                                                                             ACCEPTED
                                                                         12-15-00109-CR
                                                            TWELFTH COURT OF APPEALS
                                                                          TYLER, TEXAS
                                                                   10/15/2015 7:22:34 PM
                                                                               Pam Estes
                                                                                  CLERK




              CAUSE NO. 12-15-00109-CR               FILED IN
                                              12th COURT OF APPEALS
                                                   TYLER, TEXAS
                                              10/15/2015 7:22:34 PM
              IN THE 12th COURT OF     APPEALS       PAM ESTES
                                                       Clerk
                         OF TEXAS



                  LEOPOLDO TOVAR
                                             Appellant,

                             vs.

                 THE STATE OF TEXAS,
                                             Appellee.


      APPEALING THE TRIAL COURT ACTION, CAUSE NO. 30489
    ISSUANCE OF PUNISHMENT, FROM THE 3RD DISTRICT COURT
                 OF ANDERSON COUNTY, TEXAS
         HONORABLE DEBORAH OAKS EVANS, PRESIDING



                  APPELLANT’SBRIEF
                                   STEPHEN EVANS
                                   SBN: 06717580

NO ORAL ARGUMENT REQUESTED         LAW OFFICE OF STEPHEN EVANS
                                   1000 NORTH CHURCH
                                   P.O. BOX 754
                                   PALESTINE, TEXAS 75802
                                   903-723-3334 Fax: 903-723-0124

                                   ATTORNEY FOR APPELLANT
                           IDENTITY OF PARTIES AND COUNSEL



The parties to the trial     Leopoldo Tovar                          Defendant
court’s judgment are:
                              The State of Texas                     Prosecution


Trial counsel were:          Scott Nicholson                         Defense Counsel
                             Attorney at Law
                             901 N. Perry St
                             Palestine, Texas 75801

                             Anderson County District Attorney       State
                             Anderson County Courthouse
                             Palestine, Texas 75801
                             903-723-7403

Appellate counsel are:       Stephen Evans                           Appellant
                             1000 N. Church
                             P.O. Box 754
                             Palestine, Texas 75802
                             903-723-3334 Fax: 903-723-0124
                             Email: sevanslaw@aol.com

                             Allyson Mitchell                         State of Texas
                             Anderson County District Attorney
                             Anderson County District Attorney’s Office
                             Appellate Section
                             Address above




PRESDING JUDGE IS UNRELATED TO APPELLANT COUNSEL




                                              i
                                         TABLE OF CONTENTS
                                           ....................................... i

Identity of Parties and Counsel.
                       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities..
                                             . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Constitutions, Codes and Statutes..
                           .............................................v
Statement of the Case..
                     ................................................ 1
Issues Presented..
                       .............................................. 2
Statement of Facts...
                                   ........................................ 3
Summary of the Arguments..
                     .................................................4
Notation Glossary.
                                               ...................................5
Points, Arguments, and Authorities..
                       .............................................. 5
Point of Error No. 1..
        ......................................................... 8
Prayer.
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                          ii
                                   INDEX OF AUTHORITIES


United States Court Cases

Harmelin v. Michigan, 501 U.S. 957 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Jackson v. Virginia, 443 U.S. 307, (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Solem v. Helm, 463 U.S. 277, (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6



Texas Court Cases

Alberto v. State, 100 S.W.3d 481, (Tex.App.-Texarkana 2003, no pet.).. . . . . . . 6

Cienfuegos v. State, 113 S.W.3d, (Tex.App.-Houston [1st Dist], pet. ref’d).. . . . . 6

Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004).. . . . . . . . . . . . . . . . . . . 6




                                                   iii
Constitutions, Codes and Statutes
                           ......................................
U.S. Const. Amend VIII.                                            6
                             .....................................
Tex. Const. art. I, sec. 13.                                       6
                               ...................................
Tex. Crim. Proc. art. 42.12..                                      5




                                     v
                            STATEMENT OF THE CASE
This is a direct appeal of sentence on a single felony count, derived from a motion

to revoke probation. The Appellant plead true to certain counts, and then hearing

was conducted in regard to the pending motion. After hearing to the trial court, the

presiding judge found the allegations with the exception of Allegation No. 1, as listed

in the motion, “True”, and then the Appellant was sentenced by the presiding judge,

receiving 10 years TDCJ-ID. All appropriate notices of appeal, record, and other

statutory requisites of appeal were timely filed and jurisdiction is before this court

for review of the trial court conduct. Appellant is appealing the resulting sentence

presented.




                                          v
                      ISSUES PRESENTED




POINT OF ERROR ONE:

    THE SENTENCE ISSUED BY THE TRIAL COURT W AS
    DISPROPORTIONATE TO THE FACTS OF THE CASE, RESULTING IN A
    CRUEL AND UNUSUAL PUNISHMENT ASSESSED.




                             1
                             STATEMENT OF FACTS



      This case involves a motion to revoke probation, which was originally the

issued sanction for the offense of Driving While Intoxicated, 3rd or More, committed

on or about the 22nd day of January, 2011.       The Appellant received a 10 year

probated sentence, which was the subject of this motion to revoke. Appellant plead

true to the allegations cited in the Motion to Revoke, but for Allegation No. 1. The

trial court conducted hearing on the matter, and after receiving testimony from both

the State and Defense, found the allegations true, but for Allegation No. 1.

