                                                                                  ACCEPTED
                                                                              06-18-00009-CR
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                            3/29/2018 3:36 PM
                                                                             DEBBIE AUTREY
                                                                                       CLERK

               Case No. 06-18-00009-CR

                         IN THE                               FILED IN
                                                       6th COURT OF APPEALS
                                                         TEXARKANA, TEXAS
             SIXTH COURT OF APPEALS                    3/29/2018 3:36:41 PM
                                                           DEBBIE AUTREY
                       OF TEXAS                                Clerk


                   DALLAS, TEXAS

         _______________________________

            D’ARQUEZ QUAJON TENNON
                    Appellant

                           VS.

               THE STATE OF TEXAS,
                      Appellee
___________________________________________________

      On Appeal from the 8th Judicial District Court
              Of Hopkins County, Texas

                  Trial Court Cause No.
                         1625647

            BRIEF FOR THE APPELLANT
___________________________________________________

           ROBERT J. HERRINGTON, ESQ.
                P. O. BOX 262234
            PLANO, TEXAS 75026-2234
            TELEPHONE (214) 557-0577
             FACSIMILE (972) 599-0391
             STATE BAR NO. 00790163

            ATTORNEY FOR APPELLANT

                                           Oral Argument Not Requested


                            !1
                       IDENTITY OF PARTIES AND COUNSEL

1. Trial Judge: The Honorable Eddie Northcutt, judge, presided over the trial.

2. Appellant: D’Arquez Quajon Tennon, #02178164, TDCJ, Gurney Unit, 1385 FM

   3328, Palestine, TX 75803

3. Counsel for Appellant: Robert J. Herrington, P.O. Box 262234, Plano, TX 75026 (on

   appeal).

4. The State of Texas was represented by Mr. Will Ramsay, District Attorney, P.O. Box

  882, Sulphur Springs, TX 75483-0882, and is represented on appeal by and through the

  Hopkins County District Attorney’s Office, appellate division, at the same address.




                                            !2
                   STATEMENT REGARDING ORAL ARGUMENT

       Appellant does not request oral argument, as the decisional process of this Court

would not be significantly aided by oral argument, since the facts and legal arguments are

adequately presented in the brief submitted to this Court by the Appellant.




                                             !3
                                                TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             2

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Word Count . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                                  !4
                                       INDEX OF AUTHORITIES

CASES:

Ellison v. State, 201 SW 3d 714( Tx. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . 10

Randle v. State, 499 SW 3d 912 (Houston Dist. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Hayes, 589 F.2d 811, cert denied, 444 U.S. 847 (5th Cir. 1987) . . . . 12



STATUTES and RULES:

TEXAS PENAL CODE §19.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                        !5
                              STATEMENT OF THE CASE

       Appellant was charged by Indictment, dated November 3, 2016, with the offense

of manslaughter, a second degree felony under the Texas Penal Code, section 19.04.

(CR: 6)

       Appellant pleaded guilty to the offense on February 23, 2017 and was originally

sentenced by the judge to deferred adjudication supervision for ten (10) years, a

$2,500.00 fine, and conditions. (CR: 33)

       On October 19, 2017, the State moved to proceed with an adjudication of guilt,

alleging certain violations of the terms of supervision, including testing positive for use

of marijuana and failure to complete a “Moral Reconation Therapy Class” as directed by

the community supervision officer (CR: 36)

       On December 28, 2017, appellant entered an open plea of true to the allegations in

the motion to adjudicate. After a contested hearing, he was sentenced by the court to

imprisonment for a term of nineteen years (CR: 79) Appellant filed a a notice of appeal

on January 5, 2018. (CR: 85) Undersigned counsel was appointed to represent Appellant

on appeal, and this brief follows.




                                              !6
                                  ISSUE PRESENTED

      1.     Did the court abuse its discretion in sentencing appellant to nineteen years

imprisonment after defendant pleaded true to the allegations in the motion to adjudicate?




