                                                                            PD-0599-15
                                                          COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
November 9, 2015
                                                          Transmitted 11/9/2015 2:19:37 PM
                                                            Accepted 11/9/2015 2:25:14 PM
                              PD-0599-15                                    ABEL ACOSTA
                                                                                    CLERK

              IN THE TEXAS COURT OF CRIMINAL APPEALS
          _________________________________________________

                    THE STATE OF TEXAS
                       RESPONDENT-APPELLANT

                                 vs.

                   MARK TWAIN SIMPSON
                        PETITIONER-APPELLEE
          _________________________________________________

                   ON DISCRETIONARY REVIEW FROM
                    THE FIFTH COURT OF APPEALS
                     CAUSE NO. 05-14-00618-CR

             APPEAL FROM CRIMINAL DISTRICT COURT NO. 4
              OF DALLAS COUNTY, CAUSE NO. F13-56596-K
          _________________________________________________

         PETITIONER’S BRIEF ON THE MERITS
          _________________________________________________

     BRUCE ANTON                       SORRELS, UDASHEN & ANTON
     State Bar No. 01274700            2311 Cedar Springs, Suite 250
     ba@sualaw.com                     Dallas, Texas 75201
                                       214-468-8100 (office)
     BRETT ORDIWAY                     214-468-8104 (fax)
     State Bar No. 24079086
     bordiway@sualaw.com               Counsel for Petitioner/Appellee
                  Identity of Parties and Counsel

For Respondent-Appellant the State of Texas:

     GEORGE LEWIS
          Guilty plea and motion for new trial counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
     133 North Riverfront Boulevard
     Dallas, Texas 75207

     LORI L. ORDIWAY
          Appellate counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

For Petitioner-Appellee Mark Twain Simpson:

     BRUCE ANTON
          Guilty plea and motion for new trial counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs, Suite 250
     Dallas, Texas 75201

     BRUCE ANTON
     BRETT ORDIWAY
         Appellate counsel of record
     SORRELS, UDASHEN & ANTON

Trial court:

     THE HONORABLE DOMINIQUE COLLINS
     CRIMINAL DISTRICT COURT NUMBER 4




                                   2
                                        Table of Contents


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

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

Statement of the Case and Procedural History ........................................ 5

Issue Presented. ........................................................................................ 7

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

Summary of the Argument ..................................................................... 10

Argument ................................................................................................. 11

   Simpson produced evidence or pointed to evidence in the trial record
   that substantiated his legal claim in his motion for new trial ........... 11
      I. The court of appeals’s holding was based on its substitute
           analysis of whether Simpson proved his claim ........................ 11
      II. The court undertook the wrong analysis because it read
           “substantiate” to mean “prove,” rather than “support” ........... 13
      III. At the very least, Simpson produced some evidence to support
           his claim .................................................................................... 15

Prayer ...................................................................................................... 17

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

Certificate of Compliance ........................................................................ 18




                                                       3
                                            Index of Authorities

Cases

Brown v. State, 870 S.W.2d 53 (Tex. Crim. App. 1994) ..............................15
Howell v. State, 175 S.W.3d 786 (Tex. Crim. App. 2005) ...........................15
Sims v. State, 84 S.W.3d 768 (Tex. App.—Dallas 2002, pet.
ref’d) ........................................................................................................................17
State v. Herndon, 214 S.W.3d 901 (Tex. Crim. App.
  2007)....................................................................................... 9, 10, 11, 12, 14, 16
State v. Simpson, No. 05-14-00618-CR, 2015 WL 1811862 (Tex.
  App.—Dallas Apr. 20, 2015) ............................................................... 6, 13, 14
State v. Spigel, No. 05-13-00314-CR, 2014 WL 1022530 (Tex. App.—
  Dallas 2014, no pet.)........................................................................................16
State v. Stewart, 282 S.W.3d 729 (Tex. App.—Austin 2009,
  no pet.) ................................................................................................................13
State v. Thomas, 428 S.W.3d 99 (Tex. Crim. App. 2014)............................13
State v. Varkonyi, No. 08-06-00262-CR, 2008 WL 821580 (Tex.
  App.—El Paso 2008, pet. dism’d) .................................................................16
State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013)..........................15

Statutes

TEX. PEN. CODE § 12.32 .......................................................................................14
TEX. PEN. CODE § 12.42 .......................................................................................14
TEX. PEN. CODE § 29.02 .........................................................................................5
TEX. PEN. CODE § 29.03 .........................................................................................5

Other Authorities

Merriam–Webster Online Dictionary. .............................................................16




                                                               4
          Statement of the Case and Procedural History

     A Dallas County grand jury indicted Simpson on June 26, 2013, for

robbery, enhanced to a first-degree felony by a previous conviction for

aggravated robbery. See TEX. PEN. CODE §§ 29.02 & 29.03; (CR: 18). He

entered an open plea of guilty to the district court on March 13, 2014,

which then on April 3, 2014, sentenced him to 25 years’ imprisonment.

