                                                                              ACCEPTED
                                                                          06-15-00035-CR
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     9/18/2015 9:51:03 AM
                     06-15-00035-CR                                      DEBBIE AUTREY
                                                                                   CLERK

                NO. 06 – 08 – 00080 – CR

                                                        FILED IN
                                                 6th COURT OF APPEALS
     IN THE SIXTH DISTRICT COURT OF          APPEALS
                                                   TEXARKANA, TEXAS
                TEXARKANA, TEXAS                 9/18/2015 9:51:03 AM
                                                     DEBBIE AUTREY
                                                         Clerk

           CEDRIC BERNARD CARLDWELL


                              Appellant,

                             v.

                 THE STATE OF TEXAS

                                  Appellee


On appeal from the 124TH District Court, Gregg County, Texas
               Trial Court Case No. 42773-B


           BRIEF OF THE STATE OF TEXAS


          – ORAL ARGUMENT NOT REQUESTED –

                    CARL DORROUGH
                    GREGG COUNTY DISTRICT ATTORNEY

                          Zan Colson Brown
                          Texas Bar No. 03205900
                          Assistant District Attorney
                          Gregg County, Texas
                          101 East Methvin St., Suite 333
                          Longview, Texas 75601
                          Telephone: (903) 236–8440
                          Facsimile: (903) 236–3701
                                    TABLE OF CONTENTS


INDEX OF AUTHORITIES ...................................................................................2

STATEMENT OF FACTS ......................................................................................3

SUMMARY OF THE ARGUMENT .....................................................................9

ARGUMENT ..........................................................................................................10
1)       The Appellant failed to preserve error...........................................................10

2)       Punishment assessed was neither cruel nor unusual. ....................................11

CONCLUSION AND PRAYER ...........................................................................16
CERTIFICATE OF SERVICE ............................................................................17

CERTIFICATE OF COMPLIANCE ..................................................................17




                                                         1
                         INDEX OF AUTHORITIES


Federal Cases
Harmelin v. Michigan,
   501 U.S. 957, 111 S.Ct. 2680, 115 L. Ed. 2d 836 (1991)      13, 14
McGruder v. Puckett,
   954 F.2d 313 (5th Cir.)                                        14
Solem v. Helm
    463 U.S. 277, 103 S.Ct. 3001, 77 L. Ed. 2d 637 (1983)         13

State Cases
Fierro v. State,
    706 S.W.2d 310 (Tex. Crim. App. 1986)                         11
Harris v. State,
   656 S.W.2d 481 (Tex. Crim. App. 1983)                          12
Henderson v. State,
    617 S.W.2d 697 (Tex. Crim. App. 1981)                         11
Hookie v. State,
   136 S.W. 3d, 671 (Tex. App. –Texarkana 2004, no pet.)          10
Jackson v. State,
   989 S.W.3d 845 (Tex. App.—Texarkana 1999, no pet.)          10, 12
McNew v. State,
   608 S.W.2d 166 (Tex. Crim. App. 1978)                          12
Moore v. State,
   54 S.W.3d 529 (Tex. App. – Fort Worth 2001)                    12
Price v. State,
    35 S. W. 3d, 136 (Tex. App.--Waco 2000)                       12
Williams v. Scott,
    1994 U.S. App. LEXIS 41605 (5th Cir. Tex. Oct. 26, 1994)      14


State Statutes
Tex. Penal Code Ann. § 12.32 and 12.42 (West)                     12

                                       2
                            STATEMENT OF FACTS

      Cedric Carldwell was charged, on July 11, 2013, with shooting Huey Lee

Gray on April 14, 2013. See indictment, CR 24. When apprehended, he admitted

the crime, but claimed self-defense because Gray allegedly called him names,

threatened to choke him, spit in his face, and reached in his clothing as if to draw a

weapon. See offense report, SX2 at 30. At that point, Carldwell told Detective

Cheatham that he had shot Gray. Id.

      The event was witnessed by several people who stated that Gray was not

reaching for a weapon; his arms were at his sides and he had just asked Carldwell,

“What you gonna do, shoot me?” See offense report, SX2 at 29.