                                            !7
                                  STATEMENT OF FACTS

         The motion to adjudicate, to which appellant pleaded true, alleged that appellant

had tested positive for marijuana, had failed to pay his court-ordered fine and costs, and

failed to complete a “moral reconation therapy class.” (CR: 36)

         Several witnesses testified for the state, including the victim’s family members,

who testified as to the good character of the victim in the underlying manslaughter case,

and as to the strong and negative impact of his death on the rest of the family. (RR:

37-58)

         Also testifying for the State was supervising officer Carol Gunderson, who, after

detailing the appellant’s probation violations, told the court,

                Well, at the time, I recall, you know, sometimes use the phrase “coming to
                Jesus talk”. And that’s pretty much what it was. I mean, I – I talked to him
                like a probation officer, but also like I’d talk to one of my kids, you know, if
                they were in that situation. And it’s serious. I mean, a life was taken, you
                know. It doesn’t get anymore serious than that. So, you know, I told him
                what was expected of him. Marijuana use would not be tolerated. (RR: 62
                et seq)


         The defendant-appellant himself testified (RR: 91-111). He testified to his desire

to have joined the miitary, and to his having been rejected due to accident-related

blindness in one eye (RR: 95). He also testified as to his job working part time at a

restaurant for $7.50 per hour, and also at a pastry factory at $10.00 per hour. (RR: 96-98)




                                                !8
       Appellant’s marijuana use was partly explained by him by his belief that he may

have an addiction, and he noted that his own mother used marijuana in his house (RR:

102-104) He expressed regret for using marijuana as well (Id.) He also explained that

his failure to complete MHMR (mental health and mental retardation) treatment, to which

he had been referred by the probation officer, was complicated by his transportation

problems and scheduling conflicts with his job (RR: 105)

       He also testified to his efforts to secure more hours to earn more money and the

difficulty of doing so due to employer limitations (Id.)

       He also testified that he had always been truthful with officers about his offense

and his violations of probation. (RR: 110)



                            SUMMARY OF THE ARGUMENT

       The violations committed by the appellant did not support a sentence of nineteen

years, and the court abused its discretion in failing to consider alternatives to the

sentence, which was near the statutorily prescribed maximum.




                                               !9
                                             ARGUMENT

       ISSUE 1:      Did the court abuse its discretion in failing to consider alternatives to

a sentence near the statutory maximum?

              STANDARD OF REVIEW: “For probation-revocation cases, we have

described the appellate standard of review as whether the trial court abused its

discretion.” Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013).



              DISCUSSION:

       The court gave extensive reasons for the sentence imposed, but appears to have

focused principally on appellant’s marijuana use and his apparent (per the court) failure

to make serious efforts to discontinue it:

                      There are probation cases that we have, revocation cases that we
              have, where a person will test positive for marijuana and it’s sometimes
              seen as something that’s minor. And I suppose, like Ms. Gunderson
              compared it to, it’s not heroin and it’s not methamphetamine. Those are far
              more serious drugs, with far more serious abilities to entangle somebody in
              addiction …. I don’t know if it’s an addiction. There’s all kinds of dispute
              as to whether or not marijuana is physically addicting, like heroin or
              methamphetamine to be. But disorder? Yeah. According to your
              testimony, your very first time you ever put a joint in your pocket, you get
              caught and get arrested for it. That’s not enough to wake you up. You then,
              after smoking weed, have a horrific crash and cause the death of an
              individual. That’s not enough to wake you up.
                      If we’re to believe you, you continue to smoke marijuana right up to
              the point that you go on probation and then smoke it again while on
              probation, at least once, though I think the credible testimony is that it was
              multiple times. And while some might consider that minor, in the context
              of this case, it is the seminal issue. I don’t know what else we could




                                              !10
              possibly do to get your attention. I don’t know. (RR: 170-171, emphasis
              added)



       The Court’s error was not in revoking appellant’s community supervision and

adjudicating him guilty. “Unlike the guilt phase, the question at punishment is not

whether the defendant has committed a crime, but, instead, what sentence should be

assessed.” Ellison v. State, 201 SW 3d 714 (Tx. Crim. App. 2006).

        Courts are given wide latitude in revoking supervision, where, as here, there is

even a single violation, proved by a probationer’s own admission and plea of true. “The

trial court has discretion to revoke community supervision when a preponderance of the

evidence supports the violation of the conditions of defendant’s community supervision.”

