                                                                                             ACCEPTED
                                                                                        13-14-00677-CR
                                                                          THIRTEENTH COURT OF APPEALS
                                                                                CORPUS CHRISTI, TEXAS
        FILED                                                                      3/8/2015 11:44:41 PM
IN THE 13TH COURT OF APPEALS                                                          DORIAN RAMIREZ
        CORPUS CHRISTI                                                                           CLERK

          3/9/15                      COURT OF APPEALS
DORIAN E. RAMIREZ, CLERK
BY DTello            13th      SUPREME JUDICIAL DISTRICT OF RECEIVED
                                                             TEXAS IN
                                                         13th COURT OF APPEALS
                                                      CORPUS CHRISTI/EDINBURG, TEXAS
                                    CORPUS CHRISTI, TEXAS 3/9/2015 8:00:00 AM
                                                           DORIAN E. RAMIREZ
                   CASE NOs.      13-14-00677-CR, 13-14-00678-CR  Clerk and
                             13-14-00679-CR
               Tr.Ct.Nos. 12-CR-2404-C, 13-CR-0268-C and
                              13-CR-3675-C
        _______________________________________________________
        JOHN                   DOUGLAS                   HOUSTON
        APPELLANT
                                   VS.

        THE STATE OF TEXAS                                              APPELLEE

                 Appealed from the 94th Judicial District Court

                          Nueces County, Texas
        _______________________________________________________

                           APPELLANT'S BRIEF
        _______________________________________________________

                                  RANDALL E. PRETZER, PLLC

                                   State Bar No. 16279300

                                        P.O. Box 18993

                                Corpus Christi, Texas 78480

                                     BUS: (361) 883-0499

                                     FAX: (361) 883-2290

                               E-Mail: RPretzer@Clearwire.net

                                   ATTORNEY FOR APPELLANT
  IDENTITY OF PARTIES AND COUNSEL



          JUDGE PRESIDING

    THE HONORABLE BOBBY GALVAN

    94TH JUDICIAL DISTRICT COURT

         901 LEOPARD STREET

    CORPUS CHRISTI, TEXAS 78401

       COUNSEL FOR THE STATE

       MR. LEO HENRY GONZALEZ

    ASSISTANT DISTRICT ATTORNEY

         901 LEOPARD STREET

    CORPUS CHRISTI, TEXAS 78401

             APPELLANT

      MR. JOHN DOUGLAS HOUSTON

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

        APPELLANT'S COUNSEL

   MR. RANDALL E. PRETZER, PLLC

       ATTORNEY FOR APPELLANT

           P.O. BOX 18993
    CORPUS CHRISTI, TEXAS 78480



                 i
                     TABLE OF CONTENTS

                                                        Page

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

TABLE OF CONTENTS    . . . . . . . . . . . . . . . ii-iii

INDEX OF AUTHORITIES    . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE      . . . . . . . . . . . . . 1-2

STATEMENT OF FACTS     . . . . . . . . . . . . . . . 2-8

SUMMARY OF THE FIRST ARGUMENT . . . . . . . . . . 8

FIRST POINT OF ERROR    . . . . . . . . . . . . . . 8

                       FIRST POINT OF ERROR

    THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE

 EVIDENCE THAT APPELLANT COMMITTED THE OFFENSES AS SET

                        FORTH IN THE

                MOTIONS TO REVOKE PROBATION.

ARGUMENT AND AUTHORITIES    . . . . . . . . . . . . 8-9

SUMMARY OF THE SECOND ARGUMENT    . . . . . . . . . 9-10

SECOND POINT OF ERROR     . . . . . . . . . . . . . 10

                    SECOND POINT OF ERROR

    THE PUNISHMENT ASSESSED BY THE JUDGE DURING THE

       SENTENCING PHASE OF THE MOTIONS TO REVOKE


                             ii
         PROBATION WAS DISPROPORTIONATE TO THE

      SERIOUSNESS OF THE ALLEGED OFFENSE, ALL IN

        VIOLATION OF THE EIGHTH AND FOURTEENTH

     AMENDMENTS OF THE UNITED STATES CONSTITUTION.

