                                                                           ACCEPTED
                                                                      14-14-00585-CR
                                                        FOURTEENTH COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                 2/6/2015 10:13:43 PM
                                                                  CHRISTOPHER PRINE
                                                                               CLERK
                         No. 14-14-00585-CR
                         No. 14-14-00586-CR
                         No. 14-14-00587-CR
                                                       FILED IN
                                                14th COURT OF APPEALS
                    IN THE COURT OF APPEALS         HOUSTON, TEXAS
                      FOURTEENTH DISTRICT       2/6/2015 10:13:43 PM
                        HOUSTON, TEXAS          CHRISTOPHER A. PRINE
                                                         Clerk


                    RYAN VICTOR MOLNOSKEY,
                            Appellant

                                Vs.

                      THE STATE OF TEXAS,
                            Appellee



             ON APPEAL FROM CAUSE NO. 66494, 66495, 71937
      149th JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS
             HONORABLE TERRI HOLDER JUDGE PRESIDING

                    BRIEF FOR THE APPELLANT



Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com

ATTORNEY FOR APPELLANT            ORAL ARGUMENT NOT REQUESTED
DATE: February 6, 2015
                                No. 14-14-00585-CR
                                No. 14-14-00586-CR
                                No. 14-14-00587-CR

                           IN THE COURT OF APPEALS
                             FOURTEENTH DISTRICT
                               HOUSTON, TEXAS


                          RYAN VICTOR MOLNOSKEY,
                                  Appellant

                                         Vs.

                              THE STATE OF TEXAS,
                                    Appellee


                           BRIEF FOR THE APPELLANT



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

RYAN VICTOR MONOSKEY, the Defendant in Cause 66494, 66495, and 71937 in

the 149th JUDICIAL DISTRICT COURT, Brazoria County, Texas, respectfully

submits this brief, and would respectfully show the Court the following:




                                           i
                              TABLE OF CONTENTS

Parties to the Case…………………………………………………………………..…iv

List of Authorities………………………………………………………………………v

Statement of the Case……………………………………………………………….....vi

Statement Regarding Oral Argument………………………………………………....vii

Issues Presented……………………………………………………………………...viii

Summary of the Argument……………………………………………………….…….1

Appellant’s First Point of Error…………………………………………………….…..2

      The evidence is insufficient to support the trial court’s order in Cause 66494

that Appellant reimburse Brazoria County Collections Department for the payment of

counsel appointed on account of Appellant’s indigence.

Appellant’s Second Point of Error…………………………………………….….……8

      There is no basis in the record to support the trial court’s order in Cause 71937

that Appellant pay $294 in court costs in that cause.

Appellants Third Point of Error……………………………………………...….….…10

      If this court finds that the cost bill for the companion cause is a sufficient basis

to support the courts costs in Cause 71937, there is no basis in the record to support a

$70.00 Warrant/Bond fee in Cause 71937.

Appellants Fourth Point of Error.……………………………………………..………12

      The forty-year prison sentence imposed by the trial court in Cause 71937

violated the Eighth Amendment prohibition against cruel and unusual punishment, as

                                            ii
the sentence was grossly disproportionate to the crime.

Conclusion and Prayer…………………………………………………………....…..16

Certificate of Service…………………………………………….................................17

Certificate of Word Count…………………………………...………………..………17

Appendix……………………………………………………………………….……..18

      Judgment (Cause 6694)

      Affidavit of Indigence (Cause 71937, Dated November 5, 2013)

      Notice of Appointment for Perry Stevens

       Affidavit of Indigence (Cause 66495/ 66494 / 71937, Dated July 5, 2014)




                                          iii
                               PARTIES TO THE CASE

APPELLANT:                RYAN VICTOR MOLNOSKEY
Attorney for Appellant at Trial:

             Name:         Robert D. Miller
             SBN:          24049278
             Address:      1346 Broadway
                           Pearland, Texas 77581

Attorney for Appellant on Appeal:
             Name:       Joseph Kyle Verret
             SBN:        24042932
             Address:    The Law Office of Kyle Verret, PLLC
                         1200 Broadway, Suite 2743
                         Pearland, Texas 77584
             Phone:      281-764-7071
             Fax:        281-764-7071
             Email:      kyle@verretlaw.com