      Carldwell eventually pleaded guilty and asked the judge to set his sentence

without the benefit of a plea agreement. See judgment, CR 25-29. After a pre-

sentence investigation report was delivered to the Court, Carldwell’s counsel

argued that by pleading “guilty,” he had saved the victim’s family the anxiety, and

the “emotional roller coaster” of a trial. 4 RR 20. He did not, however, ask for

leniency on that basis. He said that Carldwell was trusting the judgment of the

court and leaving the issue of sentencing in the judge’s “very capable hands,”

without asking for a specific term of years. 4 RR 23. The prosecutor asked for the

maximum sentence, or “life.” 4 RR 27.




                                          3
      Before he accepted the plea of “guilty,” the judge asked the defendant these

questions regarding the range of punishment:

      THE COURT: Now, the offense of murder is a first degree
      felony. But with the enhancement of a prior felony, it makes it a
      first degree enhanced. The range of punishment for this offense
      is from 15 years in prison up to 99 years or life in prison. Any --
      and a fine of up to $10,000. Any sentence I hand down on the
      day of sentencing will have to fall within that range. Do you
      understand that?

      THE DEFENDANT: Yes, sir.

      THE COURT: Also, the offense of murder is what is considered
      an aggravated offense. What that means is that any prison
      sentence you receive, you will have to serve at least one-half of
      that sentence or 30 years, whichever is less. Do you
      understand that?

      THE DEFENDANT: Yes, sir.

      THE COURT: So if I impose a 40-year sentence, you'd have to
      serve at least 20 years before being eligible for parole. If I
      impose a sentence of 60 years or more, you will have to serve
      at least 30 years before being eligible for parole. Do you
      understand that?

      THE DEFENDANT: Yes, sir.

      THE COURT: And eligibility for parole does not guarantee that
      parole will be granted. As I said, this case comes before me on
      what is called an open plea. That means there's no plea
      agreement. I'm going to listen to any and all testimony; I'm
      going to review all of the exhibits that are going to be
      introduced into evidence; I will order what's called a
      presentence investigation. In that, you will meet with the
      probation officer and go over your criminal history, facts and
      other    circumstances     concerning      your   past    history
      circumstances.


                                           4
      I'll consider all of that. I'll consider any and all testimony in the
      punishment phase. I'll listen to the arguments of the State's
      attorney and your attorney.

      But I'm not bound by any of those. The only thing I'm bound by
      is that range of punishment I just gave you, 15 to 99 years or
      life. Do you understand that?

      THE DEFENDANT: Yes, sir.

3 RR 9-10.

After due consideration, the judge pronounced his ruling:

       THE COURT: . . . I have looked at this case and I have
      considered the entire range of punishment.

      I've read the offense report on a couple of occasions,
      looked at all of the exhibits, considered the testimony
      that's been given today. And having read the PSI,
      hopefully I have as clear a picture of who Huey Gray was
      as I do of who Cedric Bernard Carldwell is.

      The facts and circumstances of that night [29] indicate
      two individuals who were drinking, intoxicated probably. I
      don't -- and the facts don't suggest that you set out that
      night premeditated to do anybody harm. That does -- that
      weighs in your favor.

      However, what weighs against you right away on that is
      the fact that you were carrying a firearm. As a five-time
      convicted felon, you weren't supposed to have a firearm,
      so that weighs against you. So that's a factor that I
      considered.

      I considered the testimony of who the victim was, the --
      whether -- whether the person is somebody who has
      contributed to society or somebody who was a drain on



                                         5
society. Every life still needs to be valuable in the eyes of
the law.

Mr. Carldwell, the factors that weigh against you,
however, is your significant criminal history. I have an
individual who was convicted of misdemeanor assault
back in '87, that in and of itself was not a big deal; then a
possession of prohibited weapon in 1990, 5-year
sentence which you didn't even serve basically a year of.

And then we get to the more serious offenses. You have
the theft conviction out of Smith County; you have a theft
conviction out of Gregg County. And then the one that
causes the Court some of the most concern, an
attempted murder case here in Gregg County in 1992,
with a deadly [30] weapon. Then the attempted
kidnapping in 2007 that you got a two-year state jail
sentence. After getting out of there, the violence
continues with an assault causing bodily injury. And here
we are on this case.