ARGUMENT AND AUTHORITIES    . . . . . . . . . . . . 10-20

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE     . . . . . . . . . . . . . 21

CERTIFICATE OF COMPLIANCE, RULE 9.4(i), TRAP    . . 21




                             iii
                 INDEX OF AUTHORITIES


Cases:                                              Page
Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App.
 1983) . . . . . . . . . . . . . . . . . . . . . . 10
Combs v. State, 652 S.W.2d 804, 806 (Tex.App.—
 Houston [1st Dist.] 1983, no pet.)     . . . . . . . 10
Swenney v. State, 828 S.W.2d 254,258 (Tex. App.—
 Houston [1st Dist.] 1992) . . . . . . . . . . . . 11
Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex. Civ.
 App. — Tyler 1978, writ ref'd n.r.e.) . . . . . . 11
Houston Chronicle Publishing Co. v. City of Houston,
                                               th
 531 S.W.2d 177 (Tex. Civ. App. — Houston [14
 Dist.] 1975), writ ref'd n.r.e., 536 S.W.2d 559
 (Tex. 1976) . . . . . . . . . . . . . . . . . . . 11
Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417,
 8 L.Ed.2nd 758 (1962) . . . . . . . . . . . . . . 11
Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803)
 . . . . . . . . . . . . . . . . . . . . . . . . . 12
Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909,
 2925, 49 L.Ed.2d 859 (1976) . . . . . . . . . . . 13
Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861,
 2866, 53 L.Ed.2d 982 (1977) . . . . . . . . . . . 13
Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.
 2d 637 (1983) . . . . . . . . . . . . . . . . . . 13
Harmelin v. Michigan, 111 S.Ct. 2680 (1991), 115
 L.Ed.2d 836 (1991). . . . . . . . . . . . . . . . 14
                          iv
                      COURT OF APPEALS

        13th SUPREME JUDICIAL DISTRICT OF TEXAS

                   CORPUS CHRISTI, TEXAS

      CASE NOs. 13-14-00677-CR, 13-14-00678-CR and
                      13-14-00679-CR
        Tr.Ct.Nos. 12-CR-2404-C, 13-CR-0268-C and
                       13-CR-3675-C
_______________________________________________________
JOHN                    DOUGLAS                   HOUSTON
APPELLANT
                           VS.

THE STATE OF TEXAS                                   APPELLEE

     Appealed from the 94th Judicial District Court

                  Nueces County, Texas
_______________________________________________________

                   APPELLANT'S BRIEF
_______________________________________________________


TO THE HONORABLE 13th COURT OF APPEALS:

                   STATEMENT OF THE CASE`

    Previously on     or about   June 9, 2014,       the state

filed with the Clerk of Nueces County, Texas,         Original

Motions to Revoke Probation (MTR) under Cause Numbers

12-CR-2404-C,     13-CR-0268-C   and   13-CR-3675-C.        On

September   18,    2014,   the   court    held   a     hearing


                             1
simultaneously   on   all    three   MTR’s    wherein     Appellant

pled NOT true to all four counts labeled (1), (1), (1)

and (2) which were identical in each cause number and

thus for efficiency Appellant will reference any page

numbers under Cause No. 12-CR-2404-C. (RR, Vol. 1, pp.

7-11).   After listening to testimony of all witnesses

and argument from the state and Appellant, the court

found all counts set forth under each cause number to

be true. (RR, Vol. 3, page 77).         Thereafter, the court

sentenced Appellant to ten (10) years in prison in each

case, all sentences to run concurrently since the court

did not specifically order that they run consecutively.

(RR, Vol. 1, pp. 78-79).

    Appellant    perfected    his    appeal   in   each    case   by

filing in writing his Notices of Appeal, on October 6,

2014 under Cause Nos. 12-CR-2404-C, 13-CR-0268-C and

13-CR-3675-C.




                               2
                      STATEMENT OF FACTS

    Again, on March 27, 2012, the state filed with the

Clerk of Nueces County, Texas, an Original Motion to

Revoke Probation (MTR) under Cause Numbers 12-CR-2404-

C, 13-CR-0268-C and 13-CR-3675-C.

    Again, on      September 18, 2014, the court              held a

hearing   simultaneously    on       all   three     MTR’s    wherein

Appellant pled NOT true to all four counts labeled (1),

(1), (1) and (2) which were identical in each cause

number and thus for efficiency Appellant will reference

any page numbers under Cause No. 12-CR-2404-C. (RR,

Vol. 1, pp. 7-11).

