                      PD-1674-15                                    PD-1674-15
                                                   COURT OF CRIMINAL APPEALS
                                                                   AUSTIN, TEXAS
                                                Transmitted 12/28/2015 11:45:34 AM
                                                   Accepted 12/28/2015 2:22:15 PM
              NO.     __________________                            ABEL ACOSTA
                                                                            CLERK

  TO THE COURT OF CRIMINAL APPEALS OF TEXAS



       DEMARCUS ANTONIO TAYLOR, Appellant
                       v.
          The State of Texas, Appellee



                     ***************

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                     ***************

             FROM THE COURT OF APPEALS

        FIFTH APPELLATE DISTRICT OF TEXAS

                      DALLAS, TEXAS

                    NO.   05-15-00567-CR

                   DALLAS COUNTY
              TRIAL COURT NO. F1457392




                                           R. Scott Walker
                                      STATE BAR # 24004972
December 28, 2015                   222 W. Exchange Avenue
                                      Fort Worth, TX 76164
                                            (817) 478-9999
                                  (817) 977-0163 FACSIMILE
                                    Attorney for Appellant

            ORAL ARGUMENT NOT REQUESTED
                              1
                 TABLE OF CONTENTS

                                                 PAGE

TABLE OF CONTENTS. . . . . . . . . . . . . . . .     2

IDENTITY OF TRIAL JUDGE PARTIES AND COUNSEL    . .   3

INDEX OF AUTHORITIES   . . . . . . . . . . . . . . 4

STATEMENT DECLINING ORAL ARGUMENT    . . . . . . .   5

STATEMENT OF THE CASE . . . . . . . . . . . . . . 5

STATEMENT OF PROCEDURAL HISTORY OF THE CASE   . .    6

GROUNDS FOR REVIEW     . . . . . . . . . . . . . .   6

QUESTIONS FOR REVIEW (Failing to bring a

disproportionate sentence complaint before the

trial court is not waiver.). . . . . . . . . . .     6

ARGUMENT . . . . . . . . . . . . . . . . . . . .     7

PRAYER . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . 12




                           2
   IDENTITY OF TRIAL JUDGE,PARTIES AND COUNSEL

    The following is a complete list of the trial
judge and all parties, as well as the names and
addresses of all counsel.
Trial Judge:              Honorable Paul Banner

Appellant:                Demarcus Antonio Taylor

Trial Counsel:            Carlton Hughes
                          Attorney at Law
                          6060 North Central
                          Expressway, Suite 560
                          Dallas, Texas 75206
Appellate                 R. Scott Walker
Attorney for Appellant:   Attorney at Law
                          222 W. Exchange Avenue
                          Fort Worth, Texas 76164

Appellee:                 The State of Texas

Trial Attornys for        Andrew Novak and Ms.
Appellee:                 Janie Kunnathusseril
                          Dallas County Assistant
                          District Attorney
                          133 North Riverfront
                          Blvd., LB-19
                          Dallas, Texas 75207

Appellate Attorney for    Susan Hawk
Appellee:                 Dallas County
                          District Attorney
                          133 North Riverfront
                          Blvd., LB-19
                          Dallas, Texas 75207




                          3
               INDEX OF AUTHORITIES

                       CASES

Ex parte Beck,
    922 S.W.2d 181 (Tex.Crim.App. 1996)   . . . . 7

Ex parte McIver,
    586 S.W.2d 851 (Tex.Crim.App. 1979)   . . . . 7

Noland v. State,
    264 S.W.3d 144 (Tex.App.-—Houston [1st Dist.]
    2007) . . . . . . . . . . . . . . . . . . . 7

McGruder v. Puckett,
    954 F2d 313, (5th Cir. cert. denied) . . . .   9

Wynn v. State,
    219 S.W.3d 54 (Tex.App.--Houston [1st dist]
    2006) . . . . . . . . . . . . . . . . . . .    7



                     STATUTES

Texas Rules of Appellate Procedure,
    66.3(b) . . . . . . . . . . . . . . . . . .    6




                         4
    All references to Texas statutes, rules, etc.
are references to the latest edition published by
West Publishing Company, unless otherwise
indicated.
DEMARCUS ANTONIO TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee


                     ************
     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                     ************
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:

          STATEMENT DECLINING ORAL ARGUMENT

      Oral argument of this case is not requested on

behalf of Appellant.

                 STATEMENT OF THE CASE

      This appeal has resulted from a criminal
prosecution for possession of a controlled
substance with intent to deliver.    The maximum
penalty for the charge is 99 years or life in
prison.   Attorney Carlton Hughes, of Dallas, Texas
represented Mr. Taylor on the charge.    On April
22, 2015, appellant pled not guilty to the
allegations. (R.R. Vol. 3, p. 12).   After evidence

                           5
was presented, the jury found the defendant guilty
of the charge, found the allegation of a deadly
weapon to be true, and found the allegation that
the offense was committed in a drug-free zone to
be true.   (R.R. Vol. 4, p. 90).    On April 23,
2015, after evidence was presented, the jury
assessed punishment at thirty years confinement.
(R.R. Vol.5, p. 120).
    STATEMENT OF PROCEDURAL HISTORY OF THE CASE

    The Court of Appeals rendered its decision and

delivered its written memorandum opinion on

Novenber 25, 2015.     The deadline for filing a

Petition for Discretionary Review is December 25,

2015.

