                                                                             ACCEPTED
                                                                         12-15-00187-CR
                                                            TWELFTH COURT OF APPEALS
                                                                          TYLER, TEXAS
                                                                   10/30/2015 1:58:41 PM
                                                                               Pam Estes
                                                                                  CLERK




                                                         FILED IN
                                                  12th COURT OF APPEALS
                 CASE NO. 12-15-00187-CR               TYLER, TEXAS
                                                  10/30/2015 1:58:41 PM
           IN THE TWELFTH COURT OF APPEALS               PAM ESTES
                     TYLER, TEXAS                          Clerk


         CHRISTOPHER JERMAINE BIRDOW, Appellant

                             Vs.

              THE STATE OF TEXAS, Appellee

                    On Appeal from the

                349TH Judicial District Court,
                  Anderson County, Texas

                  (Trial Court No. 30761)

              Honorable BASCOM BENTLEY, III

                   BRIEF OF APPELLANT

                    MARK W. CARGILL
                     TBC# 00787201
                        701 N. Elm
                  Palestine, Texas 75801
                      903/729-8011

                COUNSEL FOR APPELLANT

                ORAL ARGUMENT WAIVED




1|Page
                                   PARTIES

CHRISTOPHER JERMAINE BIRDOW, APPELLANT

Mark W. Cargill
Attorney for Defendant/Appellant
701 N. Elm
Palestine, Texas 75801

Allison Mitchell
District Attorney
500 N. Church Street
Palestine, Texas 75801




2|Page
                              TABLE OF CONTENTS
                                                                 Page
Table of Contents…………………………………………………………………………………………..            3

Index of Authorities………………………………………………………………………………………..          4

Statement of the Case…………………………………………………………………………………...          5

Point of Error Number One………………………………………………………………………             6

Statement of Facts………………………………………………………………………………………..            6

Point of Error Number One Restated…………………………………………………………...      6

Summary of Argument (Point of Error Number One)………………………………...   6

Argument ……………………………………………….……………………………………………………..               6, 7, 8

Prayer……………………………………………………………………………………………………………                  9

Certificate of Service…………………………………………………………………………………...         10




3|Page
                                    INDEX OF AUTHORITIES

CONSTITUTIONS

        U.S. CONST. amend VIII……………………………………………………………………………..                         6
        TEX. CONST. art. I sec. 13 ……………………………………………………………………….                       6

STATUTES

        Tex. Pen. Code Ann. Sec. 12.34……………………………………………………………….                       8

CASES

Federal

        Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,
        115 L. Ed. 2d 836 (1991)                                                      7

        McGruder v. Puckett, 954 F. 2d 313 (5th Cir.), cert. denied, 506 U.S. 849,
        113 S. Ct. 146, 121 L. Ed. 2d 98 (1992)                                       7

        Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)         7

State

        Davis v. State, 905 S.W. 2d 664 (Tex. App – Texarkana 1995, pet. ref’d)       7

        Dunn vs. State, 997 S.W. 2d 885 (Tex. App. – Waco 1999, pet. ref’d)           7

        Hernandez v. State, 10 S. W. 3d 812 (Tex. App. – Beaumont 2000, pet. ref’d)   7

        Hicks v. State, 15 S.W. 3d 626 (Tex. App. – Houston [14th dist. ] 2000,
        pet ref’d)                                                                    7

        Jackson v. State, 989 S.W. 2d 842 (Tex. App. – Texarkana 1999, no pet.)       8

        Lackey v. State, 881 S.W. 2d 418 (Tex. App. – Dallas 1994, pet ref’d)         7

        Lilly v. State, 365 S.W.3d 321 (Ct of Crim Appeals, April 18, 2012)           8,9

        Matthews v. State, 918 S.W. 2d 666 (Tex. App. – Beaumont 1996, pet ref’d)     7

        Puga v. State, 916 S.W. 2d 547 (Tex. App. – San Antonio 1996, no pet.)        7

        Simmons v. State, 994 S.W. 2d 11 (Tex. App. – Tyler 1996, pet. ref’d)         7

        Sulivan v. State, 975 S.W.2d 755 (Tex. App. – Corpus Christi 1998, no pet.)   7




4|Page
                               CASE NO. 12-15-00187-CR

                          IN THE TWELFTH COURT OF APPEALS
                                    TYLER, TEXAS

                       CHRISTOPHER JERMAINE BIRDOW, Appellant

                                           Vs.