APPELLEE:                  THE STATE OF TEXAS

Attorneys for the State at Trial:

             Name:         Brian J. Hrach
             SBN:          24050787
             Address:      Brazoria County Criminal District Attorney
                           111 East Locus Street, Suite 408A
                           Angleton, Texas 77515

Attorney for the State on Appeal:

             Name:         Jeri Yenne
             SBN:          04240950
             Name:         David Bosserman
             SBN:          02679520
             Address:      Brazoria County Criminal District Attorney
                           111 East Locust Street, Suite 408A
                           Angleton, Texas 77515
             Phone:        979-864-1230
             Fax:          979-864-1525

                                           iv
                             LIST OF AUTHORITIES

Constitutional Provisions

U.S. CONST. amend. VIII……………………………………………………………12

Statutes

Tex. Code Crim. Proc. Ann. Art. 26.04(Lexis current through 2013 3d C.S.)……….2,6

Tex. Code Crim. Proc. Ann. Art. 26.05(Lexis current through 2013 3d C.S.)……..2,3,6

Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(2) (Lexis current through 2013 3d

     C.S.)………………………………………………………………………….9,10

Tex. Code Crim. Proc. Ann Art. 103.001 (Lexis current through 2013 3d C.S.)………7

Tex. Gov’t Code Ann. §508.145 (Lexis current through 2013 3d C.S.)……………...14

Appellate Court Decisions

Adams v. State, 431 S.W.3d 832, 834 (Tex. App. -- Houston [14th Dist.] 2014, no

     pet.)……………………………………………………..……………………...7, 9

Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App. Houston [14th Dist.] 2002)….….13

Barrera v. State, 291 S.W.3d 515, 518 (Tex. App. -- Amarillo 2009, no pet.)…………6

Ewing v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003)…...11

Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014)……………………...…..,7,8

Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2013)…………………2,4-6

Simmang v. State, No. 04-09-00563-CR at 7-10, 2010 Tex. App. LEXIS 4332 (Tex.

     App. -- San Antonio June 9, 2010, pet. ref’d) (mem. op., not designated for

     publication)……………………………………………………………………...14

                                          v
                            STATEMENT OF THE CASE

       The Appellant was indicted for the offense of Assault Public Servant in Cause

66494 and Harassment of Public Servant in Cause 66495 by two separate indictments

on November 17, 2011. (C.R. 66494 at 5; C.R. 66495 at 5). Per a plea bargain

agreement, Appellant entered a plea of guilty to the charged offenses on April 16, 2012

and was ordered to serve a five-year term of deferred adjudication. (C.R. 66494 at 6-

7; C.R. 66495 at 6-7).

      On December 6, 2013, the State filed a motion to adjudicate guilt in each cause

against Appellant alleging multiple violations of probation, including a new law

violation of injury to a child. (C.R. 66494 at 14-16; C.R. 66495 at 14-16).         On

November 21, 2013, Appellant was also indicted in Cause 71937 for the first-degree

injury to a child allegation. (C.R. 71937 at 5).

      Defendant entered a plea of guilty to the indictment and requested the trial court

to sentence him contemporaneously with the pending motions to adjudicate guilt. (2

R.R. at 4, 8). On June 27, 2014, Appellant entered a plea of true to all of the

allegations in the State’s motion to adjudicate guilt and proceeded to a hearing before

the trial judge without an agreed recommendation. (C.R. 66494 at 17-18; C.R. 66495

17-18; R.R. at 4-5).

      In cause numbers 66494 and 66495, the trial court adjudicated Appellant guilty

of the charged offenses and sentenced Appellant to 10 years confinement in the Texas

Department of Criminal Justice. (C.R. 66494 at 17; C.R. 66495 at 22). In cause

                                            vi
71937, the trial court sentenced Appellant to 40 years confinement in the Texas

Department of Criminal Justice. (C.R. 71937 at 30).

      As these three causes were tried together on punishment, Appellant presents his

complaints on appeal in all three causes in this one brief.

                STATEMENT REGARDING ORAL ARGUMENT

      Appellant does not request oral argument.




                                            vii
                                ISSUES PRESENTED
Appellant’s First Point of Error:

      The evidence is insufficient to support the trial court’s order in Cause 66494 that

Appellant reimburse Brazoria County Collections Department for the payment of

counsel appointed on account of Appellant’s indigence.