                 GROUNDS FOR REVIEW

    Texas Rule of Appellate Procedure 66.3(b):     The

Court of Appeals has decided an important question

of State law which should be settled by the Court

of Criminal Appeals.

                 QUESTION FOR REVIEW

    Failing to bring a disproportionate sentence

complaint before the trial court is not waiver

because such a sentence is an illegal sentence and


                            6
is, therefore, void, and a void sentence can be

brought up for the first time on appeal.

                          ARGUMENT

    Failing to bring a disproportionate sentence

complaint before the trial court is not waiver.

The Court of Appeals held that a defendant waives

the right to appeal on a disproportionate sentence

complaint unless he objects to the disproportionate

sentence   at   the    trial   court     or   complains   in   a

motion   for    new   trial.       The   First   District      of

Houston has agreed.        Noland v. State, 264 S.W.3d

144, 152 (Tex.App.--Houston [1st Dist.] 2007, pet.

Ref’d), Wynn v. State, 219 S.W.3d 54, 61 (Tex.App.-

-Houston [1st Dist.] 2006, no pet.).           However, these

holdings should be overturned.

    The Court of Criminal Appeals has held that a

sentence outside the statutory range is void and

that the complaint can be brought for the first

time on appeal.       Ex parte Beck, 922 S.W.2d 181, 182

(Tex.Crim.App. 1996), Ex parte McIver, 586 S.W.2d

851, 854 (Tex.Crim.App. 1979).           The analysis is


                               7
that an illegal sentence is one that is

unauthorized by law and is, therefore, void.              A

sentence which violates the Eighth Amendment,

because it is a disproportionate sentence, is also

an illegal sentence which is not authorized by the

Eighth Amendment to the U.S. Constitution.             Any

sentence that violates the U.S.Constition is

certainly an illegal sentence.          After all, the U.S.

Constitution is the supreme law of the land.

Therefore, any sentence that violates the U.S.

Constitution is also void, and the complaint should

be reviewable when brought for the first time on

appeal.    Any cases holding otherwise should be

overruled.

       Furthermore,   there    are    practicality    concerns

with      holding     that     failing       to      bring    a

proportionality complaint before the trial court is

waiver.     When a trial judge pronounces a sentence,

the trial is then over.            It doesn’t make sense to

require    an   objection     after    the   trial   is   over.

Furthermore, how can a defendant be expected to be


                               8
ready to present evidence as to proportionality as

soon as the sentence is pronounced?

      Requiring    a       proportionality        complaint    in     a

motion for new trial would also be problematic.

There are time restraints involved in a motion for

new trial.      Rarely is the reporter’s record of the

trial prepared for use at a hearing on a motion for

new    trial.          A    reporter’s     record     is      usually

necessary to develop a claim of proportionality.

In    order   to   win      a   proportionality      complaint,       a

defendant       must        show    that    his      sentence        is

disproportionate           to   other   similar    crimes     in    the

jurisdiction and other jurisdictions.                 McGruder v.

Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied.

It would be just short of impossible to compile

sufficient evidence of the average sentences for

similar crimes in Texas and in other jurisdictions.

Compiling this kind of evidence is nothing short of

monumental.        After all, the analysis requires a

comparison of similar criminal acts which lead to

similar criminal charges, not just similar criminal

charges.      The actual actions of the defendants must
                                   9
be compared, not merely cases involving the same

statutory      charge.        Therefore,        it   could   be     that

every    case     used   as    a     comparison      case    must     be

examined to see if the criminal actions of that

particular defendant was similar to the criminal

actions of the appellant.                    Again, compiling this

kind of evidence during the short time in which a

defendant has to prepare for a hearing on a motion

for new trial would be impossible.

      The holding of the Court of Appeals’ opinion,

in actuality, obliterates the constitutional right

to proportionate sentencing.                 When appellate courts

create    rules    which      make      it    impossible     to    avail

oneself   to    constitutional          guarantees,     the       courts

are in effect taking away those guarantees.                       Again,

the   line   of    cases   that require an            objection to

proportionality or a complaint in a motion for new

trial should be overturned.

                              PRAYER

      WHEREFORE, PREMISES CONSIDERED, Demarcus

Antonio Taylor, Appellant, prays that this Petition

for Discretionary Review be granted; that this case
                                   10
be submitted to the Court; that the Court of

Appeals’ decision be reversed and for such other

relief for which he shows himself entitled.

                     Respectfully Submitted,

                     s/Scott Walker



                     By: Scott Walker

                     222 W. Exchange Avenue
                     Fort Worth, Texass 76164
                     (817) 478-9999
                     (817) 977-0163 Fax
                     Attorney for Appellant


              CERTIFICATE OF SERVICE


    A copy of this petition was served by first
class mail to the Office of Criminal District
Attorney, Tarrant County Courthouse, 401 W.
Belknap, Fort Worth, Texas 76196 and to the State
Prosecuting Attorney at P.O. Box 12405, Austin,
Texas 78711 on the 25h day of December, 2015.


                              s/Scott Walker
                              Scott Walker




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                CERTIFICATE OF COMPLIANCE


    I certify that this document copmplies with the
length requirements as set forth by the Texas Rules
of Appellate Procedure in that this document
contains 1634    words, and that the document is in
14 point type.
                                s/Scott Walker
                                Scott Walker




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APPENDIX




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