(Judgment)    The trial court issued sentence of 10 years TDCJ-ID, with certain time

credit as captioned in the judgment.   Appellant presents argument herein that the

sentence imposed was excessive and that the matter should be remanded for

reconsideration.




                                         2
                      SUMMARY OF THE ARGUMENTS



POINT OF ERROR ONE:

    The evidence presented by the state during the motion hearing failed to

    provide factually and constitutionally sufficient support for the sentence of the

    trial court.




                                        3
                   NOTATION GLOSSARY

R.R. .............................. Reporter’s Record

C.R. .............................. Clerk’s Record




                                  4
                     POINTS, ARGUMENTS, AND AUTHORITIES

 THE SENTENCE ISSUED BY THE TRIAL COURT WAS DISPROPORTIONATE
TO THE FACTS OF THE CASE, RESULTING IN A CRUEL AND UNUSUAL
PUNISHMENT ASSESSED.
                                           I.

         As shown by the record, ( R.R., Vol. 1, pg. 11), the Appellant entered a

plea of “True” to all of the allegations contained in the subject Motion to Revoke,

but for Allegation No. 1, which was a new unadjudicated offense. The trial court

heard evidence from the State in support of its motion and the sought sanction,

as well as evidence presented by the Appellant in regard to his personal

character, facts of income and support, as well as his general demeanor and

behavior while on probation. Upon the conclusion of the evidence, the Trial

Court found the plead allegations true, revoking the probation, and issuing

sentence of 10 years, TDCJ-ID. Admittedly, the sentence issued by the trial

court was well within that statutory range. However, the Appellant would submit

that the sentence should be subject to review, in that the evidence submitted

during the punishment phase of trial would strongly support the imposition of

community supervision, being deferred adjudication, as was within the realm of

options available to the court in this circumstance. Tex.Code Crim. Proc. art.

42.12.
                                           5
   A reasonable review of the imposed sentence would seem to show that the

sentence is without reproach as it was within the statutory parameters, but still

subject to a standard of review as to sufficiency under Jackson v. Virginia, 443

U.S. 307, (1979), and followed under this State’s holdings such as Zuniga v.

State, 144 S.W.3d 477 (Tex.Crim.App.,2004). A reviewing court should make a

determination as to whether the evidence submitted supports the sentence

imposed. Here, the trial court was provided with insufficient evidence to support

the finding of a new criminal offense, by even the applicable standard of a

preponderance of the evidence, and the Appellant presented witnesses

supporting that the trial court would have been better advised to issue

modification of the probation at worst. ( R.R., Vol. 1, Pg 52 thru 94.)

     The adequate proportionality of an imposed sentence, as governed by the

8th Amend. U.S. Const., and Art. 1, Sec. 13 of the Texas Constitution, has been

developed through the holding authored in Solem v. Helm, 463 U.S. 277 (1983),

Harmelin V. Michigan, 501 U.S. 957 (1991), Alberto v. State, 100 S.W.3d 481,

(Tex.App.-Texarkana 2003, no pet.), and generally Cienfuegos v. State, 113

S.W.3d 481 (Tex.App-Houston [1st Dist.], 2003, pet. ref’d).


       While the foregoing citations do express in their holdings that due

deference is accorded to the trial court in its sentencing result, such action is not

wholly immune from review by an appellate court where there are significant


                                           6
factors present that would demonstrate that the resulting sentence was in fact

disproportionate to the facts of the case and the evidence submitted. A threshold

comparison of the gravity of the offense against the severity of the sentence

should be conducted, to pursue a finding as to whether the sentence is in fact

disproportionate given the facts of the case and the evidence presented during

the trial of the matter. The evidence presented did not exhibit any true threat to

the community that would merit incarceration, but rather would have maintained a

productive member of that community, contributing to the welfare of his family

and dependents as well.


Appellant presents that the option of modified community supervision was cast

aside without due and appropriate consideration, and that such was tantamount to

an abuse of discretion by the trial court, which should merit the entry of an order to

vacate the imposed sentence, and remand for retrial with instructions to give

adequate review of the evidence in support of the imposition of modified

community supervision.




                                          7
                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this Court vacate the sentence of the trial court and remand for new trial, and

for such other and further relief as he may show himself deserving, at law and in

equity.

                                              Respectfully submitted,


                                              /s/ Stephen Evans

                                              STEPHEN EVANS
                                              LAW OFFICE OF STEPHEN EVANS
                                              1000 NORTH CHURCH
                                              P.O. BOX 754 PALESTINE,
                                              TEXAS 75802
                                              903-723-3334 FAX: 903-723-0124
                                              SBN: 06717580
                                              ATTORNEY FOR APPELLANT




                                          8
                           CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief has been forwarded via electronic
email attachment delivery, to the office of the Anderson County District Attorney,
on the 15th day of October, 2015.

                                              /s/ Stephen Evans

                                              STEPHEN EVANS




                         CERTIFICATE OF COMPLIANCE

      This is to certify that the foregoing brief is in compliance with the
Texas Rules of Appellate Procedure, (2013), in the word content of the brief,
with such brief containing 1,329 words.



                          October 15, 2015

                                       /s/ Stephen Evans

                                       Stephen Evans




                                          9