    During   the    evidentiary      hearing   the    state    called

several witnesses to prove those allegations to which

Appellant pled NOT true. The first witness called by

the state was Officer David Alfaro, who testified as

follows: that on April 27, 2014, he was on duty with

Officer Villagomez; that on that evening he and Officer

Villagomez made a traffic stop with the driver of a car


                                 3
since that driver was in violation of the law by using

his cell phone while operating a motor vehicle; that

the driver was the Appellant who had no drivers license

or proof of automobile insurance; that accordingly the

car would be impounded and the Appellant was asked to

step out of the car; that he conducted a “pat-down”

search of Appellant for the possibility of any weapons;

that he observed a clear plastic baggy on the driver’s

side of the car which appeared to contain a crystal-

like   material   which   may       have   been   a   controlled

substance; that Officer Villagomez also found two small

packages of possible controlled substances in the same

car; that the officers also found another bag which

contained synthetic marijuana; that in addition they

found $1,038.00 in Appellant’s right rear pocket; that

there was a front passenger in the vehicle at the time

of the stop, but that the drugs were found on the

driver’s side of the same vehicle; that there were no

recordings, video or audio, of this incident; and, that

the officer did not know if the state had yet indicted


                                4
the Appellant for these alleged offenses. (RR, Vol. 3,

pp. 13-24).

       Thereafter, the state called Officer Daryl Anderson

who testified as follows: that he assisted Officers

Alfaro and Villagomez with the inventory of the car

Appellant had driven; that he had also found a bag

underneath the driver’s side of the vehicle; that in

this    bag    he    found     some    plastic      bag,    one    of    which

contained a substance which field-tested for cocaine;

that    he    related     to   the    court    his    opinion      that      the

field-test was very reliable; and, that he confirmed

that    Appellant     did      have   cash    on    his    person       in   the

amount,       more   or      less,    as     stated    by    the     initial

arresting officers. (RR, Vol. 3, pp. 24-31).

       Thereafter,      the    state       called    its    last    witness,

Officer Reynaldo Tamez, who testified as follows: that

in July 2014 he was assisting the U.S. Marshals in

arresting those who had outstanding warrants and who

were    classified        as    be    violent       subjects;       that     he

assisted the same Marshals in pursuing Appellant, along


                                       5
with others, in a foot pursuit; that he apprehended

Appellant; that in the car and trailer from which he

fled, the Marshals found various financial instruments

which    had    previously     stolen     from     three     individuals

under burglary of their individual vehicles; that there

was another individual who fled from the car, but he

and the Marshals did not find him; and, that no one

found     Appellant’s       fingerprints      on     these     financial

instruments, since neither the police nor Marshals made

an effort to lift any print samples. (RR, Vol. 3, pp.

31-44).

     The state then rested its case.

     Appellant elected to testify and after being duly

sworn, stated the following: that the cash found on his

person by the police was from his paycheck that he

earned    as     an   electrical        engineer    with     Central    P

Recordings; that he was paid every two weeks in a gross

of   about     $1,700.00;    that   he    knew     nothing    about    the

alleged illegal drugs extracted from the vehicle; that

regarding the incident with the U.S. Marshal’s office,


                                    6
he had no idea who those officers were at that time,

since they never flashed any police lights from their

car, never showed any badges, and were not dressed in

any uniforms which might indicate they were officers of

the   law;    that     one    man       pointed       a    gun   at    him     and

accordingly he fled in fright not wanting to be shot by

these strange men who were not in uniform, showing any

badges,      or    flashing       any       police     lights    from        their

vehicle; that when he finally saw police in uniforms

and overt identifications, he then laid on the ground

and put his hands behind his body; that when questioned

by the state regarding the incident with the drugs in

the car, Appellant related that the car was not his and

that he had driven it for maybe ten (10) minutes before

being     arrested;        that   when       he      was   pursued      by     the

Marshals, that vehicle was not his and he had driven it

for only a short time; and, under cross-examination by

the state, Appellant again stated that he knew nothing

about   the       stolen    financial         instruments        and    nothing




                                        7
about the drugs in the other vehicle. (RR, Vol. 3, pp.

45-76).

       The Appellant and state rested.

       The court listen to argument from the state and

Appellant      regarding     findings     and     disposition.

Thereafter, the court found that all counts set forth

under each cause number to be true. (RR, Vol. 3, page

77).    Accordingly, the court sentenced Appellant to ten

(10) years in prison in each case, all sentences to run

concurrently since the court did not specifically order

that they run consecutively. (RR, Vol. 1, page 78-79).



                   SUMARY OF THE FIRST ARGUMENT

       The state did not provide sufficient evidence to

prove     by   a   preponderance   of   such    evidence   that

Appellant was, in fact, criminally involved in those

allegations set forth in counts (1), (1), (1) and (2)

of the Motions to Revoke Probation.



