                                                                                        ACCEPTED
                                                                                    02-16-00386-CR
                                                                         SECOND COURT OF APPEALS
                                                                               FORT WORTH, TEXAS
                                                                                 12/21/2017 4:53 PM
                                                                                     DEBRA SPISAK
                                                                                             CLERK

                                                         Oral argument requested.

                                                                    RECEIVED IN
                                                              2nd COURT OF APPEALS
                          CAUSE NO. 02-16-00386-CR              FORT WORTH, TEXAS
                                                              12/21/2017 4:53:44 PM
                                                                  DEBRA SPISAK
                                                                       Clerk
                          IN THE COURT OF APPEALS
                     FOR THE SECOND DISTRICT OF TEXAS
                                FORT WORTH


                       CHASE MATHEW KARRENBROCK
                                                Appellant,
                                     V.


                            THE STATE OF TEXAS,

                                                State.


                              Brief of Appellant


                                          Jeff Springer
                                          State Bar No. 18966750
                                          Aubry L. Dameron
                                          State Bar No. 24093766
                                          SPRINGER & LYLE, LLP
                                          1807 Westminster
                                          Denton, TX 76205
                                          940.387.0404 (ph)
                                          940.383.7656 (fax)
                                          jeff@springer-lyle.com

                                          Attorneys for Appellant




BRIEF OF APPELLANT                                                     PAGE 1 OF 30
                     Identity of Parties and Counsel


Mr. Chase Mathew Karrenbrock
SO #180532                                        Appellant (Defendant below)
Denton County Jail, 127 N Woodrow Ln
Denton, TX 76205

Mr. Stephen Wohr, Esq.
State Bar No. 21844250
Lindsey Pruitt
                                                  Attorney for Appellant below
State Bar No. 24050179
1417 E. McKinney, Suite 110
Denton, TX 76209

Mr. Jeff Springer, Esq.
Texas Bar No. 18966750
Ms. Aubry L. Dameron, Esq.
Texas Bar No. 24093766                            Attorney for Appellant on
1807 Westminster                                  appeal
Denton, TX 76205
940.387.0404 (ph.)
940.383.7656 (fax)

The State of Texas                                Appellee (the State below)

Mr. Matthew Wiebe, Esq.
Texas Bar No. 24047101
Denton Co. Crim. Ass’t Dist. Attorney
Mr. Dustin Gossage, Esq.
                                                  Attorney for the State
Texas Bar No. 24045116
Denton Co. Crim. Ass’t Dist. Attorney
1450 E. McKinney St. Suite 3100
Denton, Texas 76209




BRIEF OF APPELLANT                                                    PAGE 2 OF 30
                                          Table of Contents
Identity of Parties and Counsel ..................................................................................2
Table of Contents .......................................................................................................3
Index of Authorities ...................................................................................................4
Statement of the Case.................................................................................................7
Statement Regarding Oral Argument ........................................................................7
Issues Presented .........................................................................................................8
ISSUE 1: Did the trial court violate Appellant’s Eighth Amendment right to
be free from cruel and unusual punishment by imposing a sixty year sentence
for a first felony offense involving no physical or bodily injury? .............................8
ISSUE 2: Did the trial court abuse its discretion by focusing on the hotel
incident to the exclusion of all other factors in evaluating whether Appellant’s
sentence was cruel and unusual under the modified Solem test adopted by the
Texas Court of Criminal Appeals in State v. Simpson? .............................................8
ISSUE 3: Did the trial court abuse its discretion by failing to properly apply
the modified Solem test adopted by the Texas Court of Criminal Appeals in
State v. Simpson?........................................................................................................8
ISSUE 4: Did the trial court err by failing to properly apply the modified
Solem test adopted by the Texas Court of Criminal Appeals in State v. Simpson? ...8
ISSUE 5: Did the trial court violate due process by considering the extraneous
offense to assess punishment? ...................................................................................8
ISSUE 6: Did the trial court violate due process by tripling Defendant’s
sentence because of a single unadjudicated extraneous bad act that alone
carried at worst a maximum 1 year sentence? ...........................................................8
Statement of Facts ......................................................................................................8
Summary of the Argument.......................................................................................11
Argument and Authorities........................................................................................12
ISSUE 1 (Restated): Did the trial court violate Appellant’s Eighth Amendment
right to be free from cruel and unusual punishment by imposing a sixty year
sentence for a first felony offense involving no physical or bodily injury? ............12
  A. Standard of Review .....................................................................................12
   B. The trial court’s sentence is grossly disproportionate, meeting the
   “gateway” inquiry. ................................................................................................14


BRIEF OF APPELLANT                                                                                          PAGE 3 OF 30
ISSUE 2 (Restated): Did the trial court abuse its discretion by focusing on
the hotel incident to the exclusion of all other factors in evaluating whether
Appellant’s sentence was cruel and unusual under the modified Solem test
adopted by the Texas Court of Criminal Appeals in State v. Simpson? ..................19
ISSUE 3 (Restated): Did the trial court abuse its discretion by failing to
properly apply the modified Solem test adopted by the Texas Court of
Criminal Appeals in State v. Simpson? ....................................................................19
ISSUE 4 (Restated): Did the trial court err by failing to properly apply the
modified Solem test adopted by the Texas Court of Criminal Appeals in
State v. Simpson?......................................................................................................20
   A.      Standard of review.......................................................................................20
   B. The trial court abused its discretion by failing to apply the modified
   Solem test. ............................................................................................................21
   C. The trial court abused its discretion by failing to use objective,
   guiding principles in sentencing. ..........................................................................22
   D. The trial court’s abuse of discretion in sentencing was harmful.................24
ISSUE 5 (Restated): Did the trial court violate due process by considering
the extraneous offense to assess punishment? .........................................................25
ISSUE 6 (Restated): Did the trial court violate due process by tripling
Defendant’s sentence because of a single unadjudicated extraneous bad
act that alone carried at worst a maximum 1 year sentence? ...................................25
PRAYER ..................................................................................................................28
CERTIFICATE OF SERVICE ................................................................................29
CERTIFICATE OF COMPLIANCE .......................................................................30