                             THE STATE OF TEXAS, Appellee

                                  On Appeal from the

                              349TH Judicial District Court,
                                Anderson County, Texas

                                (Trial Court No. 30761)

                            Honorable BASCOM BENTLEY, III

                                 BRIEF OF APPELLANT

                                  MARK W. CARGILL
                                   TBC# 00787201
                                      701 N. Elm
                                Palestine, Texas 75801
                                    903/729-8011

                              COUNSEL FOR APPELLANT

                              ORAL ARGUMENT WAIVED


TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, CHRISTOPHER JERMAINE BIRDOW, the Appellant, and files

this his Brief of Appeal in the above-entitled and numbered cause.



                            STATEMENT OF THE CASE

       On April 23, 2012, Defendant, CHRISTOPHER JERMAINE BIRDOW, plead on 2

counts. Count 1, engaging in organized criminal activity, received 10 years TDCJ,

probated with community supervision for 10 years and a $10,000.00 fine, of which

$9,000.00 was probated.     As for Count 2, Manufacturing and Delivery of a


5|Page
Controlled Substance PG 1 > = 4g <200g., he received deferred adjudication. State

of Texas filed a motion to revoke community supervision and a motion to proceed

with adjudication. A hearing was had on July 10, 2015, concerning the State’s

Motion to Revoke Community Supervision and adjudication.



                                 ISSUE PRESENTED

                         POINT OF ERROR NUMBER ONE

       The trial court errored in rendering judgment its verdict concerning count 2

and sentencing Appellant to 40 years incarceration because that sentence was

grossly disproportionate when considered in light of other sentences for the same

offense and in light of the facts and circumstances which constituted the offense.


                              STATEMENT OF FACTS


       The court considered all testimony of the revocation hearing of July 10, 2015.


                   POINT OF ERROR NUMBER ONE RESTATED

       The sentence is excessive and is grossly disproportionate to the crime

committed.

                            SUMMARY OF ARGUMENT

       Each defendant is guaranteed under the constitution of punishment free

from cruel and unusual treatment. To sentence a defendant to a sentence that is

disproportionately high violates the prohibition against cruel and unusual

punishment.



6|Page
                                    ARGUMENT

       Both the United States Constitution and the Texas Constitution prohibit cruel

and unusual punishment. US Const. amend. VIII; Tex. Const. art I sec. 13. Since there

are not any distinctions between the state and federal protections against cruel or

unusual punishment, an appeals court should address such claims together. See

Simmons v. State, 944 S.W. 2d 11, 14 (Tex. App. – Tyler 1996, pet. Ref’d) Davis v.

State, 905 S.W.2d 664, 665 (Tex. App. – Texarkana 1995, pet. ref’d).

       It is possible for a sentence to fall within a permitted punishment range and

yet “run afoul of the Eighth Amendment prohibition on cruel and unusual

punishment. “Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d

637 (1983). The Supreme Court revised the question of disproportionate sentences

in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). In

discussing Harmelin, the Fifth Circuit has stated that “disproportionality survives:

Solem does not.” McGruder v. Puckett, 954 F 2d 313, 316 (5th Cir.), cert. denied 506

U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992). Under McGruder, a court must first

determine whether the sentence is “grossly disproportionate to the offense.”

McGruder, 954 F. 2d at 316. Once the court of Appeals finds the sentence grossly

disproportionate, the court then considers the remaining factors of the Solem test

and compares the sentence received to (1) sentences for similar crimes in the same

jurisdiction and (2) sentences for the same crime in other jurisdictions. Several

immediate Texas courts have analyzed proportionality claims in the manner

recommended by the Fifth Circuit in McGruder. See Hicks v. State, 15 S.W. 3d 626

(Tex. App. – Houston {14th Dist. } 2000, pet. ref’d); Hernandez v. State, 10 S.W. 3d


7|Page
812 (Tex. App. – Beaumont 2000, pet. ref’d); Dunn v. State, 997 S.W. 2d 885 (Tex.