And then when you look at the facts of the case, the
offense report, the scientific evidence, witnesses state
that Mr. Gray just held out his hands and said, "What are
you going to do, shoot me?" Yes, you may have been
arguing. But then, looking at the autopsy report, you shot
at least four times, if not five; at least three of those being
in the back.

If you felt threatened, maybe one of them would have
been possibly justified; but four to five shots, at least three
in the back, that calls for the high end of punishment.

Decisions like this are not something that a Court
relishes. I have sat in the back in my office praying and
looking over everything of what is the appropriate
sentence. I have to look at what I think a jury would do,
but by the same token, what in my opinion is justice.




                                  6
      At some point we have to say enough is enough. This is
      at least your third crime of violence, at least your third
      with a firearm. Sometimes doing justice is doing the hard
      thing.

      This is not a sentence that I pronounce very [31] often. I
      don't like doing it. But I believe under the facts and
      circumstances of this case -- yes, you pled "guilty" in front
      of me and saved the taxpayers money and time -- but this
      is one of those cases, when I look at everything together,
      that still the right thing to do, as hard as it is, is to
      sentence you to life in prison with a deadly weapon
      finding.

      Mr. Carldwell, I don't believe that there's any other
      sentence that would be appropriate under the facts and
      circumstances of this case. I know that sentence does not
      bring back Mr. Gray, and I'm sure it does not make your
      family happy, but it is in my opinion what justice is under
      the facts and circumstances of this case.

      That is the sentence of the Court.

4 RR 28-31.

      After that ruling, the court and defense counsel discussed appellate rights

briefly and the court heard an impact statement. 4 RR 32-33. There was, however,

no objection to the ruling of the court, and even though Carldwell filed a motion

for new trial, he did not address the issue of a disproportionate sentence. See

Motion for New Trial, CR 30. A hearing on the motion was set for January 16,

2015, but no record exists that the hearing was held. CR 32. Volume 4 of the

reporter’s record is a transcription of the Sentencing Hearing, Volume 5 is a




                                        7
collection of the exhibits and Volume 6 is a collection of the sealed exhibits

(criminal history of witnesses and victim).

      Following the entry of the ruling on November 21, 2014, Carldwell filed a motion

for new trial on December 19, 2014. CR 26-31. His notice of appeal was filed February

17, 2015. CR 39-40.




                                          8
                         SUMMARY OF THE ARGUMENT

1) The Appellant has failed to preserve error.

2) The punishment assessed was neither cruel nor unusual.

   A. Texas has well-established law that if a sentence is within the statutory limits for
       the crime committed, it is not excessive.

   B. Federal sentencing guidelines do not control state court sentences.

   C. Three factors are considered for disproportionality, with first being threshold:

      (1)    the gravity of the offense relative to the harshness of the penalty,
      (2)    the sentences imposed for other crimes in the jurisdiction, and
      (3)    the sentences imposed for the same crime in other jurisdictions.

   D. Appellant received consideration for his guilty plea.

      (1)    Original indictment alleged two prior offenses.
      (2)    Amended indictment alleged only one.




                                             9
                                    ARGUMENT

      The Appellant failed to preserve error. If the court considers his argument on the

merits, the trial court correctly determined that Appellant pled “guilty” to the charges

alleged in the indictment, and “true” to        the enhancement paragraph, and after

considering Carldwell’s extensive criminal history, he properly sentenced him to life in

prison for murder, and made a finding that he had used a deadly weapon. 4 RR 31.



1) The Appellant failed to preserve error.

      To preserve a complaint for review, an appellant must have presented the

trial court with a timely request, objection, or motion stating the specific grounds

for the ruling ordered. TX R APP Rule 33.1 (a) (1) (A). Carldwell failed to object

when the trial court announced the sentence assessed by the jury. Hence, he

preserved nothing for review. See Hookie v. State, 136 S.W. 3d, 671 (Tex. App. –

Texarkana 2004, no pet.) Jackson v. State, 989 S.W.3d 845 (Tex. App.—

Texarkana 1999) Although Carldwell moved for a new trial and set a hearing on

that motion, the record does not show that a hearing was held or that the motion

was granted.    Therefore, the motion is presumed to have been overruled by

operation of law. Furthermore, that motion for new trial failed to raise any specific

complaint regarding the sentence imposed. A general objection preserves nothing

for review and is insufficient to apprise the trial court of the complaint urged.