                                         Index of Authorities
Cases
Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) .................................................. 26
Adetomiwa v. State, 421 S.W.3d 922, 928 (Tex. App.—Fort Worth 2014, no pet.) .................... 12
Apprendi v. New Jersey, 530 U.S. at 476, 120 S. Ct. at 2355....................................................... 26
Apprendi v. New Jersey, 530 U.S. at 483-84 ................................................................................ 28
Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 877, 71 L. Ed. 2d 1 (1982) ............... 15
Enmund v. Florida, 458 U.S. 782, 798, 102 S. Ct. 3368, 3377, 73 L. Ed. 2d 1140 (1982).......... 14
Glover v. United States, 531 U.S. 198, 200, 202, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001).......... 25
Glover v. United States, 531 U.S. at 203, 121 S. Ct. at 700 ......................................................... 25
Graham v. Florida, 560 U.S. 48, 60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)........................... 21
Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App.1996), cert. denied, 520 U.S. 1200, 117

BRIEF OF APPELLANT                                                                                             PAGE 4 OF 30
  S.Ct. 1561, 137 L.Ed.2d 707 (1997) ......................................................................................... 23
Haley, 173 S.W.3d at 515 ............................................................................................................. 23
Hammer v. State, 461 S.W.3d at 304 ............................................................................................ 17
Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) ......................... 13
Harrington v. State, 2-08-423-CR, 2010 WL 1137046, at *2 ...................................................... 24
Harrington v. State, 2-08-423-CR, 2010 WL 1137046, at *2 (Tex. App.—Fort Worth Mar. 25,
  2010, no pet.) ............................................................................................................................ 24
Henry v. State, 02-13-00555-CR, 2015 WL 1407888 (Tex. App.—Fort Worth Mar. 26, 2015,
  no pet.) ...................................................................................................................................... 18
Huizar v. State, 12 S.W.3d at 482 ................................................................................................. 24
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) ................................................ 22
Johnson v. State, 176 S.W.3d at 98............................................................................................... 28
Lampkin v. State, 470 S.W.3d 876, 917 (Tex. App.—Texarkana 2015, pet. ref'd) ...................... 24
Lampkin v. State, 470 S.W.3d at 918 ............................................................................................ 25
Lawrence v. State, 420 S.W.3d 329, 333 (Tex. App.—Fort Worth 2014, pet. ref’d) ................... 13
Lineberger v. State, 02-12-00286-CR, 2013 WL 1666864 (Tex. App.—Fort Worth Apr. 18,
  2013, pet. ref'd)......................................................................................................................... 18
McGruder v. Puckett, 954 F.2d 313 .............................................................................................. 17
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992) ............................................................. 17
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) .............................................................................................................. 13
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.1992) .............................................................. 21
Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996) ................................................. 23
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990), on reh’g (June 19, 1991) . 20
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.1990) (op. on reh'g) ..................... 23
Moore v. State, 54 S.W.3d 529, 541–42 (Tex. App.—Fort Worth 2001, pet. ref'd) ................... 14
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)..................................................... 20
Ortega v. State, 126 S.W.3d 618, 622 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd) .......... 23
Reyes v. State, No. 08-15-00311-CR, 2017 WL 1164592, at *4 (Tex. App. Mar. 29, 2017 pet.
  ref’d) ......................................................................................................................................... 13
Roper v. Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 1195, 161 L. Ed. 2d 1 (2005) ............... 15
Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133 , 63 L. Ed. 2d 382 (1980) .............................. 17
Smith v. State, 61 Tex. Crim. 349, 351, 135 S.W. 152, 153 (1911).............................................. 27
Smith v. State, 61 Tex. Crim. at 351, 135 S.W. at, 153 ................................................................ 27
Solem v. Helm, 463 U.S. 277, 278, 103 S. Ct. 3001, 3003, 77 L. Ed. 2d 637 (1983) ................... 17
Solem v. Helm, 463 U.S. at 278, 103 S. Ct. at 3003 ..................................................................... 14
Solem v. Helm. 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ........................................ 13
State v. Medrano, 127 S.W.3d 781, 791 (Tex. Crim. App. 2004) ................................................ 22
State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) ................................................. 14
State v. Simpson, 488 S.W.3d 318, 323 (Tex.Crim.App. 2016) ................................................... 12
State v. Simpson, 488 S.W.3d at 323 ...................................................................................... 17, 21
State v. Simpson, ibid. ................................................................................................................... 13
Taylor v. State, 02-09-00325-CR, 2010 WL 4880696 (Tex. App.—Fort Worth Nov. 18, 2010,
  no pet.) ...................................................................................................................................... 18
U.S. v. Solem ................................................................................................................................ 11
Williams v. State, 958 S.W.2d 844, 845 (Tex. App.—Houston [14th Dist.] 1997, pet. ref'd) ...... 23


BRIEF OF APPELLANT                                                                                                                 PAGE 5 OF 30
Williams v. State, 958 S.W.2d at 845............................................................................................ 24


Statutes
Tex. Crim. Proc. Code Ann. art. 37.07 § 3(a) (West) ................................................................... 28
Tex. Pen. Code Ann. § 7.02 .......................................................................................................... 27
Tex. Pen. Code Ann. §§ 22.02, 1.07(a)(46) .................................................................................. 28
Tex. Pen. Code Ann.§§ 22.01;12.21 (West 2017) ........................................................................ 27


Constitutional Provisions
U.S. Const., amend. XIV, § 1 ....................................................................................................... 26




BRIEF OF APPELLANT                                                                                                     PAGE 6 OF 30
                             Statement of the Case

       The State charged Appellant with the 2016 aggravated burglary of a Denton

County residence. [CR 11; 3 RR 9]. Appellant pled not guilty. [3 RR at 9]. It was

his first felony charge. [State’s Exhs. 129-30 at CR 169-71]1. A jury found

Appellant guilty on September 27, 2016, and Appellant elected for the trial court to

assess punishment. Id.; [5 RR at 1]. The trial court assessed Appellant’s

punishment at 60 years confinement. Id. at 8, 101. Appellant then timely perfected

this appeal on October 11, 2016. [CR 86]. On October 24, 2016 Appellant also

filed a pro se motion for new trial which the trial court denied December 2, 2016.