Appellant’s Second Point of Error:

      There is no basis in the record to support the trial court’s order in Cause 71937

that Appellant pay $294 in court costs in that cause.

Appellant’s Third Point of Error:

      If this court finds that the cost bill for the companion cause is a sufficient basis

in the record to support the courts costs in Cause 71937, there is no basis to support a

$70.00 Warrant/Bond fee in Cause 71937.

Appellant’s Fourth Point of Error:

      The forty-year prison sentence imposed by the trial court in Cause 71937

violated the Eighth Amendment prohibition against cruel and unusual punishment, as

the sentence was grossly disproportionate to the crime.




                                           viii
                         SUMMARY OF THE ARGUMENT

      The evidence is legally insufficient to support the trial court’s order that

Appellant reimburse Brazoria County for the payment of Appellant’s court appointed

counsel. Appellant was indigent at the time his trial counsel was appointed and

remained indigent throughout the proceedings in this matter. As established by the

Appellant’s affidavit, Appellant had been unemployed for two years at the time of the

trial court’s order. He had neither income nor assets.

      There is no basis in the record in Cause 71937 to support the trial court’s

imposition of $294.00 in court. If this court finds that there is a basis in the record for

the imposition of court costs in Cause 71937, there is no basis in the record for the

$70.00 Warrant / Bond fee in that cause.

      The trial court’s forty-year prison sentence for first-degree injury to a child in

Cause 71937 was grossly disproportionate to the crime charged.




                                            1
                     APPELLANT’S FIRST POINT OF ERROR

      The evidence is insufficient to support the trial court’s order in Cause 66494

that Appellant reimburse Brazoria County Collections Department for the payment of

counsel appointed on account of Appellant’s indigence.

Standard of Review and Applicable Law

      An appellate court reviewing an order to repay court appointed attorney’s fees

reviews the record to determine whether there is sufficient evidence to support the

order. Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2013). Evidentiary

sufficiency “is measured by viewing all of the record evidence in the light most

favorable to the verdict.” Id. at 557. Ordinarily, sufficiency of the evidence may be

raised for the first time on appeal, without an objection at the trial court level. Mayer,

309 S.W.3d at 556.

     A trial court’s authority to order that defendant repays attorney’s fees as court

costs after a conviction stems from Tex. Code Crim. Proc. Ann. Art. 26.05(Lexis

current through 2013 3d C.S.). Once a defendant has been found to be indigent, the

defendant is “presumed to remain indigent for the remainder of the proceedings in the

case unless a material change in the defendant’s financial status occurs.” Tex. Code

Crim. Proc. Ann. Art. 26.04(p)(Lexis current through 2013 3d C.S.). The trial court

may only order that a defendant repay his court appointed attorney’s fees,

       [i]f the court determines that a defendant has financial resources that enable
       him to offset in part or in whole the costs of the legal services provided,
       including any expenses and costs, the court shall order the defendant to pay
       during the pendency of the charges or, if convicted, as court costs the amount
                                            2
      that it finds the defendant is able to pay.
Tex. Code Crim. Proc. Ann. Art. 26.05(g)(Lexis current through 2013 3d C.S.).

Relevant Facts

      Appellant was appointed trial counsel, Mr. Perry Stevens, on December 16,

2013. (Supp. C.R. 66494 at 5). According to the notice of appointment, Appellant

was in jail at the time of appointment. (Supp. C.R. 66494 at 5). Mr. Stevens withdrew

as counsel, and new trial counsel, Mr. Robert Miller, was appointed on January 17,

2014. (Supp C.R. 66494 at 12). After trial, the trial court ordered Appellant to repay

$2,850.00 in attorney’s fees in Cause 66494. (C.R. 66494 at 17).

      There is no affidavit of indigence in the record in Cause 66494 that was

completed prior to the appointment of trial counsel. While there is no affidavit of

indigence in Cause 66494, there was one filed in Cause 71937. (Supp. C.R. 71937 at

19-23). The State’s motions to adjudicate guilt in Causes 66494 and 66495 were not

filed until after the initial appointment of Appellant’s trial counsel. Counsel was

appointed on November 5, 2013. (Supp. C.R. 71937 at 6). The motions to adjudicate

guilt were filed on November 21, 2013. (C.R. 66494 at 14-16; C.R. 66495 at 14-16).