                       FIRST POINT OF ERROR


                               8
       THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE

 EVIDENCE THAT APPELLANT COMMITTED THE OFFENSES AS SET

          FORTH IN THE MOTIONS TO REVOKE PROBATION.



                        ARGUMENT AND AUTHORITIES

       The honorable 13th Court of Appeals will note that

the Appellant related in his testimony that he was, in

fact, in the wrong place at the wrong time as rightly

stated (admitted?) by the prosecution in his cross-

examination.       The Appellant testified that he was not

the     owner    of     the   two      vehicles        involved     in    the

allegations.          Appellant        specifically         denied        any

knowledge of the drugs or stolen financial documents.

Appellant       never   had   any      drugs      or   stolen     financial

documents on his person. Appellant fled when he a man

pointed a gun at him, such man NOT (according to his

testimony) being in uniform, never displaying a badge,

and never turning on police lights. Finally, Appellant

related to the court that the $1,038.00 found in his

back    pocket    was    money    he       had   earned   working    as    an


                                       9
electrical      engineer    for    a     recording    company.

Accordingly,    it   was   Appellant’s    position   that   his

rebuttal evidence negated any finding of TRUE under the

standard of preponderance of evidence, all in violation

of the 5th and 14th Amendments of the U.S. Constitution.



               SUMMARY OF THE SECOND ARGUMENT

    The sentence imposed by the judge was excessive and

disproportionate to the offenses committed in each case

and thus violated the 8th and 14th Amendments of the U.S.

Constitution.



                     SECOND POINT OF ERROR

    THE PUNISHMENT ASSESSED BY THE JUDGE DURING THE

       SENTENCING PHASE OF THE MOTIONS TO REVOKE

         PROBATION WAS DISPROPORTIONATE TO THE

      SERIOUSNESS OF THE ALLEGED OFFENSES, ALL IN

         VIOLATION OF THE EIGHTH AND FOURTEENTH

     AMENDMENTS OF THE UNITED STATES CONSTITUTION.




                              10
                         ARGUMENT AND AUTHORITIES

       Appellant notes that under the previous rulings of

the Texas Court of Criminal Appeals, an appeal prefaced

on the grounds of disproportionate punishment may be

frivolous.         Harris       v.    State,         656     S.W.2d     481,    486

(Tex.Crim.App.1983); Combs v. State, 652 S.W.2d 804,

806 (Tex. App.-- Houston [1st Dist.] 1983, no pet.).

However, Appellant raised this specific issue to ensure

there     was      no    waiver       of    an       anticipatory       claim    of

disproportionate            punishment          in    Federal       Court.      See

Swenney       v.     State,     828    S.W.2d        254,     258    (Tex.     App.—

Houston [1st Dist.] 1992).                      Clearly, it was within a

court's power to review a sentence imposed by judge or

jury    and     to      determine     whether         such    sentence       passed

constitutional muster, even if no objections were made

during trial.            Lovejoy v. Lillie, 569 S.W.2d 501, 503

(Tex.    Civ.        App.   —   Tyler       1978,      writ     ref'd    n.r.e.);

Houston Chronicle Publishing Co. v. City of Houston,

531 S.W.2d 177 (Tex. Civ. App. — Houston [14th Dist.]




                                           11
1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976).

Accordingly, the issue was one of PROPORTIONALITY.

       The Eighth Amendment of the Constitution of the

United    States         provides        as    follows:      "Excessive       bail

shall not be required, nor excessive fines imposed, nor

cruel and unusual punishment inflicted."                             Robinson v.

California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2nd 758

(1962),      held        that      the     Eighth            Amendment        was

applicable         to     punishments         imposed     by    state     courts

through      the        Due   Process         Clause    of     the    Fourteenth

Amendment of the United States Constitution.                             Marbury

v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), concluded

that    it   was        within     the     powers      and     duties    of    the

judicial branch of our government to determine what was

the law and whether or not a law was constitutional.

Clearly, it was within a court's power to review a

sentence     imposed          by   judge      or   jury   and    to    determine

whether      such       sentence     passed        constitutional        muster.

Though the Trial Court had imposed a ten (10) year

prison sentence under each cause number, such sentences


                                         12
to run concurrently, this did not mean ipso facto that

any sentence within the range of punishment was exempt

from constitutional scrutiny simply because that was

what a legislative body authorized courts and juries to

impose -– obviously such an argument is circular in its

construction.        If such were the case, then any state

legislature could with complete impunity pass Draconian

laws,     for    example,    that    made     overtime       parking     an

offense punishable by life imprisonment.