[CR 41, 50; 5 RR 1]. This Court subsequently abated the appeal to allow Appellant

to pursue a motion for new trial on punishment disproportionality. [Abatement

Order, Jun. 20, 2017]. The trial court denied the motion September 15, 2017. [2

Supp. RR 30-31].

                     Statement Regarding Oral Argument

       Appellant requests oral argument because the issues raised merit serious

consideration and oral argument should significantly aid the Court in making its

determination.




1
   Subsequent citations to the State’s exhibits will be designated “SX” followed by exhibit
number and page, if applicable.

BRIEF OF APPELLANT                                                              PAGE 7 OF 30
                              Issues Presented

       ISSUE 1:      Did the trial court violate Appellant’s Eighth
       Amendment right to be free from cruel and unusual punishment
       by imposing a sixty year sentence for a first felony offense
       involving no physical or bodily injury?

       ISSUE 2: Did the trial court abuse its discretion by focusing on
       the hotel incident to the exclusion of all other factors in evaluating
       whether Appellant’s sentence was cruel and unusual under the
       modified Solem test adopted by the Texas Court of Criminal
       Appeals in State v. Simpson?
       ISSUE 3: Did the trial court abuse its discretion by failing to
       properly apply the modified Solem test adopted by the Texas
       Court of Criminal Appeals in State v. Simpson?
       ISSUE 4: Did the trial court err by failing to properly apply the
       modified Solem test adopted by the Texas Court of Criminal
       Appeals in State v. Simpson?

       ISSUE 5: Did the trial court violate due process by considering
       the extraneous offense to assess punishment?
       ISSUE 6: Did the trial court violate due process by tripling
       Defendant’s sentence because of a single unadjudicated
       extraneous bad act that alone carried at worst a maximum 1 year
       sentence?

                            Statement of Facts

       On March 17, 2015, Appellant Chase Karrenbrock broke into Jonathan

Jackamonis’s residence in Roanoke. [3 RR 11-13]. He was 21 years old at the

time. [CR 9]. One of Jackamonis’s sons boasted on social media about having

$60,000 in drug proceeds that belonged to an associate of Karrenbrock’s friend. [3

RR 25]. The friend talked Karrenbrock into driving the getaway car while he


BRIEF OF APPELLANT                                                       PAGE 8 OF 30
broke into the Jackamonis house to reclaim the cash. Id. That changed on the way

to the house. [3 RR 25-26]. The friend was concerned that Jackamonis might

recognize him so Appellant agreed to do the search. [3 RR 26].

       Jackamonis, one of his sons, and his young granddaughter were home when

Appellant crawled through an open window and brandished a handgun. [3 RR 39-

41, 86]. He zip tied the adults’ wrists and escorted them upstairs while he searched

for the money, leaving the granddaughter downstairs watching television. [5 RR

23, 26]. He was unable to find the money. Id. When he left he put the family in the

bathroom and asked them to stay there until he was gone. [5 RR 33-34].

       Nobody was physically harmed. [3 RR 174-75]. No property was taken. Id.

       The jury found Karrenbrock guilty of burglary of a habitation with the intent

to commit aggravated robbery. [5 RR 101]. Karrenbrock elected to have the trial

judge sentence him. [CR 49]. The judge convened a sentencing hearing and some

of the jurors stayed to watch. [5 RR 102; 2 RR Supp. 6].

       The prosecution called Kevin Krech to testify about an alleged extraneous

offense. [5 RR 122]. Krech testified that he and his two brothers were drinking

with extended family at a hotel pool. (See RR 124-25).2 Karrenbrock and a friend

were playing basketball nearby. Id. A fight broke out after Krech’s sister-in-law

made a racial remark to Karrenbrock’s friend (a “black gentleman”) and

2
 Appellant sustained a black eye and facial lacerations that left scars. [5 RR at 197]. Krech
described his brothers’ injuries as “a few scrapes and a sore nose.” [Id. at 138-39].

BRIEF OF APPELLANT                                                                     PAGE 9 OF 30
Karrenbrock confronted Krech and his brothers [5 RR 140-41]. When Karrenbrock

approached, one brother struck him in the face knocking him to the ground. Id.

The other brother then held Karrenbrock on the ground and both continued

punching him while Krech fought with Karrenbrock’s friend. [5 RR 133].

       Karrenbrock testified that he did not strike anyone during the event. [Id. at

198]. Nobody controverted this statement. 3

       At the conclusion of argument the trial court assessed Karrenbrock’s

punishment at 60 years confinement. [5 RR 221]. The court explained “I could

have considered 20, 30 years . . .” but for the altercation with the Krech brothers.

[5 RR 220].

       Karrenbrock perfected this appeal and filed a pro se motion for new trial.

[CR 99]. This Court abated the appeal to allow his appellate attorneys to assist him

in pursuing a new trial on punishment. [Abatement Order, Jun. 20, 2017]. The trial

court denied the motion. [3 CR Supp. 4]. At the new trial hearing the trial court

again explained that he added 30 – 40 years to Karrenbrock’s sentence based on

the hotel incident: “I would have considered 20 to 30 years based on the facts that

were presented just on guilt/innocence.” [2 RR Supp. 29].