Trial counsel was then appointed to the revocation cases as well. (Supp. C.R. 66494 at

5; Supp. C.R. 66495 at 4).

      In this November 5 affidavit, Appellant stated that he was presently

incarcerated. (Supp. C.R. 71937 at 19). He had been unemployed for one month after

having on and off work at approximately $25 an hour for the previous eight months.

(Supp. C.R. 71937 at 20). He had no income. (Supp. C.R. 71937 at 21). His monthly
                                          3
expenditures were $240 for childcare, $450 for school, $55 for probation fees, and $27

every other month for other probation costs. (Supp. C.R. 71937 at 20). He had no

property or other assets and lived with his in-laws. (Supp. C.R. 71937 at 21).

      After being convicted, Appellant completed another affidavit of indigence.

(C.R. 66494 at 26-29). In the second affidavit, completed July 15, 2014, Appellant

stated that he had been unemployed for two years, since November 2013. (C.R. 66494

at 35). He was incarcerated in the county jail. (C.R. 66494 at 26). He had no income,

no assets, and no debt. (C.R. 66494 at 27-28). He stated on the affidavit that he lived

with his dad or Nadia Baldez, his girlfriend. The court found Appellant to be indigent

and appointed the Appellant counsel on appeal. (C.R. 66494 at 24-25, 37).

Analysis

      There is no evidence supporting the trial court’s order that Appellant repay his

court appointed attorney’s fees. While in jail, Appellant was appointed trial counsel in

this cause, and the related causes. (Supp. C.R. 66494 at 5,12; Supp. C.R. 66495 at

4,11; Supp. C.R. 71937 at 6,11). After Appellant was convicted, the trial court ordered

that he repay attorney’s fees in the amount of $2,850.00. (C.R. 66494 at 17).

      The facts related to the application for a court appointed attorney and the trial

court’s order to repay attorney’s fees are almost identical between Mayer v. State and

Appellant’s case. See Mayer, 309 S.W.3d 552. In Mayer, the defendant filed an

Affidavit of Financial Status including “a request for a court appointed attorney to

represent him because he did not have the financial ability to hire his own attorney.”

                                           4
Mayer, 309 S.W.3d at 554.         The affidavit stated that he was unemployed and

supporting himself on government benefits. Id. After he was convicted, the defendant

filed a pro se notice of appeal and an affidavit of financial status again requesting

appointed counsel. Id. There was no evidence in the record in Mayer that supported

the trial court’s order that the defendant repay the court appointed attorney’s fees. Id.

at 556.

      Appellant was found to be indigent at the inception of this case and was

appointed a court appointed attorney to represent him at trial on the State’s motion to

adjudicate guilt. (Supp. C.R. 66494 at 5,12). Appellant stated in his initial affidavit of

indigence that he was unemployed and had no income. (Supp. C.R. 71937 at 20-21).

He had no property or other assets. (Supp. C.R. 71937 at 21).

      After being convicted, Appellant completed another affidavit on July 15, 2014.

(C.R. 66494 at 26-29). In the second affidavit, the Appellant stated that he had been

unemployed for two years. (C.R. 66494 at 35). He was incarcerated in the county jail.

(C.R. 66494 at 26).     By the time the trial court ordered that Appellant repay his

attorney’s fees, Appellant had been in jail for eight months waiting for the hearing on

this matter.   (3 R.R. at 58, 84). He had no income, no assets, and no debt. (C.R.

66494 at 27-28). The court found the Appellant to be indigent and appointed the

Appellant counsel on appeal. (C.R. 66494 at 24-25, 37). As in Mayer, there is no

evidence in the record to support the trial court’s order that Appellant repay his court

appointed attorney’s fees.

                                            5
      Appellant was found to be indigent in November 2013, and is presumed to

remain indigent. Tex. Code Crim. Proc. Ann. Art. 26.04(p). The trial court may only

order a defendant to repay his court appointed attorney if “the court determines that a

defendant has financial resources that enable him to offset in part or in whole the costs

of the legal services provided.” Tex. Code Crim. Proc. Ann. Art. 26.05(g). A court’s

finding that a defendant has such financial resources that would enable him to offset

the cost of legal services provided must be supported by evidence in the record.