                                           10
Fierro v. State, 706 S.W.2d 310, 318 (Tex. Crim. App. 1986); Henderson v. State,

617 S.W.2d 697, 698 (Tex. Crim. App. 1981).

       Carldwell’s attorney did not ask for a specific sentence; instead, he

placed the decision into the trial court’s “very capable hands.” He did mention

that Carldwell’s voluntary plea of guilty saved the court time and money, and

spared the families the hardship of a trial, but did not suggest a lesser sentence

on that basis. 4 RR 19-20. The State asked for a life sentence, based primarily

on his violent criminal history.       4 RR      27.   After the judge reluctantly

sentenced him to life in prison, Carldwell did not preserve error by objecting in

any way—neither at the time nor in his motion for new trial--to the severity of

his sentence. 4 RR 27-31. Cardwell’s sole issue should therefore be rejected

and the sentence affirmed.



2) Punishment assessed was neither cruel nor unusual.

       Even if he had preserved error, his sentence was not excessive.

       A. Texas has well-established law that if a sentence is within the statutory
          limits for the crime committed, it is not excessive.

       The punishment imposed by the judge was within the range allowed by a valid law

for the offense charged, and is therefore not a violation of the prohibition against cruel,

unusual punishment under the U. S. and Texas Constitutions, as alleged by Appellant.

Texas has long held that any punishment assessed within the range authorized by statute



                                            11
is not excessive. See, e.g. Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983);

Price v. State, 35 S. W. 3d, 136,144 (Tex. App.--Waco 2000); Moore v. State, 54 S.W.3d

529 (Tex. App. – Fort Worth 2001); McNew v. State, 608 S.W.2d 166,174 (Tex. Crim.

App. 1978); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App. 1999).

       The punishment imposed in the instant case was life in prison, clearly within the

range of “life or for a term of years, not more than 99 years and not less than 15 years.”

Tex. Penal Code § 12.32 and 12.42 (West). This conviction was for murder, a first degree

felony, enhanced by a 1991 conviction for possession of a prohibited weapon, a second

degree felony.



       B.   Federal sentencing guidelines do not control state court sentences.

   The federal sentencing guidelines relied on by Carldwell are not applicable to this

case; this murder was charged in a state court as an offense against the State of Texas, not

in federal court and not as a federal offense. Carldwell’s counsel has offered no binding

authority for his claim that the sentence was cruel and unusual, or even for his claim that

the federal sentencing guidelines should be applied in a state court.




                                             12
        C.   A reviewing court should three factors for disproportionality, with
             second and third to be considered only if the court finds gross
             disproportionality in the first:
              (1) the gravity of the offense relative to the harshness of the
                  penalty,
             (2) the sentences imposed for other crimes in the jurisdiction, and
             (3) the sentences imposed for the same crime in other jurisdictions.

        A claim under the Eighth Amendment is reviewed in a three-part process.

Solem v. Helm 463 U.S. 277, 103 S.Ct. 3001, 77 L. Ed. 2d 637 (1983). The Solem

Court overturned, as a violation of the Eighth Amendment, defendant's sentence of

life imprisonment without parole. Solem was convicted for writing a bad check for

$100. His prior convictions were for third-degree burglary, false pretenses, grand

larceny, and driving while intoxicated, all of which, the Court noted, "were all

relatively minor. All were nonviolent and none was a crime against a person." Id.

at 103 S. Ct. 3013.

        The Solem Court identified three factors to consider in a review of

proportionality of a sentence: (1) the gravity of the offense relative to the harshness

of the penalty, (2) the sentences imposed for other crimes in the jurisdiction, and

(3) the sentences imposed for the same crime in other jurisdictions. Id. at 103 S. Ct.

3011.

        “Solem must now be filtered through the Court's most recent and, indeed,

most fractured decision on proportionality, Harmelin v. Michigan, 501 U.S. 957,

111 S.Ct. 2680, 115 L. Ed. 2d 836 (1991).” Williams v. Scott, 1994 U.S. App. LEXIS



                                           13
41605 (5th Cir. Tex. Oct. 26, 1994), citing McGruder v. Puckett, 954 F.2d 313, 315

(5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992).