    In    previous    decisions      the    United     States    Supreme

Court    concluded    that    the    Eighth    Amendment's       bar     to

cruel and unusual punishments was an evolving standard

which    proscribed    needless      or    barbaric    infliction        of

pain and sanctions which were disproportionate to the

severity of a crime. Gregg v. Georgia, 428 U.S. 153,

173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976); Coker

v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53

L.Ed.2d    982    (1977).      Accordingly,       in     a    1983     U.S.

Supreme Court decision, the justices set forth certain

standards by which appellate courts might objectively


                                    13
review court or jury assessed punishments to determine

if   they   violated          the     proscriptions       of    the    Eighth

Amendment. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001,

77 L.Ed.2d 637 (1983).                 The objective standards set

forth in Solem were as follows:

     1. "the        gravity      of     the     offense        and    the

     harshness of the penalty," 463 U.S., at 290-

     291, 103 S.Ct., at 3009-3010;

     2. "the sentences imposed on other criminals in

     the same jurisdiction," id., at 291, 103 S.Ct.,

     at 3010; and,

     3. "the sentences imposed for commission of the

     same crime in other jurisdictions," id. at 219-

     292, 103 S.Ct., at 3010.

However,    in       a    U.S.       Supreme    Court     decision,         the

Justices,      by     a   5-4       majority,    chose     to    limit      the

application of the standards in Solem and stated that

there was no proportionality guarantee (possibly with

the exception of death                penalty     cases) in the Eight

Amendment. Harmelin v. Michigan, 111 S.Ct. 2680 (1991),


                                       14
115 L.Ed.2d 836 (1991).         Regardless, it was Appellant's

position that the majority in Harmelin recognized that

indeed     the     Eighth     Amendment     provided     a    limited

proportionality component when Justice Scalia stated as

follows:



           "We think it enough that those who framed

    and approved the Federal Constitution chose,

    for whatever reason, not to include within it

    the      guarantee         against          disproportionate

    sentences        that     some     State       Constitutions

    contained.       It is worth noting, however, that

    there was good reason for that choice -- a

    reason       that   reinforces        the     necessity   of

    overruling Solem.          While there are relatively

    clear        historical     guidelines        and   accepted

    practices that enable judges to determine which

    modes (emphasis added) of punishment are "cruel

    and unusual," proportionality (emphasis added)

    does not lend itself to such analysis.               Neither


                                  15
    congress nor any state legislature has ever set

    out with the objective of crafting a penalty

    that is "disproportionate," yet as some of the

    examples mentioned above indicate, many enacted

    dispositions seem to be so -- because they were

    made    for   other     times      or   other    places,       with

    different social attitudes, different criminal

    epidemics,          different        public      fears,         and

    different      prevailing          theories     of    penology.

    That is       not     to     say     that     there      are     no

    absolutes;      one    can    imagine       extreme     examples

    that no rational person, in any time or place

    could accept.          But for the same reason these

    examples are easy to decide, they are certain

    never to occur (emphasis added).                 Harmelin, at

    111 S.Ct., at 2696-2697.



    Appellant       concedes        that        Harmelin,      may        have

narrowed,    though       not     necessarily        eliminated,          the

proportionality         component      of   the     Eighth     Amendment.


                                    16
However, Harmelin           did not provide any new objective

standards       by    which           to     review        and     reverse    those

"examples"      which       "are           easy    to    decide"      other    than

Justice Kennedy’s conclusion that the first objective

standard in Solem (the gravity of the offense and the

harshness of the penalty) shall be the initial hurdle

that     a    reviewing      court           must       overcome     before     ever

considering the remaining standards two and three in

Solem.        Harmelin, 111 S.Ct., at 2707.                          Accordingly,

Appellant      contends          that       in    reality        Harmelin    has    no

language      prohibiting         appellate          courts       from   reviewing

the constitutionality of a particular punishment in the

light    of    concepts          of     proportionality            set   forth     in

Solem.       To contend now that proportionality was now so

narrow that it was without meaning (with the exception

of death penalty cases, Harmelin at 111 S.Ct. at 2701),

that     lawmakers         may     run       amok       enacting      reactionary

legislation,         and    that        judges      or     juries     may     impose

sentences with absolute immunity from judicial review,

was    difficult      to     comprehend             when    you     consider       our


                                            17
national      and     historical      deference          to   fundamental

governmental        concepts    of   separation         of    powers,    and

checks and balances.