Barrera v. State, 291 S.W.3d 515, 518 (Tex. App. --Amarillo 2009, no pet.). There is

no evidence in the record to support a finding that the Appellant has “financial

resources that enable him to offset in part or in whole the costs of the legal services

provided.” As such, the evidence supporting the court’s order that Appellant repay his

is legally insufficient and has no basis in the record.

      The court of appeals in Mayer reformed the trial court’s judgment to delete the

paragraph ordering the defendant to repay attorney’s fees. Mayer v. State, 274 S.W.3d

898, 901-02 (Tex. App. Amarillo 2008, pet. granted.). The Court of Criminal Appeals

found this to be the proper remedy. Mayer, 309 S.W.3d at 557.

      The Appellants prays that this Court find that there is no evidence supporting

the trial court’s order that the Appellant repay his court appointed attorney fees and

reform the judgment to remove the order.




                                             6
                   APPELLANT’S SECOND POINT OF ERROR

      There is no basis in the record to support the trial court’s order in Cause 71937

that Appellant pay $294 in court costs in that cause.

Standard of Review and Applicable Law

      A cost is not payable by the person charged with the cost until a written bill

      is produced or is ready to be produced, containing the items of cost, signed

      by the officer who charged the cost or the officer who is entitled to receive

      payment for the cost.

      Tex. Code Crim. Proc. Ann Art. 103.001 (Lexis current through 2013 3d C.S.).

      An order to pay a certain amount of court costs must be supported by evidence

in the record that was before the trial judge. Adams v. State, 431 S.W.3d 832, 834

(Tex. App. -- Houston [14th Dist.] 2014, no pet.). citing Johnson v. State, 423 S.W.3d

385 (Tex. Crim. App. 2014). A reviewing court examines the record to determine

whether there is “a basis for the cost” to support the trial court’s order. Id. at 835.

Relevant Facts

      The trial court conducted a consolidated punishment hearing on Causes 66494,

66495 and Cause 71937 on June 27, 2014. (3 R.R. at 4). The clerk’s record in 71937

does not contains a cost bill specific to that cause, but instead has a cost bill for Cause

66495. (Supp. C.R. 71937 at 43).

      The trial court entered a written judgment, in each of the three causes, each

requiring Appellant to pay $294.00 in court cost. (C.R. 66494 at 17; C.R. 66495 at 22;

                                             7
C.R. 71937 at 30). Additionally the trial court ordered that these court costs be drawn

against the Appellant’s inmate trust fund. (Supp. C.R. 71937 at 34).

      Appellant’s counsel specifically requested that the record on appeal be

supplemented to include a bill of cost. (Supp. C.R. 71937 at 49).

Analysis

      At the time of writing of this brief, the there is no basis in the record to support

that trial court’s order that Appellant pay $294 in court costs in Cause 71937.

Appellant specifically requested that the record include a bill of cost. (Supp. C.R.

71937 at 49). The only bill of cost that is presently in the record in Cause 71937 is for

Cause 66495. (Supp. C.R. 71937 at 43).

      Appellant recognizes that this Court may order the clerk to further supplement

the record with a correct cost bill. Johnson, 423 S.W.3d at 391. As the record stands,

at the time of this writing, there is no bill of cost related to Cause 71937 in the record.

As court costs are “not payable by the person charged with the cost until a written bill

is produced,” and no cost bill has been produced to the Appellant or this Court in

Cause 71937, this Court should find that the Appellant is not responsible for the

payment of court costs in Cause 71937. Appellant prays that this court reform the

judgment in Cause 71937 to remove the assessed court cost.




                                            8
                    APPELLANT’S THIRD POINT OF ERROR

      If this court finds that the cost bill for the companion cause is a sufficient basis

to support the courts costs in Cause 71937, there is no basis in the record to support a

$70.00 Warrant/Bond fee in Cause 71937.

Standard of Review and Applicable Law

      An order to pay a certain amount of court costs must be supported by evidence

in the record that was before the trial judge. Adams v. State, 431 S.W.3d at 834. A

reviewing court examines the record to determine whether there is “a basis for the

cost” to support the trial court’s order. Id. at 835.