      In Harmelin, the defendant appealed his mandatory life sentence without

parole for possession of more than 650 grams of cocaine. Five Justices held that

the sentence was constitutional, but those five could not agree on the grounds. In

McGruder, the Fifth Circuit Court drew the following conclusion:

     By applying a head-count analysis, we find that seven members of the
     Court [in Harmelin] supported a continued Eighth Amendment guaranty
     against disproportional sentences. Only four justices, however,
     supported the continued application of all three factors in Solem, and
     five justices rejected it. Thus, this much is clear:
     disproportionality survives; Solem does not."

McGruder, 954 F.2d at 316.

      According to Justice Kennedy’s concurrence in Harmelin, a reviewing court

must consider the second and third Solem factors only if they first conclude that the

sentence was “grossly disproportionate” to his offense. Harmelin, 111 S. Ct. at

2707 (Kennedy, J., concurring).

      In the present case, Carldwell was charged with murder. His victim had spit

in Carldwell’s face; Carldwell took out a gun; the victim held his hands out and

asked, “What are you gonna to do, shoot me?” Cardwell then fired several shots at

his victim, at least three of which entered his back and the victim died soon after

arriving at the hospital.




                                         14
      This murder cannot be called a minor, nonviolent, or victimless crime, as the

defendant claimed in Solem. Additionally, Carldwell had been convicted of several

prior felonies, not just the one jurisdictional prior left in the amended indictment.

As recited in the prosecutor’s summation, Cardwell had the following convictions:

carrying a prohibited weapon, theft of property, attempted murder, felony theft,

and attempted kidnapping. SX 4-SX 12; 4 RR 24. The judge then summarized the

more serious ones as follows: theft in Smith County; theft in Gregg County;

attempted murder in Gregg County in 1992, with a deadly weapon; attempted

kidnapping in 2007; and assault causing bodily injury. 4 RR 29-30.

      The senselessness of this crime, plus the increasing violence of his criminal

history, make it obvious that this punishment fit the crime. Appellant cannot make

it past the threshold question: Was the sentence grossly disproportionate to the

offense? No. It is therefore unnecessary to address the second and third factors.

      E.   Appellant received consideration for his guilty plea.
           (1)   The original indictment alleged two prior offenses.
           (2)   The amended indictment alleged only one.


      Appellant claims that he received no benefit for accepting responsibility, waiving

a jury trial and pleading guilty.   (See Appellant’s brief at 4). To the contrary, the

amended indictment shows that he was first charged with two jurisdictional prior

felonies, but that the State dropped the claim of a second prior felony, allowing him to

face a punishment range with a minimum of 15 years instead of 25 years.



                                           15
                           CONCLUSION AND PRAYER

      In conclusion, the Appellant has offered as his only argument—not

preserved—that the Court erred in giving a life sentence. A state district court is

not bound by the federal sentencing guidelines he cites. For Carldwell’s pleading

guilty and not forcing the State to meet its burden of proof in front of a jury, the

State agreed to a lower minimum sentence.            But with his long record of

increasingly violent crimes, Carldwell deserved the maximum sentence he got. His

offense was violent with little or no provocation; the sentence of life was not at all

disproportionate. The State prays that this Court deny Appellant’s point of error and

affirm the conviction and sentence.


                                       Respectfully Submitted,




                                       /s/ Zan Colson Brown
                                       Zan Colson Brown
                                       Texas Bar No. 03205900
                                       Assistant District Attorney
                                       101 East Methvin St., Suite 333
                                       Longview, TX 75601
                                       Telephone: (903) 236–8440
                                       Facsimile: (903) 236–3701




                                          16
                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel of record by e-filing to

      Clement Dunn
      140 East Tyler Street, Suite 240
      Longview, Texas 75601

      clementdunn@aol.com


this 17th day of September, 2015.

                                               /s/ Zan Colson Brown_
                                               Zan Colson Brown
                                               Assistant District Attorney



                        CERTIFICATE OF COMPLIANCE

      I certify that the foregoing document complies with Texas Rules of
Appellate Procedure, Rule 9 (2015) regarding length of documents, in that
exclusive of caption, identify of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix, it
consists of 3,112 words.

                                               /s/Zan Colson Brown
                                               Zan Colson Brown
                                               Assistant Criminal District Attorney




                                          17