Randle v. State, 499 SW 3d 912 (Houston Dist. 2016). That said, there were several

other ways of “getting [appellant’s] attention” without imposing a sentence near the

statutorily-prescribed maximum of 20 years. The court failed to consider any of a

number of alternatives to the 19-year sentence, insofar as the record reflects.

       The court might, for example, have given consideration to the fact that defendant’s

worst violations were mere class B misdemeanors (possessing/using marijuana). The

court might also have given greater consideration to its own determination that marijuana

smoking is a “disorder.”

       The court might also have articulated its reasons for not sentencing the defendant

to inpatient drug treatment as a condition of continued probation. Alterntively, it might



                                             !11
have ordered the defendant to serve a significant number of months in jail, this to allow

any residue of marijuana to work its way through his system before being re-released.

        The court might also have considered (and specifically stated for the record) why a

sentence of, say, 5 or 10 years, instead of the near-maximum sentence imposed, was not

more appropriate considering the relative mildness of the violations. Thus, the district

court failed to consider sentencing alternatives that were within the sentening range.1 It

may be argued that a near-maximum or even maximum sentence was appropriate

considering the harm cause to the victim and to his family by the underlying offense.

Perhaps. Appellant will not argue that the underlying offense was anything short of

extremely serious, and indeed devastating to the victim and his surviving family.2 This

argument that the underlying harm merits a near-maximum sentence now, however, is

difficult to square with the state’s agreement to (and the court’s acceptance and approval

of) the original sentence, deferring not only any imprisonment (save for 45 days of

detention as a condition of supervision [CR: 32]), but also any judgment of conviction.

        The court was acting within its authority when it threw up its hands and

adjudicated guilt — “I don’t know what else we could possibly do.” The error, the abuse



1For a case disapproving (by implication) this court’s reasoning, See United States v. Hayes, 589 F.2d
811, cert denied, 444 U.S. 847 (5th Cir. 1987), afﬁrming a sentence because the district court did
consider alternatives to the punihsment imposed.


2It is worth considering too that the offense was, as the investigating ofﬁcer determined, the result of an
accident. “I said, would a truck have been better, if he was riding in a truck? And he was like, no, this
was an un-survivable accident.” (Victim’s mother’s testimony, paraphrasing the investigating ofﬁcer, RR:
31)



                                                     !12
of discretion, was in the sentencing process, in that the court (to all appearances) failed to

give any consideration for a sentence elsewhere within the range.

       Manslaughter is among the more serious crimes for which a person might be

convicted. Yet the legislature in its wisdom determined that some such serious cases call

for sentence of as low as two years. Appellant’s violations did not show any propensity

for committing any new felony offense, much less one nearly as serious as manslaughter,

and do not otherwise merit a sentence of nineteen years. It is appellant’s position that the

case upon revocation merited a lower sentence than one near the top of the range, and

that the district court erred in failing to consider such.



                                           CONCLUSION

       For the foregoing reasons, defendant-appellant prays that the judgment of of the

trial court be reversed and remanded with instructions to conduct a new sentencing

hearing.

                                                     Respectfully submitted,

                                                     /s/ Rob Herrington
                                                     Robert J. Herrington
                                                     Counsel to appellant
                                                     SBN 00790163
                                                     P.O. Box 262234
                                                     Plano, TX 75026-2234
                                                     tel. 214.557.0577




                                               !13
                            CERTIFICATE OF WORD COUNT

       I certify that the foregoing brief, excluding tables of contents, index of authorities,
and, certificates, contains 1974 words.


                                     /s/ Rob Herrington
                                    Robert J. Herrington



                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Appellant’s Brief was

served via e-mail on March 29, 2018, upon the District Attorney of Hopkins County,

Appellate Division, at his address of record in Sulphur Springs, Texas. A copy was also

mailed to Appellant on March 30, 2018, c/o the Texas Department of Corrections, at

#02178164, TDCJ, Gurney Unit, 1385 FM 3328, Palestine, TX 75803.

                                     /s/ Rob Herrington
                                    Robert J. Herrington




                                              !14