      There is an allowable $50.00 fee for the execution or processing of “an issued

arrest warrant, capias, or capias pro fine.” Tex. Code Crim. Proc. Ann. Art. 102.011

(a)(2) (Lexis current through 2013 3d C.S.). Only a $5.00 fee is allowable where an

officer has made a warrantless arrest. Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(1).

The statute also allows for a $10.00 fee “for taking and approving a bond and, if

necessary, returning the bond to the courthouse.” Tex. Code Crim. Proc. Ann. Art.

102.011 (a)(5).

Relevant Facts

      The bill of cost for Cause 66495 in the clerk’s record in Cause 71937 includes a

Warrant/Bond fee in the amount of $70.00. (Supp. C.R. 71937 at 43). Appellant was

arrested without a warrant in this cause. (Sealed C.R. 71937 at 33). He did not make

bail in this cause and was in jail from the date of his arrest until his hearing. (3 R.R. at

                                              9
58, 84).

Analysis

      If this court finds that the cost bill for Cause 66495 is a sufficient basis to

support the courts order that court cost be paid in Cause 71937, there is still no basis

for an assessment of a $70.00 Warrant/ Bond fee in Cause 71937.

      The cost bill in the record of Cause 71937, which is a cost bill for Cause 66495,

includes a Warrant/Bond fee in the amount of $70.00. (Supp. C.R. 71937 at 43). The

Code of Criminal Procedure allows for a $50.00 fee for the execution of an arrest

warrant, capias or capias pro fine. Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(2).

Only $5.00 fee is allowed by statute where a defendant is arrested without a warrant,

as was the case in Cause 71937. Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(1),

(Sealed C.R. 71937 at 33). Also, as Appellant did not bail out of jail in this matter no

fee for taking or approving a bond should have been assessed.

      As Appellant was arrested without a warrant, and did not post bail, in Cause

71937, there is no basis in the record to support the imposition of a $70 Warrant / Bail

fee. Appellant prays that this Court reform the judgment of the trial court to remove

the $70 Warrant / Bail fee assessed as court cost in this cause.




                                            10
                  APPELLANT’S FOURTH POINT OF ERROR

      The forty-year prison sentence imposed by the trial court in Cause 71937

violated the Eighth Amendment prohibition against cruel and unusual punishment, as

the sentence was grossly disproportionate to the crime.

Standard of Review and Applicable Law

      “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted." U.S. CONST. amend. VIII

      The Eighth Amendment prohibition against cruel and unusual punishment

includes “extreme sentences that are ‘grossly disproportionate’ to the crime.” Ewing v.

California, 538 U.S. 11, 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003).

Relevant Facts

      Appellant was on deferred adjudication probation in cause number 66494 for

the offense of Assault Public Servant, and on deferred adjudication probation in cause

66495 for Harassment of a Public Servant. (C.R. 66494 at 6-7; C.R. 66495 at 6-7)

      In October 2013, Appellant was living with his Nadia and their daughter in

Nadia’s mother’s home. (3 R.R. at 6-7). On October 29, 2013, Nadia drove Appellant

to a “bad neighborhood” in Houston where Appellant left the car, disappeared, and

purchased cocaine that he smoked on the way home. (3 R.R. at 20-21, 75-76).

      When they returned home, Appellant assaulted Nadia. (3 R.R. at 9, 25-26). He

then ran into the home and grabbed G.M. and ran down the stairs with the child. He

tripped and fell down the stairs with the child. (3 R.R. at 11). Appellant said “She's

                                          11
my daughter. She's not yours… If I can't have her, nobody can. She's mine.” (3 R.R.

at 12). He then lifted the child up over his head and threw her on the tile floor. (3

R.R. at 12-13).

      G.M. appeared to stop breathing and would not wake up. (3 R.R. at 13). She

suffered skull fractures, internal bleeding, swelling and bruising. (3 R.R. at 40). She

stayed in the hospital for two days and then was required to take anti-seizure

medication. (3 R.R. at 40).

      Appellant’s mother testified that Appellant suffers from hyperactivity, attention

deficit disorder, and is bipolar. (3 R.R. at 43). She believed Appellant also struggled

with depression. (3 R.R. at 45).

