                                                                       ACCEPTED
                                                                   05-15-00535-CR
                                                        FIFTH COURT OF APPEALS
                                                                   DALLAS, TEXAS
                                                              10/8/2015 2:22:00 PM
                                                                        LISA MATZ
                                                                            CLERK

          Fifth Court of Appeals
  ____________________________________
                                             FILED IN
                                      5th COURT OF APPEALS
           NO. 05-15-00535-CR             DALLAS, TEXAS
  ____________________________________10/8/2015 2:22:00 PM
                                            LISA MATZ
                                              Clerk
GILBERTO GONZALEZ AGUILAR, Appellant,

                     v.

     THE STATE OF TEXAS, Appellee
  ____________________________________

          APPELLANT’S BRIEF
  ____________________________________

    Appealed from the 15th District Court
          Grayson County, Texas
       Trial Cause Number 065226
      Hon. James P. Fallon Presiding

                          Submitted by:

                          Gaylon P. Riddels
                          108 East Houston Street, Suite 200
                          Sherman, Texas 75090
                          Telephone: (903) 893-2878
                          Facsimile: 972-767-1521
                          SBN: 24065975

                          Attorney for Appellant



   ORAL ARGUMENT NOT REQUESTED
                       Identities of Parties and Counsel

Gilberto Gonzalez Aguilar, Appellant

Gaylon P. Riddels, Attorney for Appellant on Appeal, 108 East Houston Street,
Suite 200, Sherman, Texas 75090, phone (903) 893-2878, fax (972) 767-1521, email
gaylon@riddelslaw.com.

Gaylon P. Riddels, Attorney for Appellant at Trial, 108 East Houston Street,
Suite 200, Sherman, Texas 75090, phone (903) 893-2878, fax (972) 767-1521, email
gaylon@riddelslaw.com.

State of Texas, Appellee

Joe Brown, Grayson County District Attorney, Attorney for the State of Texas,
200 South Crockett Street, Sherman, Texas 75090, phone (903) 813-4361, fax (903)
892-9933

Karla Baugh Hackett, Grayson County Assistant District Attorney, Attorney
for the State of Texas on Appeal, 200 South Crockett Street, Sherman, Texas
75090, phone (903) 813-4361, fax (903) 892-9933

J. Brett Smith, Grayson County Assistant District Attorney, Attorney for
Appellee at Trial, 200 South Crockett Street, Sherman, Texas 75090, phone (903)
813-4361, fax (903) 892-9933

Laura Wheeler, Grayson County Assistant District Attorney, Attorney for
Appellee at Trial, 200 South Crockett Street, Sherman, Texas 75090, phone (903)
813-4361, fax (903) 892-9933

Hon. James P. Fallon, Presiding Judge of the 15th District Court, 200 South
Crockett Street, Sherman, Texas 75090, phone (903) 813-4200




                                       2
                                                 Table of Contents

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

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of the Case and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Issue One: The trial court erred and abused its discretion in
denying Appellant’s Motion to Suppress. That is, Mark Haning
did not have reasonable suspicion, probable cause, or exigent
circumstances to stop the vehicle driven by Appellant . . . . . . . . . . . . . . . . . . . .12

Issue Two: The trial court erred by denying Appellant’s request
for a new trial because his sentence is disproportionate and
constitutes cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . 14

Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Compliance with Rule 9.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                              3
                                                Index of Authorities

Cases                                                                                                                     Page

Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985) . . . . . . . . . . . . . 12

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) . . . . . . . . . . . . . 12

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)(en banc) . . 14

Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . 15

Lathan v. State, 20 S.W.3d 63, 68-69 (Tex. App.—Texarkana 2000, pet. ref’d) . . 15

Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L.Ed.2d 637 (1983) . . . . . 15

Jones v. State, 466 S.W.3d 252, 256, 259 (Tex. App. —Houston [1st Dist.] 2015,
pet. filed). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Lopez v. State, 777 S.W.2d 540, 541 (Tex. App. —Corpus Christi 1989, pet. ref’d) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Constitutions

U.S. Const. Amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 14, 15, 17

Statutes and Rules

Tex. R. App. P. 26.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12

Tex. R. App. P. 25.2(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Tex. R. App. P. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. R. App. P. 39.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Trans. Code § 504.945(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13

                                                                4
To the Honorable Justices of the Court of Appeals:

       Gilberto Gonzalez Aguilar, Appellant, submits this Brief in support of his

appeal of his judgment of conviction and sentence:

                        Statement of the Case and Jurisdiction

       This case is an appeal of a judgment of conviction and sentence under Cause

Number 065226 from the 15th Judicial District Court of Grayson County, Texas.