(RR2: 5; RR3: 20); (CR: 56-60).

     Simpson filed a motion for new trial alleging that his sentence “con-

stitute[d] a violation of the [Eighth Amendment] prohibition against

cruel and unusual punishment.” (CR: 64). After conducting a hearing on

the matter, the court granted Simpson a new punishment trial. (RR4: 26).

The State then timely filed notice of appeal. (CR: 72-73).

     Before the Fifth Court of Appeals, the State complained that the

district court abused its discretion in granting Simpson’s motion for new

trial. (St. Br. at 15). Simpson responded that the State’s analysis em-

ployed the wrong standard of review, and that, under the correct stand-

ard, the district court properly exercised its discretion. The court of ap-

peals agreed the State used the wrong standard, but nonetheless con-

cluded the trial court abused its discretion in granting Simpson’s motion


                                    5
for new trial. State v. Simpson, No. 05-14-00618-CR, 2015 WL 1811862

(Tex. App.—Dallas Apr. 20, 2015). Accordingly, the court vacated the or-

der and reinstated the trial court’s judgment. Id. No motion for rehearing

was filed.

     Simpson filed a petition for discretionary review in this Court on

June 11, 2015. This Court granted the petition on September 23, 2015.

This brief now follows.




                                    6
                Issue Presented

Whether Simpson produced evidence or pointed to
evidence in the trial record that substantiated his
legal claim in his motion for new trial.




                        7
                          Statement of Facts

     Simpson was sentenced to 25 years’ imprisonment for pawning a

PlayStation video game system that two other men stole in the course of

a robbery. (RR3: 10-14, 18-19). At his sentencing hearing, the State had

introduced evidence that, 30 years prior, when Simpson was a teenager,

he had been involved in a one-month rash of 16 robberies. (RR3: 7-8). And

after being released from prison in 1999, he had committed various minor

offenses: failing to report his work address to his probation officer; cash-

ing a check forged by a coworker; and stealing $20 worth of screws from

a hardware store. (RR3: 32-33).

      In light of the minor magnitude of both the crime at issue here and

Simpson’s recent criminal history, as well as the remoteness of his other-

wise 30-year-old criminal history, Simpson filed a motion for new trial

alleging that his sentence “constitute[d] a violation of the [Eighth

Amendment] prohibition against cruel and unusual punishment.” (CR:

64). Specifically, Simpson argued his sentence was “so far outside the so-

cietal norms which govern the assessment of punishment” because it “vi-

olate[d] the proportionality tenant [sic] of the Eighth Amendment” and




                                     8
because it was “disproportionate when viewed in light of the types of sen-

tences on [sic] the co-defendant,” and for the typical robbery defendant.

(CR: 64-66).

     The district court conducted a hearing on the motion on May 1,

2014, at which it inquired as to Simpson’s co-defendant’s sentence and

then heard testimony from Simpson’s mother and sister covering his

criminal history. (RR4: 4, 7-22). Simpson argued that a more appropriate

sentence would be treatment for his drug addiction and strict supervision

in the home. (RR4: 23-24). The State, pointing to this Court’s opinion in

State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007), argued that

the court did not have the authority to grant Simpson’s motion unless the

original proceeding was not in accordance with the law, and that here,

the only asserted basis—that Simpson’s punishment was cruel and unu-

sual—was unsupported. (RR4: 5-7). The court ultimately granted Simp-

son a new punishment trial, remarking that it felt a “long probation” to

be the more proportionate sentence, and the State then timely filed notice

of appeal. (RR4: 26); (CR: 72-73).




                                     9
                     Summary of the Argument

     A district court generally does not abuse its discretion in granting

a motion for new trial if the defendant, among other things, produced

evidence or pointed to evidence in the trial record that substantiated his

legal claim. State v. Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App.

2007). Here, Simpson provided evidence in support of his claim. The court

of appeals found that Simpson had not substantiated his claim, however,

because, evaluating the evidence itself, the court of appeals found Simp-

son had not proven his legal claim.

     The court of appeals’s conclusion was wrong because it employed

the wrong analysis. The requirement that a defendant “substantiate” his

legal claim does not demand that a defendant prove it—just support it.

