the date           of

the accident without crutches until February 2014 and that was one of the reasons she could not work

at that time (C.R. II-167). Appellant agreed that when she was interviewed for the Texas Risk
Assessment she had been released on bond when interviewed by Ms. Estes (C.R. II-170).

        As to Ms. Estes' claims that Appellant identified with people involved in criminal activities

over the last few months, Appellant's response was that she had been spent the last few months in the

Harris County Jail. Also the person that had a murder charge was just      a   person she had met in her cell

in the Jail (C.R. II-177   -I79). Appellant   stated she that when the assessment was written she had spent

the previous few months before in      jail surrounded by people who were also charged with criminal

offenses (C.R.   II-179). As far as her criminal    case in Montgomery County being dismissed, she was

notbraggingbutwasjustverythankful(C.R.II-181). Onherbirthdayshefeltteribleabouttheloss

of her friend Savannah and thinks about her every day (C.R. II-183). Appellant agreed thatitwas her

fault, it was an accident and that it was her fault since she was driving (C.R. II-185).



                               SUMMARY OF THE ARGUMEI{T

        Appellant contends that the trial court erred in considering inadmissible extraneous conduct

in determining the sentence for Appellant and the sentence Appellant received constituted cruel and

unusual punishment.


                                         ISSUES PRESENTED
                           APPELLANT'S FIRST POINT OF ERROR

THE TRIAL COI'RT ERRED IN CONSIDERING INADMISSIBLE EXTRANEOUS
CONDUCT IN DETERMINING THE SENTENCE FOR APPELLANT.


            APPELLANT'S SECOND POI}{T OF ERROR
APPELLANT RECEIVED CRUEL AND UNUSUAL PLNISHMENT WHERE THE
RECORD REFLECTS THAT ALTHOUGH SHE WAS ELIGIBLE FOR PROBATION
APPELLANT RECEIVED                   A
                      FOURTEEN YEAR SENTENCE IN T}IE TEXAS
DEPARTMENIT OF CORRECTIONS.
       APPELLANT'S FIRST pOn{T OF ERROR (RE-STATED)
THE TRIAL COURT ERRED IN CONSIDERING INADMISSIBLE EXTRANEOUS
CONDUCT IN DETERMINING THE SENTENCE FOR APPELLANT.


        In Appellantos case the trial court after Appellant's plea of guilty ordered a pre-sentencing

investigation report pursuant to Article 42.12, Section 9 of the Texas Code of Criminal Procedure.

At one point during the hearing when Appellant was being cross-examined by the State, the State was

permitted over objection to go into the facts of   a   prior arrest in Montgomery County, Texas which had

been dismissed. Appellant was required pursuant to her lawyer's advise to refuse to answer any

questions regarding the facts of that case (C.R.   II-126). The Court finally      agreed that the reasons      for

the dismissal of that case contained hearsay but the Court also concluded that the Court was permitted

to consider that case in determining Appellant's sentence as an unadjudicated offense(C.R. II-131).


        When the punishment is to be determined by either         a   judge or the jury Article   37 .07,   Section

3 (a) (1) of the Texas Code of Criminal Procedure provides that the Court or Jury may consider any

other evidence ofan extraneous offense that is shown beyond a reasonable doubt by evidence to have

been committed by the Appellant for which he could be held criminally responsible, regardless                    of

whether he has been previously charged with or finally convicted with the crime or act.


       In Smith v. State,227 5.W.3d,753 (Tex. Crim. App. 2007), the Court of Criminal Appeals

determined that when a person is sentenced by the Court pursuant to a pre-sentencing investigation

Article 37.07, Section 3 (a)(1) of the Texas Code of Criminal Procedure would not apply             as   requiring

extraneous misconduct to be shoum as committed by Appellant with proof beyond              a   reasonable doubt.

However the Court also cautioned that      it would violate due         process for a trial court to consider
 evidence of extraneous misconduct if there was no evidence from any sorrce for which it could be

 rationally inferred that the accused had any criminal responsibility for that extraneous misconduct.