      The    concept    of     proportionality          was   ancient    and

fundamental     to     the    jurisprudence        of    emerging     world

civilizations.          The    concept     of     limiting      the   penal

sanction through proportionality predates Magna Carta

or English Common Law and can be found in the Code of

Hammurabi      which     placed      limits       on      punishment      by

proscribing an eye for an eye, a tooth for a tooth, or

more concisely: no more than an eye for an eye, and no

more than a tooth for a tooth.               Accordingly, Appellant

contended that despite the 5-4 decision in Harmelin,

the   appellate       courts    should     examine       case   law     that

attempted to provide rational standards for reviewing

particular          punishments       in        determining       whether

particular penal sanctions were disproportionate to the

severity of a particular crime.

      As previously mentioned, the United States Supreme

Court   in    Solem    established        three    major      factors   for


                                     18
consideration and application in determining whether a

punishment violated the Eighth Amendment's "cruel and

unusual" proscriptions. In Appellant's particular case,

the punishment assessed by the court of a ten (10) year

prison sentence under each cause number, such sentences

to run concurrently, was excessive and clearly should

be reserved for more heinous offenders so that such a

sanction was meaningful under concepts of retribution

and deterrence.

       If   this    honorable    Court      of    Appeals    applied   the

facts of Appellant's case to those three standards set

forth       in   Solem     it   could      move    through    the   first

threshold standard (the gravity of the offense and the

harshness of the penalty -- now required by Harmelin);

find that proportionality was an issue; conclude that

statistically           intrastate    sentences,      from    judges   or

juries, would not be as harsh; and, further conclude

that    the      same    intrastate     statistics    would    apply   to

interstate sentences.




                                      19
       The Court's imposition of a ten (10) year prison

sentence under each cause number, such sentences to run

concurrently, violated the punishment proscriptions of

the Eighth Amendment of the United States Constitution

as    applied   to    the   various      States    by    the    Fourteenth

Amendment,      and   warrants      at     least   a    new     punishment

hearing for Appellant in the trial Court.                      Again, this

honorable Court of Appeals will recall that during the

findings phase of the hearing that the court could have

found that Appellant’s rendition of the drug case and

then     the    financial      instruments             case     were       not

unreasonable and constituted his version of the events

wherein he was in fact in the wrong place at the wrong

time    –   a   predicament         that    many    individuals           have

experienced.     Regardless,        the     Appellant         had   been    on

community supervision for a very short period of time

and    considering     his    not    irrational         version      of    the

events he should be returned to community supervision

and    placed    on    intensive         supervision      for       probable

substance abuse issues.


                                    20
                        PRAYER FOR RELIEF

    For   ALL     the    reasons     stated    above,    Appellant

respectfully requests that the honorable 13th Court of

Appeals reverse the trial court’s judgment, set aside

the sentence of Appellant, and remand the case back to

court   for   a   new   sentencing    hearing,   or   reverse   the

sentencing portion of the trial and render an order

returning Appellate forthwith to probation status under

any terms and conditions set by the trial court to

include   intensive     supervision    for    probably   substance

abuse issues.

    RESPECTFULLY SUBMITTED:


   /S/   Randall E. Pretzer
   Randall E. Pretzer, PLLC
   Attorney for Appellant
   State Bar No. 16279300
   P.O. Box 18993
   Corpus Christi, Texas 78480
   BUS: (361) 883-0499
   FAX: (361) 883-2290
   E-Mail: RPretzer@Clearwire.net


                    CERTIFICATE OF SERVICE

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    I     certify    that   a      true   and     correct    copy    of

Appellant's       Brief   was   delivered       to    Nueces     County

District Attorney’s Office, 901 Leopard Street, Corpus

Christi, Texas 78401, by hand-delivery on February 10,

2015.

                                          /S/             Randall    E.
Pretzer
                                          Randall   E.   Pretzer,
                                          PLLC
                                          Attorney for Appellant


                    CERTIFICATE OF COMPLIANCE
                     UNDER RULE 9.4 (i), TRAP

    Please be advised that in compliance with Texas

Rule of Appellate Procedure 9.4(i)(3), as amended, I

certify    that     the   number    of    words      in   this   brief,

excluding those matters listed in Rule 94 (i)(1), is

2,979 as per the computer count.

                                          /S/         Randall   E.
                                          Pretzer
                                          Randall   E.    Pretzer,
                                          PLLC
                                          Attorney for Appellant




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