3
  Appellant sustained a black eye and facial lacerations that left scars. [5 RR at 197]. Krech
described his brothers’ injuries as “a few scrapes” and a “sore nose.” [Id. at 138-39]. The record
does not indicate that charges were filed. [5 RR 158]. Appellant was never interviewed by police.
[5 RR 198]. However the State asked Appellant, “Are you aware that . . . there’s actually a
warrant for your arrest?” [5 RR 202]. Appellant answered “No, sir, I was not aware.”[5 RR
158].

BRIEF OF APPELLANT                                                                   PAGE 10 OF 30
                        Summary of the Argument

       Chase Karrenbrock was only 21 years old when he committed the offense.

He had no prior felonies and no history of violent crime. Nobody was hurt during

the offense. No property was taken. It was undisputed that he never threw a

punch during the hotel incident. Despite this, the trial judge sentenced

Karrenbrock to 60 years confinement in violation of his Eighth Amendment right

to be free of cruel and unusual punishment. Karrenbrock’s sentence is grossly

disproportionate to the offense.

       This Court abated Karrenbrock’s appeal to allow him to complain that his

sentence was disproportionate. Appellant correctly argued that the threshold for

his constitutional claim had been met requiring the trial court to consider all of

the factors described in the U.S. Supreme Court’s opinion in U.S. v. Solem.

Karrenbrock’s attorneys argued that the trial record required a lower sentence

and offered evidence that Karrenbrock’s sentence was alarmingly higher than

the norm for similar crimes in Texas and elsewhere. The trial judge disregarded

this evidence and continued to focus primarily on the hotel incident. The court

denied Appellant’s motion without complying with his duty to weigh the

majority of the Solem factors. The failure to apply the proper standard

constituted an abuse of discretion.

       The trial court’s emphasis on the hotel incident also violated Karrenbrock’s


BRIEF OF APPELLANT                                                      PAGE 11 OF 30
right to due process of law. While the court had to consider the evidence to

determine if Karrenbrock had committed an offense during the hotel incident, he

could not consider that evidence in sentencing unless an offense had been proven

beyond a reasonable doubt. No rational fact finder could have found that

Karrenbrock committed an offense during the incident. Even had he committed an

offense, it was at most a class A misdemeanor carrying a maximum sentence of

one year. No rational fact finder would have added 30 – 40 years to Karrenbrock’s

sentence because of it.      Because the trial judge did just that, he violated

Karrenbrock’s right to due process of law.

       For those reasons, Appellant’s sentence should be reversed, and the case

remanded to the trial court for a new trial on sentencing.

                         Argument and Authorities

       ISSUE 1 (Restated): Did the trial court violate Appellant’s Eighth
       Amendment right to be free from cruel and unusual punishment
       by imposing a sixty year sentence for a first felony offense
       involving no physical or bodily injury?

A.     Standard of Review

       The Texas Court of Criminal Appeals has acknowledged that the Eighth

Amendment’s prohibition against cruel and unusual punishment requires reversal

of sentences that are grossly disproportionate to the offense. See State v. Simpson,

488 S.W.3d 318, 323 (Tex. Crim. App. 2016). See also Adetomiwa v. State, 421

S.W.3d 922, 928 (Tex. App.—Fort Worth 2014, no pet.); Lawrence v. State, 420

BRIEF OF APPELLANT                                                       PAGE 12 OF 30
S.W.3d 329, 333 (Tex. App.—Fort Worth 2014, pet. ref’d). The Court adopted the

test for disproportionality from two United States Supreme Court cases. The first

prong of the inquiry relies upon the U.S. Supreme Court’s opinion in Solem v.

Helm. 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). There the Court

adopted a three factor test that requires comparing: (1) the gravity of the offense

and the harshness of the penalty; (2) the sentences imposed for similar crimes in

the same jurisdiction; and (3) the sentences imposed for similar crimes in other

jurisdictions. Id. at 292, 103 S.Ct. at 3010.

       Justice Kennedy proposed a modified Solem test in Harmelin v. Michigan,

501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). In a concurring opinion he

proposed making the first prong of Solem a “gateway” through which a defendant

must pass before a court is required to apply the remaining factors. 501 U.S. at

1005, 111 S. Ct. at 2707 (Kennedy, J., concurring). If the threshold inquiry leads

to an inference of disproportionality, then the court should apply the remaining

factors to determine if the sentence violates the Eighth Amendment. Id. Justice

Kennedy’s “modified Solem test” has been uniformly adopted by Texas courts.

See State v. Simpson, ibid.; 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); Reyes v. State,

No. 08-15-00311-CR, 2017 WL 1164592, at *4 (Tex. App. Mar. 29, 2017 pet.

ref’d) (citing several additional court of appeals opinions); Moore v. State, 54


BRIEF OF APPELLANT                                                      PAGE 13 OF 30
S.W.3d 529, 541–42 (Tex. App.—Fort Worth 2001, pet. ref'd).

B.     The trial court’s sentence is grossly disproportionate, meeting the
       “gateway” inquiry.

       “To determine whether a sentence for a term of years is grossly

disproportionate for a particular defendant's crime, a court must judge the severity

of the sentence in light of the harm caused or threatened to the victim, the

culpability of the offender, and the offender's prior adjudicated and unadjudicated

offenses.” State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016). 4 The

relative gravity comparisons “can be made in light of the harm caused or

threatened to the victim or to society, and the culpability of the offender.” Solem v.

Helm, 463 U.S. at 278, 103 S. Ct. at 3003.

          (1) The gravity of the offense does not justify the sentence.