Because, here, Simpson did just that, and further, showed prejudice to

his substantial rights, the court of appeals’s holding must be reversed.




                                      10
                                Argument

           Simpson produced evidence or pointed to evidence
           in the trial record that substantiated his legal
           claim in his motion for new trial

                                       

 I.   The court of appeals’s holding was based on its substitute
      analysis of whether Simpson proved his claim

      On appeal to the Fifth Court of Appeals, the State argued the dis-

trict court abused its discretion in granting Simpson’s motion for new

trial on the basis that his punishment was cruel and unusual. (St. Br. at

15-16). In response, Simpson pointed the court to this Court’s opinion in

State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007), in which this

Court held that a district court generally does not abuse its discretion in

granting a motion for new trial if the defendant simply: (1) articulates a

valid legal claim in his motion for new trial; (2) produces evidence or

points to evidence in the trial record that substantiated his legal claim;

and (3) shows prejudice to his substantial rights under the harmless error

standards of the Texas Rules of Appellate Procedure. (Ap. Br. at 13-14)

(citing Herndon, 215 S.W.3d at 909). And in Simpson’s case, as the State

did not refute, he articulated a valid legal claim: his sentence was cruelly

                                    11
and unusually disproportionate. (Ap. Br. at 17). Further, Simpson pro-

duced and pointed to evidence in support of his claim, and in light of the

district court’s statement upon hearing that evidence that it felt proba-

tion was the appropriate sentence, Simpson’s 25-year sentence undenia-

bly affected his substantial rights. (Ap. Br. at 17-18).

     The court of appeals agreed Simpson articulated a valid legal claim

in arguing that his sentence was cruelly and unusually disproportionate.

State v. Simpson, No. 05-14-00618-CR, 2015 WL 1811862, *2 (Tex.

App.—Dallas 2015) (citing State v. Stewart, 282 S.W.3d 729, 735-36 (Tex.

App.—Austin 2009, no pet.) (“Stewart’s amended motion for new trial as

to punishment alleged that the sentence imposed in this cause was dis-

proportionate in comparison to other similarly situated defendants. The

State does not deny that this was a valid legal claim on which to base a

motion for new trial in the interest of justice”)). As such, the trial court

had “wide discretion in ruling on [the] motion.” Herndon, 215 S.W.3d at

908. Indeed, generally, if there is a “valid legal claim” in a motion for new

trial, a court will not abuse its discretion by granting it. State v. Thomas,

428 S.W.3d 99, 105 (Tex. Crim. App. 2014). But the court of appeals none-

theless refused to respect the trial court’s discretion because, as to


                                     12
whether Simpson substantiated his claim, the court concluded the facts

did not present an appropriate case for the trial court's action:

      Measuring this evidence against Simpson's twenty-five year
      sentence, we cannot conclude this is one of the “rare” cases
      where gross disproportionality is inferred. See Graham, 560
      U.S. at 60. While Simpson might not have injured the victim,
      he pawned the PlayStation knowing it was stolen and drove
      the getaway car. Additionally, while the seventeen prior fel-
      ony convictions are “dated,” sixteen of those convictions are
      for aggravated robbery—a crime of violence as a matter of
      law—and all were committed within a span “of about a
      month.” See Jernigan v. State, 672 S.W.2d 280, 281 (Tex.
      App.–Dallas 1984, no pet.) (“Violence is an inherent element
      of aggravated robbery.”); see also TEX. PEN. CODE ANN. § 29.03
      (West 2011). The theft and forgery offenses, though non-vio-
      lent crimes, were committed within the same year and shortly
      before Simpson was arrested in this case. In light of Simpson's
      role in the robbery and his significant prior adjudicated and
      unadjudicated offenses, his twenty-five year sentence is not
      grossly disproportionate to the crime.

Simpson, 2015 WL 1811862 at *3. In light of this, the court determined

Simpson had not substantiated his claim. Id. (citing TEX. PEN. CODE §§

12.32(a), 12.42(b)). Accordingly, the court held the trial court abused its

discretion in granting Simpson's motion for new trial without addressing

whether Simpson showed prejudice to his substantial rights. Id.

II.   The court undertook the wrong analysis because it read
      “substantiate” to mean “prove,” rather than “support”




                                    13
     This was plainly the incorrect analysis for whether Simpson sub-

stantiated his claim. The “test for abuse of discretion ‘is not whether, in

the opinion of the reviewing court, the facts present an appropriate case

for the trial court's action.’” Herndon, 215 S.W.3d at 907-08 (quoting

Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005) (quoting

Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994))). But the court

of appeals ran afoul of this basic, boilerplate, bedrock principle of law for

a simple reason: it read Herndon’s “substantiate” requirement to mean

“prove,” rather than “support.”

