                                                                                    ACCEPTED
                                                                                06-15-00035-CR
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                           7/23/2015 4:18:21 PM
                                                                               DEBBIE AUTREY
                                                                                         CLERK




                                                               FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
                                                        7/23/2015 4:18:21 PM
                             No. 06-15-00035-CR             DEBBIE AUTREY
                                                                Clerk
__________________________________________________________________________

               IN THE SIXTH DISTRICT COURT OF APPEALS
                         AT TEXARKANA, TEXAS
__________________________________________________________________________

                     CEDRIC BERNARD CARLDWELL
                                         Appellant,

                                     v.

                          THE STATE OF TEXAS


                    Appealed from the 124th District Court
                            Gregg County, Texas
__________________________________________________________________________

                        BRIEF OF THE APPELLANT
__________________________________________________________________________

                               Clement Dunn
                           State Bar No. 06249300
                          140 East Tyler, Suite 240
                           Longview, Texas 75601
                          Telephone: 903-753-7071
                             Fax: 903-753-8783




                       ORAL ARGUMENT WAIVED
                        IDENTITY OF PARTIES AND COUNSEL

      Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.

1.     Appellant:      Cedric Carldwell

2.     Appellant’s Trial Counsel:      Clement Dunn
                                       Attorney at Law
                                       140 E. Tyler Street, Suite 240
                                       Longview, TX 75601
                                       TSB No. 06249300

3.     Appellant’s Counsel on Appeal:          Clement Dunn
                                               Attorney at Law
                                               140 E. Tyler Street, Suite 240
                                               Longview, TX 75601
                                               TSB No. 06249300

4.     Attorney for the State:         Zan Brown
                                       Assistant District Attorney, Gregg County
                                       101 East Methvin St., Suite 333
                                       Longview, Texas 75601
                                       TSB No.03205900




                                                 i
                                                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED .                  .......................................................... 1

STATEMENT OF THE FACTS.                            ................................................... 1

SUMMARY OF THE ARGUMENT .                                  ................................................ 2

ARGUMENT ..              .............................................................. 2

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   5

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     5

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                            5




                                                                                      ii
                                          INDEX OF AUTHORITIES

                                                           Cases

Brady v. United States, 397 U.S. 742, 752-753(1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


                                                 Statutes and Codes


Chapter 19, Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Section 3 E 1.1, Federal Sentencing Guidelines Manual.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3




                                             Constitutional Provisions


Eighth Amendment to The United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fourteenth Amendment to The United States Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                             iii
                              STATEMENT OF THE CASE

Offense:       Murder

Verdict:       Guilty; Life confinement - Texas Department of Criminal Justice -
               Institutional Division

Date of Verdict:        November 20, 2014

Trial Court:   124th District Court, Gregg County, Texas.

       This case involves a prosecution for the offense of murder. The Appellant entered a

plea of guilty to the District Court on October 6, 2014. R.R. 3, at 7-14. The Appellant

entered this plea without a plea agreement with the State. Id., at 10. On November 20, 2014,

the District Court held a hearing on sentencing. At the conclusion of that hearing, the

District Court imposed a sentence of confinement for life. R.R. 4, at 31.



                   STATEMENT REGARDING ORAL ARGUMENT

       Believing the instant case contains issues capable of resolution on the basis of the record

and the briefs the Appellant respectfully does not request oral argument.



                                    ISSUE PRESENTED

       The District Court’s imposition of a sentence of life imprisonment violates the

Eighth Amendment and the Fourteenth Amendment to the United States Constitution.



                              STATEMENT OF THE FACTS

       The instant case involves an event that began as an encounter between two people, Huey

Gray and the Appellant, on April 14, 2013. Both had been drinking. They had known each

BRIEF OF APPELLANT, CEDRIC

                                                                                          PAGE 1
other, as both lived in the same area of Longview, Texas. Witnesses stated the two approached

each other. At some point, Mr. Gray, hands to his side, asked the Appellant something to the

effect of “What are you going to do, shoot me?” The Appellant pulled out a handgun, and shot

Huey Gray. The Appellant shot at least four times. See, e.g., R.R. 5, at State’s Exhibits 2, 3.



                             SUMMARY OF THE ARGUMENT

        The Appellant respectfully submits that the imposition of a life sentence violates the

Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the United

States Constitution in light of the Appellant’s plea of guilty.



                                         ARGUMENT

        The Appellant concedes that a life sentence for the offense of murder does not appear

to be disproportionate on its face. This punishment falls within the legislatively prescribed

statutory range for this offense. See: Chapter 19, Texas Penal Code. Murder ranks as one of the

most serious crimes from any perspective. Its legislative classification as a first degree felony

reflects this perspective.

        The Appellant respectfully submits, however, that a life sentence does become a

disproportionate sentence in view of circumstances specific to this case. First, the Appellant

entered a plea of guilty. Second, this demonstrated “acceptance of responsibility” on the part

of the Appellant. The Appellant acknowledges and concedes the novelty of these arguments,

but, respectfully, believes they are entitled to consideration.