       In this case, nothing about the offense or the evidence presented during

punishment justifies a 60 year sentence. Despite carrying a loaded weapon, the

record makes it clear that young Karrenbrock took measures to ensure that nobody

was hurt during the burglary. [5 RR 24]. 5 He repeatedly assured the victims that


4
   This analysis considers the Defendant’s own conduct and culpability rather than general
consideration of the crime and its range of sentencing. Enmund v. Florida, 458 U.S. 782, 798,
102 S. Ct. 3368, 3377, 73 L. Ed. 2d 1140 (1982) (finding the death penalty inappropriate for a
conviction of murder in the first degree and robbery because the defendant’s own conduct and
individual culpability did not warrant the death penalty).
5
  For example, he repeatedly asked Jackamonis if he needed medicine or water and cut the zip
ties when Jackamonis and his son complained that they were painful. He also allowed
Jackamonis to grab his granddaughter, who was happily running around and playing, so that she
could stay with him in the bathroom when Appellant left the house. See [5 RR 29-30; 5 RR 32-

BRIEF OF APPELLANT                                                                PAGE 14 OF 30
he would not hurt them. Id. He made sure that the child who was present saw

nothing that would frighten or upset her. Id. Even before he left the scene he cut

the zip ties used to bind Jackamonis. [5 RR 30]. Nobody was hurt and no property

was taken. [3 RR 174-75].          These are not actions one would expect from a

hardened criminal.       In fact, when Jackamonis called 911 immediately after

Appellant left the house, he told the 911 operator that Appellant “wasn’t here to

hurt anybody, he was here to get his money.” [3 RR 78; SX 103 3:44-51].

       Karrenbrock did not have a history of violence. His only prior offense is

a misdemeanor marijuana conviction. He was only 21 years old at the time of

the offense.

       An appellant’s young age must also be considered in evaluating his

sentence. Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 877, 71 L. Ed.

2d 1 (1982); Roper v. Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 1195, 161 L.

Ed. 2d 1 (2005). Recently the news media has widely reported that until the mid-

20s human brains are “wired for risky behavior.” See, e.g., CBS News, Teens’

Brains are Wired for Risky Behavior: Study, March 8, 2017, 2:36 P.M. 6




34; 3 RR 78; SX 103 3:44-51].
6
  Available online at https://www.cbsnews.com/news/teens-brains-are-wired-for-risky-behavior-
study/ .

BRIEF OF APPELLANT                                                               PAGE 15 OF 30
         Prominent academic studies have found that until their mid-20s adolescents

are prone to risky behavior.          This is particularly true of males.       One study

concluded that

         The adolescent population is highly vulnerable to driving under the
         influence of alcohol and social maladjustments due to an immature
         limbic system and prefrontal cortex. Synaptic plasticity and the
         release of neurotransmitters may also be influenced by environmental
         neurotoxins and drugs of abuse including cigarettes, caffeine, and
         alcohol during adolescence. Adolescents may become involved with
         offensive crimes, irresponsible behavior, unprotected sex, juvenile
         courts, or even prison. According to a report by the Centers for
         Disease Control and Prevention, the major cause of death among the
         teenage population is due to injury and violence related to sex and
         substance abuse.

Arain “Maturation of the Human Brain” 9 Neuropsychiatr Dis Treat 449–461

(April 3, 2013)(emphasis added).7

         While this widely reported information does not excuse Karrenbrock’s

actions, it does indicate that incarcerating him beyond age 50 is alarmingly harsh.

The record as a whole paints a picture of an immature young man who lacked early

family support and who engaged in risky behaviors. Although there was evidence

that he prepared prior to burglarizing the Jackamonis residence, most of the

evidence shows a lack of impulse control.

         The sentence was grossly disproportionate to the crime.

             (2) The sentence far exceeds other sentences within this jurisdiction
                 for similar crimes.

7
    Available online at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3621648/

BRIEF OF APPELLANT                                                              PAGE 16 OF 30
       “In the rare case in which this threshold comparison leads to an inference of

gross disproportionality, the court should then compare the defendant's sentence

with the sentences received by other offenders in the same jurisdiction and with the

sentences imposed for the same crime in other jurisdictions.” State v. Simpson, 488

S.W.3d at 323; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Solem v.

Helm, 463 U.S. 277, 278, 103 S. Ct. 3001, 3003, 77 L. Ed. 2d 637 (1983).8

       At the new trial hearing Karrenbrock offered substantial evidence to show

that his punishment was significantly greater than other courts imposition for

similar crimes. Appellant’s Exhibit 9 was a list of opinions from this Court for the

identical offense. [3 Supp. RR 9]. Exhibit 9 shows Appellant’s sentence far

exceeds virtually all sentences in similar situations in cases before this Court. Id. [3

RR Supp. 158-70]. The only sentences as high as Appellant’s involved serious

injuries (stabbings, gunshot wounds, rapes) or a finding that the perpetrator was a

prior violent or habitual offender. Id. In fact, almost all sentences that exceed ten

8
  In contrast to this case where there is no prior felony and no bodily injury, many harsh
sentences involve repeat offenders and recidivism statutes E.g., McGruder v. Puckett, 954 F.2d
313 (upholding sentence of life without parole where Defendant was a habitual offender with
multiple felony convictions for burglary, armed robbery, and prison escape prior to conviction
for burglary of an automobile); Hammer v. State, 461 S.W.3d at 304 (upholding 15 year sentence
for burglary of a habitation after petition to revoke community supervision where four other
burglary cases were pending and Defendant had attempted burglary of another home only eight
days after being placed on deferred adjudication); Rummel v. Estelle, 445 U.S. 263, 100 S. Ct.
1133 , 63 L. Ed. 2d 382 (1980) (upholding a mandatory life sentence under recidivism statute for
nonviolent felonies involving small amounts of money where Defendant could be eligible for
parole in as soon as twelve years where Defendant had been imprisoned for two prior felonies
and convicted of a third under the statute).