(CR, 27).1 Appellant was indicted for Possession with Intent to Deliver a Controlled

Substance Listed in Penalty Group 1 in an Amount Equal to or Greater than 400

grams. (CR, 5). The State alleged that on or about November 19, 2014, in Grayson

County, Appellant intentionally and knowingly possessed with the intent to deliver

400 grams or more of methamphetamine. (CR, 5).

       Prior to trial, Appellant filed a Motion to Suppress asserting that Mark Haning

illegally stopped Appellant’s vehicle. (CR, 11-12). The trial court heard testimony

and received evidence on Appellant’s Motion to Suppress prior to trial. (RR 2, 5-

21; CR, 11-12). The trial court denied Appellant’s Motion to Suppress. (RR 2, 21).

After the trial court’s denial of Appellant’s Motion to Suppress, Appellant pled

“guilty” to the indicted offense and elected that the jury assess his punishment. (RR

2, 25-35; CR, 14-15, 33-46). After a jury trial on punishment, on April 21, 2015,

1
 The Clerk’s Record, which is comprised of a single volume, is referenced throughout this Brief
as “CR” followed by the page number of the Clerk’s Record. The Reporter’s Record, which is
comprised of four volumes, is referenced throughout the Brief as “RR” followed by the volume
number and page number.

                                               5
Appellant was sentenced by a jury to Life in prison to the Texas Department of

Criminal Justice, Institutional Division, and was fined $250,000.00. (RR 3, 28-30;

CR, 26-30). On April 22, 2015, Appellant filed a timely notice of appeal, thus

perfecting this appeal. (CR, 64); See Tex. Rule App. Proc. 26.2(a). The trial court

signed the Trial Court’s Certification of Defendant’s Right of Appeal stating that the

case is “a plea bargain case but matters were raised by written motion filed and ruled

on before trial and not withdrawn or waived, and the [Appellant] has the right of

appeal.” (CR, 52); See Tex. Rule App. Proc. 25.2(a)(2). As a result, this Court has

jurisdiction over this appeal.




                                          6
                      Statement Regarding Oral Argument

      Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.2, Appellant does

not request oral argument before this Court of Appeals. See Tex. Rule App. Proc.

39.1 & 39.2. Although this is a meritorious appeal of a criminal case, Appellant

believes that the facts and legal arguments are adequately presented in this Brief and

in the record on appeal. Appellant also believes that the decisional process of the

Court of Appeals will not be significantly aided by oral argument. As a result,

Appellant does not request oral argument and asks that the issues presented in this

Brief be considered by this Court of Appeals by submission only.




                                          7
                               Issues Presented

Issue One: The trial court erred and abused its discretion in denying
Appellant’s Motion to Suppress. That is, Mark Haning did not have reasonable
suspicion, probable cause, or exigent circumstances to stop the vehicle driven
by Appellant.

Issue Two: The trial court erred by denying Appellant’s request for a new trial
because his sentence is disproportionate and constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States
Constitution.




                                       8
                                        Facts

              Pretrial hearing on Appellant’s Motion to Suppress

      Prior to voir dire commencing, the trial court heard Appellant’s Motion to

Suppress (RR2, 5-21). Appellant claimed that Mark Haning illegally stopped the

vehicle driven by Appellant, i.e., Mark Haning’s stop was made without reasonable

suspicion, probable cause, or exigent circumstances. (CR, 11-12). Mr. Haning

claimed that he witnessed a blue Nissan passenger car traveling northbound on

highway 75 in Sherman, Texas and that the vehicle’s rear license plate was not

properly secured. (RR 2, 8). Mark Haning claimed that his stop was justified

because the vehicle’s rear license plate was “flapping up” and violated section

504.945(a)(7) of the Texas Transportation Code. (RR 2, 13, 18). Appellant argued

that the rear license plate of the vehicle was properly secured and that Appellant did

not violate section 504.945(a)(7) of the Texas Transportation Code. (RR 2, 17-20).

After both sides rested, the trial court denied Appellant’s Motion to Suppress. (RR

2, 21).

      After the trial court’s denial of Appellant’s Motion to Suppress, Appellant

pled guilty to the indicted offense and proceeded to a jury trial for punishment

purposes only. (RR 2, 25-35; CR, 14-15, 33-46). After the State and Appellant

rested and closed, the jury assessed Appellant’s punishment at Life in prison to the




                                          9
Texas Department of Criminal Justice, Institutional Division, and a fine of

$250,000.00. (RR 3, 28-30; CR, 26-30).




                                         10
                            Summary of the Arguments

      Appellant presents the following arguments in this Brief: First, Appellant will

show that the trial court erred and abused its discretion by denying Appellant’s

Motion to Suppress because Mark Haning did not have reasonable suspicion,

probable cause, or exigent circumstances to stop the vehicle driven by Appellant.