App. – Waco 1999, pet. ref’d) Sullivan v. State, 975 S.W. 2d 755, 757 (Tex. App. –

Corpus Christi 1998, no pet.); Puga v. State, 916 S.W. 2d 547, 549-50 (Tex. App. -

San Antonio 1996, no pet.); Matthews v. State, 918 S.W.2d 666, 668-69 (Tex. App. –

Beaumont 1996, pet. ref’d) an Lackey v. State, 881 S.W. 2d 418, 420-421 (Tex. App. –

Dallas 1994, pet ref’d). The Eighth Amendment proscribes grossly disproportionate

sentences, even sentences that fall within the statutory range of punishment.

Jackson v. State, 989 S. W. 2d 842, 845-46 (Tex. App. – Texarkana 1999, no pet).

        Appellant was on community supervision for the felony offense of

manufacturing and delivery of controlled substance PG 1>= 4 g<200 g.

        Appellant’s community supervision was revoked and sentenced for the

offense of manufacturing and delivery of controlled substance PG 1>= 4 g<200 g the

sentence was grossly disproportionate to the crime. An individual adjudged guilty

of a felony of this degree shall be punished by imprisonment in the institutional

division for any term of not more than 99 years or less than 5 years and in addition

to the imprisonment, may be assessed a fine not to exceed $10,000.00. Tex. Penal

Code.

        The sentence of 40 years incarceration is grossly disproportionate.

        In terms of other manufacturing and delivery of controlled substance PG 1>=

4 g<200 g cases, the facts which made up the gist of the manufacturing and delivery

of controlled substance PG 1>= 4 g<200 g now before this Court, when considered in

conjunction with other testimony, and the fact he originally received deferred




8|Page
adjudication, this Court must conclude that the punishment assessed, the sentence

of 40 years confinement, is grossly disproportionate to the offense committed.

       Accordingly, this Court must proceed to the next two steps in the McGruder

analysis: (1) sentences for similar crimes in the same jurisdiction and (2) sentences

for the same crime in other jurisdictions. Appellant is guilty of the offense charged,

but his punishment is excessive. Punishment for the worst possible manufacturing

and delivery of controlled substance PG 1>= 4 g<200 g cannot exceed a 99 years or

life sentence. Appellant was sentenced to 40 years. It is clear that other much more

serious manufacturing and delivery of controlled substance PG 1>= 4 g<200 g

convictions resulted in significantly less harsh sentences than Appellant received.

       Simply stated, the punishment assessed against Appellant, while legally

within the range of punishment available to the Court, exceed what was right and

fair. Forty years confinement in prison is not proportionate for the offense of

manufacturing and delivering of controlled substance PG 1>=4g<200g in this

situation and under these facts and circumstances. Accordingly, the sentence must

not stand. Appellant is entitled to a new punishment hearing.



                                      PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable

Court sustain the point of error raised hereinabove, and vacate the commitment to

the Texas Department of Corrections Institutional Division remand the case for a

new sentencing hearing.




9|Page
                                     Respectfully submitted,

                                     CARGILL & ASSOCIATES


                             BY:     /s/ Mark W. Cargill
                                     Mark W. Cargill
                                     SBN: 00787201
                                     701 N. Elm
                                     Palestine, Texas 75801
                                     Telephone: 903/729-8011
                                     Facsimile: 903/729-5112

                                     Attorney for Appellant

                              CERTIFICATE OF SERVICE

This is the certify that on October 30, 2015, a true and correct copy of the above and
foregoing document was served on the District Attorney’s Office, Anderson County,
and all other interested parties, by hand delivery, mail, and/or facsimile and regular
mail.


                                     /s/ Mark W. Cargill
                                     Mark W. Cargill

                                     Word Count

On this 30th day of October, 2015, I, Mark W. Cargill, hereby certifies that this brief
has a word count of 1607.


                                     /s/ Mark W. Cargill
                                     Mark W. Cargill




10 | P a g e