BRIEF OF APPELLANT                                                                 PAGE 17 OF 30
years involve some violence. Id. A few similar cases resulted in sentences under

ten years even when the defendant was violent or had prior felonies. See, e.g.,

Henry v. State, 02-13-00555-CR, 2015 WL 1407888 (Tex. App.—Fort Worth

Mar. 26, 2015, no pet.) (5 years for aggravated robbery with a deadly weapon);

Lineberger v. State, 02-12-00286-CR, 2013 WL 1666864 (Tex. App.—Fort

Worth Apr. 18, 2013, pet. ref'd) (8 years, after violating deferred adjudication

with four pending cases for burglary of a habitation); and Taylor v. State, 02-09-

00325-CR, 2010 WL 4880696 (Tex. App.—Fort Worth Nov. 18, 2010, no pet.)

(8 years after multiple violations of deferred adjudication for another burglary).

When compared to similar sentences in this Court’s jurisdiction, Karrenbrock’s

sentence is seriously disproportionate.

          (3) The sentence far exceeds other sentences in other jurisdictions
              for similar crimes.

       Karrenbrock’s sentence is even more disproportionate compared with

similar crimes in other jurisdictions. In some circumstances the exact offense

committed by Appellant is a federal crime. Federal courts are required to follow

uniform sentencing procedures that ensure federal sentences are consistent

nationwide.     Karrenbrock’s sentence is more than ten times what he would have

received under the federal sentencing guidelines for the exact same crime with the

exact same criminal history and extraneous offense. [3 RR Supp.152-157] (41-51

month sentence for offense level 22, Criminal History Category I).

BRIEF OF APPELLANT                                                     PAGE 18 OF 30
       The same is true in other state courts. Karrenbrock offered evidence of the

average sentences nationwide for violent crimes. See [3 Supp. RR Exs. 1-7].

These exhibits showed the vast majority of Texas sentences for aggravated assaults

to be under twenty years. [3 RR Supp. 149]. Well over half of convictions for

burglary of a habitation are under 10 years. [3 RR Supp. 150]. More than half of

the sentences for murder are under 40 years, 20 years less than Appellant’s

sentence. [3 RR Supp. 151].

C.     Appellant’s sentence is unconstitutionally disproportionate.

       Appellant did not deserve to be treated more harshly than others in his

situation. The facts of the offense, his age, and his lack of violent history show his

60 year sentence to be disproportionate. It is significantly higher than all similar

cases in this jurisdiction, and many times higher than in other jurisdictions across

the country. Because his sentence violates the Eighth Amendment prohibition

against cruel and unusual punishment, this Court should reverse and remand for a

new sentencing hearing.

       ISSUE 2 (Restated): Did the trial court abuse its discretion by
       focusing on the hotel incident to the exclusion of all other factors
       in evaluating whether Appellant’s sentence was cruel and unusual
       under the modified Solem test adopted by the Texas Court of
       Criminal Appeals in State v. Simpson?

       ISSUE 3 (Restated): Did the trial court abuse its discretion by
       failing to properly apply the modified Solem test adopted by the
       Texas Court of Criminal Appeals in State v. Simpson?


BRIEF OF APPELLANT                                                        PAGE 19 OF 30
       ISSUE 4 (Restated): Did the trial court err by failing to properly
       apply the modified Solem test adopted by the Texas Court of
       Criminal Appeals in State v. Simpson?

       The record shows that the trial judge ignored most of the factors required to

evaluate whether Karrenbrock’s sentence was cruel and unusual.          Instead, the

trial judge focused almost exclusively on the hotel incident. At least twice the

judge admitted that he added 30 – 40 years to Appellant’s sentence, doubling or

tripling it based on that fact alone. The trial judge abused his discretion by

disregarding most of the evidence necessary to apply the modified Solem test. The

trial judge also abused his discretion by failing to properly apply the test and by

giving undue weight to the hotel incident.

A.     Standard of review.

       A court abuses its discretion when it fails to follow the appropriate analysis

and balancing factors. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990), on reh’g (June 19, 1991). The test is whether the court acted without

reference to guiding rules and principles. Id. It is not enough that the appellate

court might disagree with the outcome. Id. “[A] trial court judge is given a ‘limited

right to be wrong’”, but only if the result is not reached in an arbitrary or

capricious manner. Id. citing Rosenberg, Judicial Discretion, 38 Ohio Bar 819, 823

(1965). See also Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).




BRIEF OF APPELLANT                                                        PAGE 20 OF 30
B.     The trial court abused its discretion by failing to apply the modified
       Solem test.
       At the hearing on his motion for new trial, Karrenbrock argued that his

sentence was cruel and unusual in violation of the Eighth Amendment. See State v.

Simpson, 488 S.W.3d at 323. Case law clearly required the trial judge to apply the

modified Solem factors to make its determination. Id.; Graham v. Florida, 560

U.S. 48, 60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); McGruder v. Puckett, 954

F.2d 313, 316 (5th Cir.1992). The record shows that the trial judge disregarded the

vast majority of the factors in making its decision to deny the motion.

       Instead of applying the factors, the court opined that “to change the sentence

would be dishonest” and “unethical” because the sentence is “wholly on me. It’s

my responsibility.” [2 RR Supp. 28, 30]. He said that the hotel incident showed

Appellant’s “meanness of spirit and apparent viciousness…. He is who he is. What

occurred, occurred.” [2 RR Supp. 29-30]. “It’s just this is what this case deserves,

what he deserves.” [2 RR Supp. 31].

       There is no indication that he considered any of the other factors. In fact the

transcript of the hearing shows that he completely ignored the last two prongs of

Solem: He admitted as much by acknowledging that Appellant’s sentence was the

same as another defendant convicted of a “violent rape during a burglary” in his

own court the prior week. Id. He was also personally aware that a murderer

sentenced “down the hall” received a lesser sentence. Id. at 30.          He did not

BRIEF OF APPELLANT                                                        PAGE 21 OF 30
consider either sentence relevant, and stated that the “attorneys wisely chose to go

with the jury” for sentencing. Id.

       The record also indicates that the judge ignored the substantial evidence

offered by Karrenbrock’s attorneys proving that his sentence far exceeded the norm.