      Appellant’s father testified that Appellant might have been using drugs since he

was sixteen. (3 R.R. at 54). He testified that, for a while, Appellant worked with him

doing plumbing work. (3 R.R. at 57). Appellant’s father testified that there were

times through Appellant’s life where Appellant would go from seeming fine to not

being himself. (3 R.R. at 55, 57).

      Appellant is a substance abuser. Appellant testified that he used marijuana, once

or twice a day, when he was in high school. (3 R.R. at 68, 70-71). In high school he

also had a Xanax prescription which he abused. (3 R.R. at 71-73). He continued to be

prescribed Xanax until his arrest in 2013. (3 R.R. at 73). He also started smoking

crack cocaine after high school. (3 R.R. at 76).

      On October 28, 2013, Appellant had his 90 pill Xanax prescription filled. (3

                                           12
R.R. at 73). By the end of the day, he had used almost all of them. (3 R.R. at 74). He

testified that he had Nadia drive him to Houston that night to purchase crack cocaine.

(3 R.R. at 75-76). Appellant did not remember most of what happened when he threw

and injured G.M. (3 R.R. at 80).

      Appellant has struggled with suicidal thoughts since he was in junior high. (3

R.R. at 102). He believes that his drug abuse a source of his criminal behavior. (3

R.R. at 81-82). The eight months he spent in jail waiting on his hearing was the

longest he had been sober since high school. (3 R.R. at 84). He testified that he

recognizes he has a problem and wants help. (3 R.R. at 83).

      A motion for new trial was filed and presented to the trial court on the basis that

the punishment assessed against Appellant in Cause 71937 was grossly

disproportionate to the offense. (C.R. 71937 at 42; 4 R.R. at 4).

Analysis

      Appellant’s punishment was grossly disproportionate the crime for which he

was convicted and a violation of his Eighth Amendment right against cruel and

unusual punishment.

      Appellant recognizes that an analysis used by a number of courts to determine

whether a sentence is grossly disproportionate to the offense requires the reviewing

court to “consider (1) sentences for similar crimes in the same jurisdiction and (2)

sentences for the same crime in other jurisdictions.” Baldridge v. State, 77 S.W.3d

890, 893 (Tex. App. -- Houston [14th Dist.] 2002). Appellant recognizes that the

                                           13
record is void of any evidence regarding similar crimes in the same jurisdiction or

sentences from the same crime in other jurisdictions. Appellant also recognizes that at

least one intermediate Texas court of appeals has specifically found that a forty year

penitentiary sentence for first degree injury to a child is not violative of the Eighth

Amendment. Simmang v. State, No. 04-09-00563-CR at 7-10, 2010 Tex. App. LEXIS

4332 (Tex. App. -- San Antonio June 9, 2010, pet. ref’d) (mem. op., not designated for

publication).

      In Appellant’s case, the forty-year sentence is grossly disproportionate to the

crime. The trial court specifically cited a desire to protect G.M. from Appellant:

      I don't doubt one second that you love her. What I do doubt is that you don't
      have the skills to be a good father for her at this point in time in your life.
      There's more to being a father than enjoying the fun parts and playing with
      them. There's a whole lot more to it, and a lot of that means you have to
      adjust your lifestyle to raise them the right way. And until you can do that,
      you don't need to be in her life, especially if your lifestyle will hurt her.
      (3 R.R. at 109).

      [At] this point my job, I think, is very much to protect her.
      (3 R.R. at 110).

      Also, in the court’s presentence investigation, the child’s mother indicated that

she believed Appellant should serve some prison time, but that as the father of G.M.,

twenty years would be too long for him to be in prison. (Sealed C.R. 71937 at 16-17).

      The trial court’s decision to punish Appellant for forty years in order to keep

him away from G.M. is cruel and unusual. Appellant’s conviction for injury to a child

is an offense for which he will not become eligible for parole consideration until he

has served at least twenty years in prison. Tex. Gov’t Code Ann. §508.145 (Lexis
                                           14
current through 2013 3d C.S.). By the time Appellant is eligible to be considered for

parole, his daughter will be twenty-four years old.

      A lesser sentence, considering the parole board’s discretion in determining

whether an offender has been rehabilitated would have served the court’s purpose of

protecting G.M. from Appellant until he was rehabilitated but would have still allowed

Appellant’s participation in G.M.’s life if he had adjusted his lifestyle appropriately.