     That is not what this Court meant in Herndon. This is evinced by,

if nothing else, exactly what occurred in this case—reading “substanti-

ate” to mean “prove” demands reviewing courts substitute their judg-

ments for the district courts’. But, moreover, Herndon’s plain language—

which the court of appeals ostensibly considered, but obviously ignored—

states “[t]he defendant need not establish reversible error as a matter of

law before the trial court may exercise its discretion in granting a motion

for new trial.” Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App. 2007). And

more recently, in State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App.

2013), this Court evaluated whether Zalman substantiated his valid legal


                                     14
claim by considered whether he provided evidence that “support[ed]” his

claims. Id. at 595. Similarly, in State v. Varkonyi, the El Paso Court of

Appeals considered whether the defendant’s evidence was “capable of

supporting a new trial.” No. 08-06-00262-CR, 2008 WL 821580, *4 (Tex.

App.—El Paso 2008, pet. dism’d) (emphasis added). This is also in line

with the primary dictionary definition of “substantiate”: “to give sub-

stance or form to.” Merriam–Webster Online Dictionary, http://www.mer-

riam-webster.com/dictionary/substantiate (last visited November 5,

2015).

III.   At the very least, Simpson produced some evidence to sup-
       port his claim

       As to the correct inquiry, Simpson most definitely presented evi-

dence supporting his legal claim that his 30-year-old crimes, committed

as a teenager, and for which he already served a lengthy sentence, were

far too remote to support such a harsh sentence here. At the hearing on

Simpson’s motion for new trial, he introduced evidence of his drug addic-

tion in support of his argument that it warranted treatment, not incar-

ceration. Simpson further produced and pointed to evidence of his mini-

mal role in the instant offense, the datedness and circumstances of his

previous crimes, and his co-defendant’s and others’ sentences. (RR4: 4, 7-

                                   15
22). This was sufficient substantiation. Cf. State v. Spigel, No. 05-13-

00314-CR, 2014 WL 1022530, at *1 (Tex. App.—Dallas 2014, no pet.)

(“Appellee relied solely on the written motion [for new trial]; therefore he

did not substantiate his claim that the evidence was insufficient to sup-

port a guilty verdict.”).

      Accordingly, if nothing else, Simpson respectfully requests this

Court to reverse the decision of the court of appeals and remand this case

to that court to consider the final Herndon requirement: whether Simp-

son showed prejudice to his substantial rights under the harmless error

standards of the Texas Rules of Appellate Procedure. See Herndon, 215

S.W.3d at 909. But because, in light of the district court’s statement that,

upon hearing that evidence, it felt probation was the appropriate sen-

tence, Simpson’s 25-year sentence of course affected his substantial

rights, in the interests of judicial economy he respectfully requests this

Court to simply reverse the judgment of the court of appeals and remand

this case to the trial court for a new punishment trial. See, e.g., Sims v.

State, 84 S.W.3d 768, 781 (Tex. App.—Dallas 2002, pet. ref’d) (error sub-

jecting defendant to harsher punishment range affected substantial

rights).


                                    16
                                Prayer

     Simpson respectfully requests this Court to reverse the judgment

of the court of appeals and remand this case to the trial court for a new

punishment trial.

                                 Respectfully submitted,



                                      /s/ Bruce Anton
                                 BRUCE ANTON
                                 Bar Card No. 01274700
                                 ba@sualaw.com


                                      /s/ Brett Ordiway
                                 BRETT ORDIWAY
                                 Bar Card No. 24079086
                                 bordiway@sualaw.com

                                 SORRELS, UDASHEN & ANTON
                                 2311 Cedar Springs Road Suite 250
                                 Dallas, Texas 75201
                                 (214)-468-8100 (office)
                                 (214)-468-8104 (fax)

                                 Attorneys for Petitioner-Appellee




                                   17
                         Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of the
foregoing Petitioner’s Brief on the Merits was electronically served to the
Dallas County District Attorney’s Office and the State Prosecuting Attor-
ney on November 9, 2015.


                                       /s/ Bruce Anton
                                   BRUCE ANTON




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B) because
     this petition contains 1,830 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style
     requirements of TEX. R. APP. P. 9.4(e) because this brief has been
     prepared in a proportionally spaced typeface using Microsoft Word
     2011 in 14-point Century Schoolbook.


                                       /s/ Bruce Anton
                                   BRUCE ANTON




                                    18