       The trial judge was required to apply all of the Solem factors. By focusing

on the hotel incident to the exclusion of every other prong of Solem was error or

an abuse of discretion. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.

App. 1984).9

C.     The trial court abused its discretion by failing to use objective, guiding
       principles in sentencing.
       Since the trial court assessed Karrenbrock’s punishment the judge took on

the dual role of both gatekeeper and fact finder with respect to the prior bad acts.

See State v. Medrano, 127 S.W.3d 781, 791 (Tex. Crim. App. 2004). The

gatekeeper role required the judge to make the threshold determination of

relevance. Id. An arrest, indictment, or other charge is not sufficient for an

inference of guilt. Tex. Code Crim. Proc. Ann. § 2.01 (West 2017). Having

decided to admit the evidence, the fact-finder role then required the judge to

determine whether the bad conduct was proved beyond a reasonable doubt. See




9
  There the court considered a presentencing report to the exclusion of all other evidence.
Without articulating the standard, the court simply concluded that the trial court abused its
discretion. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).

BRIEF OF APPELLANT                                                              PAGE 22 OF 30
Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996); Ortega v. State,

126 S.W.3d 618, 622 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd).

           “[T]he court may then only consider the extraneous offense in assessing

punishment if it finds that the offense was proven beyond a reasonable doubt.”

Williams v. State, 958 S.W.2d 844, 845 (Tex. App.—Houston [14th Dist.] 1997,

pet. ref'd). A trial court abuses its discretion when its erroneous decision to

consider the extraneous offense is beyond the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.1990) (op. on reh'g);

see Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App.1996), cert. denied,

520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997).

           The extraneous offense evidence fell far short of proving an offense beyond

a reasonable doubt. [5 RR 133]; n. 3, supra. See Huizar v. State, 12 S.W.3d at 482;

Haley, 173 S.W.3d at 515.                       In fact, the most objective interpretation of the

evidence is that Karrenbrock was the victim rather than the perpetrator of the

assault. Krech’s sister-in-law provoked the conflict by yelling an inflammatory,

racial insult about Karrenbrock’s friend because of his choice in music. [5 RR

141-42].          When Karrenbrock approached and confronted Krech’s brother, the

brother hit Karrenbrock in the face and knocked him to the ground. [5 RR 140,

197-98]. Karrenbrock never threw a punch. [5 RR 133, 142-43, 198]10. The trial


10
     The record is clear that Appellant’s friend punched one of the witness’s brothers, but the record is not clear on

BRIEF OF APPELLANT                                                                                         PAGE 23 OF 30
court would not have been permitted to allow a jury to hear the evidence of this

offense. See Huizar v. State, 12 S.W.3d at 482. For the same reason, the trial court

should not have used it to justify adding 30 or 40 years to Karrenbrock’s sentence.

        A finding of abuse of discretion requires proof that the court considered the

improper evidence in arriving at the sentence. Harrington v. State, 2-08-423-CR,

2010 WL 1137046, at *2 (Tex. App.—Fort Worth Mar. 25, 2010, no pet.);

Williams v. State, 958 S.W.2d at 845. The record in this case is replete with

comments by the trial judge that he doubled or tripled Karrenbrock’s sentence

based on the extraneous offense. As discussed previously, the trial judge said that

he would have sentenced Karrenbrock to 20 to 30 years based on the

guilt/innocence portion of the trial. He added the additional 30 to 40 years based

almost exclusively on the unadjudicated “bad act.” [3 RR Supp. 29].

        The trial judge abused its discretion by doubling or tripling Karrenbrock’s

sentence based on an extraneous bad act that had not been proven beyond a

reasonable doubt. See Williams v. State, 958 S.W.2d at 845; Harrington v. State,

2-08-423-CR, 2010 WL 1137046, at *2. [5 RR 133; 142-43].

    D. The trial court’s abuse of discretion in sentencing was harmful.

        Even a small increase in a sentence is prejudicial. Lampkin v. State, 470

S.W.3d 876, 917 (Tex. App.—Texarkana 2015, pet. ref'd). See Glover v. United


other actions in the incident. No evidence controverted Karrenbrock’s testimony that he never struck anybody.

BRIEF OF APPELLANT                                                                                  PAGE 24 OF 30
States, 531 U.S. 198, 200, 202, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001). “[A]ny

amount of actual jail time has Sixth Amendment significance Glover v. United

States, 531 U.S. at 203, 121 S. Ct. at 700. Prejudice occurs when the facts

demonstrate harm beyond mere conjecture or speculation. Lampkin v. State, 470

S.W.3d at 918.

       In this case, the trial judge twice stated that the extraneous bad act increased

Karrenbrock’s sentence by a multiple of two or three, adding 30 to 40 years to the

punishment. See id. [5 RR 220; 3 RR Supp. 29]. The trial court’s abuse of

discretion constituted harmful error.

       ISSUE 5 (Restated): Did the trial court violate due process by
       considering the extraneous offense to assess punishment?
       ISSUE 6 (Restated): Did the trial court violate due process by
       tripling Defendant’s sentence because of a single unadjudicated
       extraneous bad act that alone carried at worst a maximum 1 year
       sentence?
       Because the State failed to prove the hotel incident constituted an extraneous

offense beyond a reasonable doubt, the trial court violated Karrenbrock’s right to

due process of law under the Fifth and Fourteenth Amendments by using the

incident to increase Karrenbrock’s sentence. Even if the trial court could have

considered the hotel incident an offense, it was at most a misdemeanor assault

carrying a maximum punishment of a year. The trial court violated Karrenbrock’s

right to due process by adding 30 to 40 years to the sentence based on the event.


BRIEF OF APPELLANT                                                         PAGE 25 OF 30
       The 14th Amendment proscribes deprivation of liberty without due process

of law. U.S. Const., amend. XIV, § 1; Apprendi v. New Jersey, 530 U.S. at 476,

120 S. Ct. at 2355. Due process requires that extraneous bad acts be established

beyond a reasonable doubt. Id. 530 U.S. at 483-84; 120 S. Ct. at 2359.