        In this case the evidence offered at Appellant's hearing concluded only that the Appellant had

been charged with possession of a controlled substance in Montgomery County which had been

 dismissed and therefore there was insufficient proof that the Court could make arational finding that

Appellant had committed this offense. Thus there was no basis from which the Court could rationally

 infer that Appellant was responsible for the alleged possession of a controlled substance in

Montgomery County. The State never produced any witnesses or other evidence to show Appellant

 committed the offense in Montgomery County. Therefore the Trial Court erred in concluding that         it

 could consider the charge in Montgomery County in determining the appropriate sentence for

Appellant.


           APPELLANT'S SECOND POINT OF ERROR (RE.STATED)

APPELLANT RECEIVED CRIIEL AND UNUSUAL PUNISHMENT WHERE THE
RECORD REFLECTS THAT ALTHOUGH SHE WAS ELIGIBLE FOR PROBATION
APPELLANT RECEIVED A FOURTEEN YEAR SENTENCE IN THE TEXAS
DEPARTMENT OF CORRECTIONS.


       Appellant understands that failure to raise an 8'h Amendment objection attrialprevents making

any claim on appeal Tex. R. App. 33.1(a). Curry v. State,giO S.W.2d 490, (Tex. Crim. App. 1995).

But Texas Rules of Evidence 1 03 (b) provide that the Court can take note of firndamental error affecting

a substantial right although      it was not brought to the attention the trial court.

       Appellant contends that her sentence was disproportionate to the offense for which she was

charged and violates the   8th   Amendment to the United States Constitution prohibiting cruel and unusual
punishment where the record reflects she received a fourteen year prison sentence from the Court.


        The record reflects that Appellant was eligible for probation and had filed a Motion for

Probation with the Court prior to the PSI hearing (Ts-aa)). Also Appellant agreed that she had pled

guilty to the offense because she was guilty and she was coming to the Court for punishment and

requesting mercy (C.R. II-185).


        A friend of Appellant, Kasey Austin, stated that Appellant had been her best friend and that she

would help Appellant if granted probation by giving her transportation wherever she needed to go and

she would help her   in anyr,vay with classes or   a place   to stay (C.R. lI-73). Appellant stated she had

complete the eleventh grade and had obtained her GED (C.R. II-97) and studied electric engineering

at ITT Tech but had to withdraw due to financial reasons and would re-enroll            if   she was granted

probation in this case (C.R. II- 100). Appellant had received serious injuries from the accident and had

had six surgeries and two screws placed in the middle of her pelvis and another rod in her leg and screw

in her knee (C.R II-113).


       Appellant contends that these factors indicate the fourteen year sentence was grossly

disproportionate to the crime in light of the factthat she had no prior felony convictions and had never

been granted adult probation before. The fact that Appellant was eligible      for probation indicates that

others, accused of the same offense, have been granted probation thus reflecting sentences imposed on

similar cases in Texas or other jurisdictions. Solem v. Helm,463 U.S. 277,103 S.Ct. 3001, 77 L.Ed,.

2d 637 (1e83).


       This Court should reverse Appellant's conviction and remand the case for fuither proceedings.

Tex. R. App.P. 43.2(d),4a.2@) (VemonPhamp.2014),Merazv. State 785 S.W.2d 146 (Tex. Crm.
App. 1990).


                                       PRAY FOR RELIEF

        V/HEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable Court to consider

each and every point of error raised herein, to reverse Appellant's conviction, and to remand for further

proceedings as the law and justice demands.


                                               Respectfully submitted,




                                              MICHAEL P. FOSHER
                                              ATTORNEY AT LAW
                                              440 Louisiana, Suite 1200
                                              Houston, Texas 77002
                                              713-22r-1810
                                              TBA#: 07280300
                                              Email : michael@fosherlaw. com
                                              ATTORNEY FOR APPELLANT


                             CERTIFICATE OF COMPLIANCE

       I hereby certify that pursuant to Texas Rule of Appellate Procedure 9.4 (i) (3), the foregoing
Appeal contains 3,119 words.




                                              MICHAEL P. FOSHER
                              CERTIFICATE OF SERVICE

       This will certifr that a copy of the foregoing motion was served upon Alan Curry,
curry_alan@dao.hctx.net, District Attorney of Harris County, Appellant Division, 1201 Franklin,
Houston, Texas 77002, f,acsimile no.713-755-5809 at the time of filing as per local rule.




                                          MICHAEL P. FOSHER




                                              10