        As noted above, the Appellant entered a plea of guilty to the District Court. This



BRIEF OF APPELLANT, CEDRIC

                                                                                         PAGE 2
occurred without a plea agreement .This occurred without a reduction in the charge of murder

itself. In this light, the Appellant truly did “accept responsibility.”

        Acceptance of Responsibility holds an important place in the United States Sentencing

Guidelines, and, by extension, in sentencing decisions in the courts of the United States. Section

3 E 1.1 of the Federal Sentencing Guidelines Manual states:

                        Sec. 3E1.1.     Acceptance of Responsibility

                        (a) If the defendant clearly demonstrates acceptance of responsibility
                        for his offense, decrease the offense level by 2 levels.

                        (b) If the defendant qualifies for a decrease under subsection (a), the
                        offense level determined prior to the operation of subsection (a) is level
                        16 or greater, and upon motion of the government stating that the
                        defendant has assisted authorities in the investigation or prosecution of
                        his own misconduct by timely notifying authorities of his intention to
                        enter a plea of guilty, thereby permitting the government to avoid
                        preparing for trial and permitting the government and the court to
                        allocate their resources efficiently, decrease the offense level by 1
                        additional level.

The Background contained in the Manual reads as follows:

                        Subsection (a) provides a 2-level decrease in offense level. Subsection
                        (b) provides an additional 1-level decrease for a defendant at offense
                        level 16 or greater prior to operation of subsection (a) who both qualifies
                        for a decrease under subsection (a) and has assisted authorities in the
                        investigation or prosecution of his own misconduct by taking the steps
                        specified in subsection (b). Such a defendant has accepted responsibility
                        in a way that ensures the certainty of his just punishment in a timely
                        manner, thereby appropriately meriting an additional reduction.
                        Subsection (b) does not apply, however, to a defendant whose offense
                        level is level 15 or lower prior to application of subsection (a). At
                        offense level 15 or lower, the reduction in the guideline range provided
                        by a 2-level decrease in offense level under subsection (a) (which is a
                        greater proportional reduction in the guideline range than at higher
                        offense levels due to the structure of the Sentencing Table) is adequate
                        for the court to take into account the factors set forth in subsection (b)
                        within the applicable guideline range.



BRIEF OF APPELLANT, CEDRIC

                                                                                           PAGE 3
       In Brady v. United States, 397 U.S. 742, 752-753 (1970), the United States Supreme

Court identified the preservation of prosecutorial an judicial resources as legitimate state

interests in upholding the constitutional validity of a sentencing scheme that favored guilty

pleas. Beyond judicial economy, courts have also recognized other societal benefits when a

defendant pleads guilty. Among these is sparing the victims of crimes and their families from

further disruption to their lives by avoiding trial. Additionally, the public saves substantial

resources otherwise devoted to a potentially lengthy, and expensive, trial. Also, the offender,

upon entering a guilty plea, is quickly removed from society, eliminating the possibility of

immediate future criminal activity. See, e.g., U.S.S.G., note 10, at 249-50; Brady, supra;

“Remorse, Cooperation, and ‘Acceptance of Responsibility’: The Structure, Implementation,

and Reform of Section 3 E 1.1 of the Federal Sentencing Guidelines” 91 Northwestern Law

Review 1512-14.

       Despite the emphasis on “acceptance of responsibility” by the United States Congress,

and recognition of the importance of guilty pleas by the courts, the Appellant received no real

acknowledgment of his acceptance of responsibility through a plea of guilty in the instant case.

The state courts in Texas do not employ a guideline system; the Appellant readily acknowledges

this. His acceptance of responsibility, however, should be granted at least some consideration

in mitigation of his sentence. The fact that the Appellant nonetheless received a life sentence

presents a violation of both the Eighth Amendment’s prohibition against cruel and unusual

punishment and the Due Process Clause of the Fourteenth Amendment.




BRIEF OF APPELLANT, CEDRIC

                                                                                        PAGE 4
                                          PRAYER

       The Appellant respectfully requests this case be reversed and remanded to the Trial

Court for a new hearing on punishment.

                                                      Respectfully submitted,

                                                      __/s/ Clement Dunn_______________

                                                      140 East Tyler Street, Suite 240

                                                      Longview, Texas 75601

                                                      (903) 753-7071 Fax: 903-753-8783

                                                      State Bar No. 06249300



                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this brief was delivered to the Gregg

County District Attorney’s Office, Longview, Texas on this 23rd day of July 2015.



                                              __/s/ Clement Dunn_______________



                           CERTIFICATE OF WORD COUNT

       I hereby certify that a total of 1438 words are included in this brief.



                                              __/s/ Clement Dunn_______________




BRIEF OF APPELLANT, CEDRIC




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