       A due process complaint requires the court to review “all of the evidence in

the light most favorable to the verdict to determine whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011).

       The evidence fails to prove that Karrenbrock committed an offense during

the hotel incident. First, there was no evidence showing Karrenbrock committed

an assault. Krech, the state’s witness to the event, testified that his brother threw

the first punch during the incident, then another brother prevented Karrenbrock

from getting back up from the floor. [5 RR 133; 142-43]. The brothers then

pinned Karrenbrock to the floor and punched him in the head. [5 RR 197]. There

was no evidence that Karrenbrock ever threw, much less landed, a blow. [5 RR

133; 142-43].

       Krech testified that Karrenbrock’s friend punched his brother’s nose and that

“someone” grabbed his wife. [5 RR 134]. 11 Krech testified that he and his brothers


11
  All other references to an assault are based on the witness and his family’s characterization of
the incident to the police, but do not contain facts indicating an assault by Appellant. [5 RR 149,
151, 155].

BRIEF OF APPELLANT                                                                     PAGE 26 OF 30
were injured in the hotel incident, but he did not testify that Karrenbrock inflicted

the injuries or even threw a punch. [5 RR 133, 138-39]. Without evidence that

Karrenbrock committed an assault that caused bodily harm, Karrenbrock could not

be held criminally responsible. See Tex. Pen. Code Ann. § 7.02; Smith v. State, 61

Tex. Crim. 349, 351, 135 S.W. 152, 153 (1911).

       There was evidence that Karrenbrock’s friend participated in the fight.

Krech testified that while his brothers held Karrenbrock down he fought with

Karrenbrock’s friend. However Karrenbrock is not responsible for his friend’s

conduct:

       Under no phase of the law of principals can a party be guilty as a
       principal from the fact of knowledge on his part that somebody was
       making an unlawful attack upon a third party. He must do something.
       He must aid and encourage by words or gestures, or do some act in
       the way of encouragement of the actual participants in order to make
       him guilty as a principal. The mere fact that a party may have
       knowledge of a crime will not make him guilty as a principal.

Smith v. State, 61 Tex. Crim. at 351, 135 S.W. at, 153. The trial court violated

Karrenbrock’s due process rights in considering the hotel incident to increase

Karrenbrock’s sentence because no rational fact finder could have found

Karrenbrock committed an offense beyond a reasonable doubt.

       Even if the hotel incident amounted to an offense, it was at best a class “A”

misdemeanor carrying a maximum 1 year sentence.            Tex. Pen. Code Ann.§§

22.01;12.21 (West 2017). Krech testified that he fell and injured his shoulder


BRIEF OF APPELLANT                                                       PAGE 27 OF 30
during the incident and that his brothers had some scratches and a sore nose. No

rational fact finder would find these serious bodily injuries constituting felony

aggravated assault. See Tex. Pen. Code Ann. §§ 22.02, 1.07(a)(46). And no

rational fact finder would add 30 – 40 years to a sentence based on an

unadjudicated misdemeanor carrying a maximum 1 year punishment.

       The trial court’s sentence violates due process because the court sentenced

Defendant for an unadjudicated bad act that was not proved beyond a reasonable

doubt. Johnson v. State, 176 S.W.3d at 98. Despite this the court relied on the

event to increase Karrenbrock’s sentence. [5 RR 220; 3 RR Supp. 29]. See 37.07 §

3(a). Even if he could consider the incident, no rational fact finder would have

used it to increase the punishment 30 to 40 years.

       The trial court violated Karrenbrock’s due process rights by tripling

Karrenbrock’s sentence on the basis of the unproved misdemeanor.           See id.;

Apprendi v. New Jersey, 530 U.S. at 483-84.

                                 PRAYER

       THEREFORE, for the reasons explained above, Appellant requests the

Court to reverse Appellant’s sentence and remand this case to the trial court for a

new sentencing hearing. Appellant also requests general relief.

                                              Respectfully submitted,

                                              /s/ J. Jeffrey Springer
                                              J. Jeffrey Springer

BRIEF OF APPELLANT                                                      PAGE 28 OF 30
                                             Texas Bar No. 18966750
                                             jeff@springer-lyle.com
                                             Aubry L. Dameron
                                             Texas Bar No. 24093766
                                             aubry@springer-lyle.com
                                             SPRINGER & LYLE, LLP
                                             1807 Westminster
                                             Denton, Texas 76205
                                             Tel: (940) 387-0404




                      CERTIFICATE OF SERVICE

       I certify that on December 21, 2017, I caused to be served the foregoing

instrument on the following counsel of record via the Court’s electronic case filing

system pursuant to Tex. R. App. P. 9.5. Upon notification that the electronically

filed brief has been accepted as sufficient, a courtesy hard copy of this document

will be mailed to the State and a hard copy will be served by first-class United

States mail, postage prepaid, to Appellant, Chase Mathew Karrenbrock, SO

#180532, Denton County Jail, 127 N Woodrow Ln, Denton, TX 76205.


Matthew C. Wiebe, Esq.
Denton County Criminal District Attorney
1450 E. McKinney, Suite 3100
Denton, TX 76209


                                             /s/ J. Jeffrey Springer
                                             J. Jeffrey Springer



BRIEF OF APPELLANT                                                       PAGE 29 OF 30
                       CERTIFICATE OF COMPLIANCE

       In compliance with Tex. R. App. P. 9.4(i), I certify that this document contains

5,612 words. This document was created in Microsoft Word. The body is in

conventional 14 point text, and the footnotes are in conventional 12 point text. I have

relied on the Microsoft Word software and word-count generated by the software in

making this certificate.


                                              /s/ J. Jeffrey Springer
                                              J. Jeffrey Springer




BRIEF OF APPELLANT                                                         PAGE 30 OF 30