Second, the trial court erred by denying Appellant’s request for a new trial because

Appellant’s sentence is disproportionate and constitutes cruel and unusual

punishment in violation of the Eighth Amendment to the United States Constitution.

      As to Issue One, Appellant will ask this Court to reverse the judgment of

conviction and sentence for Possession with Intent to Deliver a Controlled Substance

Listed in Penalty Group 1 in an Amount Equal to or Greater than 400 grams and

remand this case back to the trial court for a new trial, and specifically order that

Appellant’s Motion to Suppress is granted. As to Issue Two, Appellant will ask this

Court to reverse the judgment upholding a Life sentence and a $250,000.00 fine and

remand this case back to the trial court for a new trial.




                                           11
                                    Arguments

Issue One: The trial court erred and abused its discretion in denying
Appellant’s Motion to Suppress. That is, Mark Haning did not have reasonable
suspicion, probable cause, or exigent circumstances to stop the vehicle driven
by Appellant.

                                   Introduction

      In this Issue, Appellant will begin by discussing the standard of review for

this Court and then discuss how the trial court erred and abused its discretion in

denying Appellant’s Motion to Suppress.

             Standard of review is the abuse of discretion standard

      A reviewing court should review a trial court’s denial of a motion to suppress

for an abuse of discretion. See Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim.

App. 1985). A reviewing court does not engage in its own factual review; it

determines only whether the record supports the trial court’s ruling and whether the

trial court properly applied the law to the facts. See Romero v. State, 800 S.W.2d

539, 543 (Tex. Crim. App. 1990).

                   This issue is preserved for appellate review

      Appellant’s Notice of Appeal was timely filed; therefore, this Court has

jurisdiction to review the pretrial order. See Tex. Rule App. Proc. 26.2(a).

      The trial court erred and abused its discretion in denying Appellant’s
      Motion to Suppress. That is, Mark Haning did not have reasonable
      suspicion, probable cause, or exigent circumstances to stop the vehicle
      driven by Appellant


                                         12
      Here, Mark Haning testified that he stopped Appellant’s vehicle because

Appellant violated section 504.945(a)(7) of the Texas Transportation Code. (RR 2,

18-20). Section 504.945(a)(7) provides the following:

      “A person commits an offense if the person attaches to or displays on a
      motor vehicle a license plate that:…(7) has a coating, covering,
      protective substance, or other material that: (A) distorts angular
      visibility or detectability; (B) alters or obscures one-half or more of the
      name of the state in which the vehicle is registered; or (C) alters or
      obscures the letters or numbers of the license plate number or the color
      of the plate.”

Tex. Trans. Code § 504.945(a)(7). The license plate on the vehicle driven by

Appellant was a buyer’s tag that was attached to the rear of the vehicle in a visible

location. (RR 2, 17). Additionally, the license plate is attached in two separate

locations at the top of the license plate. Id. However, due to wind and the fact that

the license plate was not attached to the vehicle on the bottom portion of the license

plate, the license plate was raised and/or flapping in the wind. (RR 2, 17). Here,

there is no evidence that a coating, covering, protective substance, or other material

actually distorted the angular visibility or detectability of the license plate. Per Mark

Haning, the wind raised the license plate so that a portion of it was not legible. (RR

2, 17-20). Mark Haning unreasonably relies upon Appellant’s alleged violation of

section 504.945(a)(7) of the Texas Transportation Code in effectuating his pretextual

traffic stop of Appellant. Moreover, Mark Haning did not have probable cause or




                                           13
exigent circumstances to stop the vehicle driven by Appellant. Therefore, the trial

court abuse its discretion in denying Appellant’s Motion to Suppress.

                                    Conclusion

      The trial court erred and abused its discretion by denying Appellant’s Motion

to Suppress. Appellant thus asks this Court of Appeals to reverse the judgment of

conviction and sentence and remand this case back to the trial court for a new trial,

and order that Appellant’s Motion to Suppress be granted.

Issue Two: The trial court erred by denying Appellant’s request for a new trial
because his sentence is disproportionate and constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States
Constitution.

                Standard of review is the abuse of discretion standard

      A reviewing court should apply the de novo standard of review to the question

concerning cruel and unusual punishment, i.e., if the trial court’s sentence was

proper under that standard, then the trial court did not abuse its discretion in

assessing the sentence. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990)(en banc).

                   This issue is preserved for appellate review

      Appellant’s Notice of Appeal was timely filed, and Appellant raised his cruel

and unusual punishment claim by filing his Motion for New Trial on April 22, 2015.

(CR 56-58). Moreover, Appellant’s counsel argued at the hearing on Appellant’s

Motion for New Trial that Appellant’s sentence was excessive.