      Appellant prays that this Court find that the forty-year prison sentence imposed

against Appellant violated the Eighth Amendment and remand this matter to the trial

court for a new hearing on punishment.

                         CONCLUSION AND PRAYER

      Wherefore, Appellant prays that this Court find that Appellant is indigent and

was indigent when trial counsel was appointed to represent him and reform the

judgment of the trial court to remove the order in Cause 66494 that Appellant repay

Brazoria County for attorney’s fees for counsel appointed to Appellant.

      Appellant also prays that this Court find that there is no basis in the record to

support the court cost assessed in Cause 71937 and reform the judgment in Cause

71937 to remove the assessed court costs.

      Appellant further prays that this court find that his forty-years sentence is cruel

and unusual punishment and remand this matter to the trial court for a new hearing on

punishment.




                                            15
Respectfully submitted,

/s/ Joseph Kyle Verret
Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432 47
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com

                            CERTIFICATE OF SERVICE


      I certify that a true and correct copy of the foregoing Brief for Appellant was

served on the Counsel for the Appellee, David Bosserman, at the Criminal District

Attorney’s Office of Brazoria County, Texas, by service through electronic filing on

this 6th day of February, 2015.


/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932


                          CERTIFICATE OF WORD COUNT

      I do hereby certify that the total word count for this document 3,814 excluding

those parts specifically excluded in Texas Rule of Appellate Procedure 9.4(i)(1) which

is less than 15,000 words allowed per Texas Rule of Appellate Procedure 9.4.


/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932
                                          16
APPENDIX




   17
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          TEXAS FAIR DEFENSE ACT ROTATIONAL APPOINTMENT SYSTEM
- -l0 r;,               FOR BRAZORIA COUNTY, TEXAS
 tJ j)\ \ LP-\
 0 \0 ct lbenise Damian, Court Administrator                      Iris Huerta, Indigent Defense Coordinator
          111 E. Locust, Room 309                                 111 E. Locust, Room 309
          Angleton, TX 77515                                      Angleton, TX 77515
          979-864-1263 Phone                                      979-864-1683 Phone             r.'\
          979-864-1893 Fax                                        979-864-1893 Fax               \td
          denised@brazoria-county.com                             irish@brazoria-county.com
                                                                                                       .,,'"
                            NOTICE OF APPOINTMENT AND CONFIRMATION                                             f       C;;
                                                                                                   rdlJi)2\}'
                                    DATE ATTORNEY APPOINTED: 12/16/13                                                   ==
      ATTORNEY INFORMATION:                                                                               v        >
                                                                                                                         ::.
      Name: STEVENS, PERRY                                                    Phone: (979) 848-1111

      Address: 603 E MULBERRY                                                 Fax:     (979) 849-9398
      ANGLETON, TX 77515-0000

      In accordance with the Local Rules of Administration implementing the Texas Fair Defense Act for Brazoria
      County, Texas ("BCTFDA"), the defendant has been appointed the attorney named above.

      The appointed attorney is required to provide the Court with written confirmation that the attorney made reasonable
      efforts to contact the defendant by the end of the first working day after the date of the appointment and that the
      attorney personally interviewed the defendant no later than fifteen (I5) days after Notice of Appointment. The
      confirmation must be filed with the Verification Officer no later than three (3) days before my first court appearance
      for this case. If you have any questions, you may contact the Court Administrator or the Verification Officer.

                                              HEARING INFORMATION

                                                                                        MTNTO
                                                                                        ADJUDICATE GUILT

      DEFENDANT INFORMATION'                    .
      Name: MOLNOSKEY, RYAN VICTOR                           Cause No: 66495
      Address:
      PEARLAND, TX 77581-4495                                Court: 149TH DISTRICT COURT
      Phone:
      Case Information:     MOTION TO ADJUDICATE GUILT; F3
      Defendant is in iail: YES                         Refiled: TRUE
      Docket Control Order Attached: NO

      ACKNOWLEDGMENT:

      o   I made reasonable efforts to contact defendant before the end of the first business day.
      o I interviewed the defendant no later than fifteen (15) days after date of my appointment.

      Attorney Signature                                                      Date


                                                                                                               10085

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