                                         14
      The trial court erred by denying Appellant’s request for a new trial because
      his sentence is disproportionate and constitutes cruel and unusual punishment
      in violation of the Eighth Amendment to the United States Constitution

      Here, Appellant’s life sentence and fine of $250,000.00 constitutes cruel and

unusual punishment. Texas courts have traditionally held that as long as the

punishment is within the range prescribed by the Legislature in a valid statute, the

punishment is not excessive. See e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex.

Crim. App. 1973). Appellant’s sentence is within a prescribed range for a first

degree felony of such nature; therefore, Appellant’s sentence does not violate the

Texas constitution. However, Appellant has a federal claim for prohibition against

grossly disproportionate punishment survives under the Eighth Amendment apart

from any consideration of whether the punishment assessed is within the range

established by the Legislature. See Lathan v. State, 20 S.W.3d 63, 68-69 (Tex.

App.—Texarkana 2000, pet. ref’d); Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d).

      Under a proportionality analysis under the Eighth Amendment, the Court

considers the following factors: (1) the gravity of the offense and the harshness of

the penalty; (2) the sentences imposed on other offenders in the same jurisdiction;

and (3) the sentences imposed for commission of the same offense in other

jurisdictions. Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L.Ed.2d 637

(1983).


                                          15
      Here, a life sentence for possession of 2,969.46 grams of methamphetamine

is too harsh for the gravity of the offense. That is, Appellant possessed a certain

illegal drug with the intent to deliver the same. Appellant was never before

convicted of a felony in the State of Texas or in any other state in the United States;

however, Appellant received a life sentence in a case wherein some persons receive

15 years in prison. For example in Jones v. State, the Defendant was convicted of

possession with the intent to deliver or manufacture phencyclidine (PCP) in an

amount greater than 400 grams and sentenced to 65 years in prison. Jones v State,

466 S.W.3d 252, 256, 259 (Tex. App.—Houston [1st Dist.] 2015, pet. filed).

However, in Jones v. State, the defendant had multiple prior felony convictions

including a conviction for possession of a controlled substance with intent to deliver.

Id. at 256. In Lopez v. State, the defendant was convicted of delivery by actual

transfer of cocaine in an amount greater than 400 grams, and the defendant was

sentenced to 15 years in prison. Lopez v. State, 777 S.W.2d 540, 541 (Tex. App.—

Corpus Christi 1989, pet. ref’d). Despite being convicted of a similar charge, the

defendant in Lopez received a sentence of 15 years. Therefore, Appellant’s sentence

of Life in prison is wholly inconsistent with (1) the sentences imposed on other

offenders in the same jurisdiction and (2) the sentences imposed for the commission

of the same offense in other jurisdictions.




                                          16
      Therefore, Appellant’s life sentence and fine of $250,000.00 constitutes cruel

and unusual punishment.

                                     Conclusion

      The trial court erred by denying Appellant’s request for a new trial because

his sentence is disproportionate and constitutes cruel and unusual punishment in

violation of the Eighth Amendment to the United States Constitution.

                               Conclusion and Prayer

      For the above reasons, Appellant respectfully prays that upon appellate

review, this Court of Appeals reverse the judgment of conviction and sentence and

remand this case back to the trial court for a new trial.

                                                Respectfully submitted,

                                                Gaylon P. Riddels Law Firm, P.C.
                                                108 East Houston, Suite 200
                                                Sherman, Texas 75090
                                                Phone: 903-893-2878
                                                Fax: 972-767-1521
                                                admin@riddelslaw.com


                                                /s/ Gaylon P. Riddels
                                                ______________________________
                                                By: Gaylon P. Riddels
                                                Attorney for Appellant
                                                State Bar No. 24065975




                                           17
                               Certificate of Service

       This is to certify that on October 8, 2015, a true and correct copy of the above
and foregoing document was served on Karla Baugh Hackett of the Grayson County
District Attorney, Appellate Division, 200 South Crockett Street, Sherman, Texas
75090, phone by facsimile to (903) 892-9933.

                                               /s/ Gaylon P. Riddels
                                               ______________________________
                                               Gaylon P. Riddels


                     Certificate of Compliance with Rule 9.4

       Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that this
document complies with the type-volume limitations because it is computer-
generated and does not exceed 15,000.00 words. Using the word-count feature of
Microsoft Word, the undersigned certifies that this document contains 1788 words
in the entire document except in the following sections: caption, identity of parties
and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix. This document also complies
with the typeface requirements because it has been prepared in a proportionally-
spaced typeface using Microsoft Word in 14-point Times New Roman.

                                               /s/ Gaylon P. Riddels
                                               ______________________________
                                               Gaylon P. Riddels




                                          18
