                                                                ACCEPTED
                                                            12-15-00171-CR
                                               TWELFTH COURT OF APPEALS
                                                             TYLER, TEXAS
                                                      9/28/2015 11:22:57 AM
                                                                  Pam Estes
                                                                     CLERK




                                           RECEIVED IN
                                     12th COURT OF APPEALS
     CASE NO. 12-15-00171CR               TYLER, TEXAS
                                     9/28/2015 11:22:57 AM
IN THE TWELFTH COURT OF APPEALS             PAM ESTES
          TYLER, TEXAS                        Clerk


JIMMY ANDREW DAVIS, JR., Appellant
                                             9/28/2015
                 Vs.

  THE STATE OF TEXAS, Appellee

        On Appeal from the

     3RD Judicial District Court,
      Anderson County, Texas

      (Trial Court No. 31760)

    Honorable MARK CALHOON

       BRIEF OF APPELLANT

        MARK W. CARGILL
         TBC# 00787201
            701 N. Elm
      Palestine, Texas 75801
          903/729-8011

    COUNSEL FOR APPELLANT

    ORAL ARGUMENT WAIVED




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                                   PARTIES

JIMMY ANDREW DAVIS, JR. APPELLANT

Mark W. Cargill
Attorney for Defendant/Appellant
701 N. Elm
Palestine, Texas 75801

Allyson Mitchell
District Attorney
500 N. Church Street
Palestine, Texas 75801




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                            TABLE OF CONTENTS
                                                              Page
Table of Contents…………………………………………………………………………………………..         3

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

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

Point of Error Number One……………………………………………………………………           6

Statement of Facts………………………………………………………………………………………..         6

Point of Error Number One Restated…………………………………………………………...   6

Summary of Argument ……………………………………………………………………………...          6

Argument ……………………………………………….……………………………………………………..            7

Prayer……………………………………………………………………………………………………………               9

Certificate of Service…………………………………………………………………………………...      10




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                                    INDEX OF AUTHORITIES

CONSTITUTIONS

        U.S. CONST. amend VIII……………………………………………………………………………..                         6
        TEX. CONST. art. I sec. 13 ……………………………………………………………………….                       6

STATUTES

        Tex. Pen. Code Ann. Sec. 12.34……………………………………………………………….                       8

CASES

Federal

        Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,
        115 L. Ed. 2d 836 (1991)                                                      7

        McGruder v. Puckett, 954 F. 2d 313 (5th Cir.), cert. denied, 506 U.S. 849,
        113 S. Ct. 146, 121 L. Ed. 2d 98 (1992)                                       7

        Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)         7

State

        Bell v. State, 233 S.W. 3d 583 (Tex. App. Waco 2007, pet dismissed)           8, 9

        Davis v. State, 905 S.W. 2d 664 (Tex. App – Texarkana 1995, pet. ref’d)       7

        Dunn vs. State, 997 S.W. 2d 885 (Tex. App. – Waco 1999, pet. ref’d)           7

        Hernandez v. State, 10 S. W. 3d 812 (Tex. App. – Beaumont 2000, pet. ref’d)   7

        Hicks v. State, 15 S.W. 3d 626 (Tex. App. – Houston [14th dist. ] 2000,
        pet ref’d)                                                                    7

        Hoitt v. State, 28 S.W. 3d 162 (Tex. App. Texarkana 2000, no pet)             8,9

        Jackson v. State, 989 S.W. 2d 842 (Tex. App. – Texarkana 1999, no pet.)       8

        Lackey v. State, 881 S.W. 2d 418 (Tex. App. – Dallas 1994, pet ref’d)         7

        Lilly v. State, 365 S.W.3d 321 (Ct of Crim Appeals, April 18, 2012)           8,9

        Matthews v. State, 918 S.W. 2d 666 (Tex. App. – Beaumont 1996, pet ref’d)     7

        McCoy v. State, 932 SW 2d 720, (Tex. App. 1996, pet refused)                  8,9

        Puga v. State, 916 S.W. 2d 547 (Tex. App. – San Antonio 1996, no pet.)        7

        Simmons v. State, 994 S.W. 2d 11 (Tex. App. – Tyler 1996, pet. ref’d)         7

        Sulivan v. State, 975 S.W.2d 755 (Tex. App. – Corpus Christi 1998, no pet.)   7



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                            CASE NO. 12-15-00171CR

                      IN THE TWELFTH COURT OF APPEALS
                                TYLER, TEXAS

                       JIMMY ANDREW DAVIS, JR. Appellant

                                        Vs.

                         THE STATE OF TEXAS, Appellee

                               On Appeal from the

                            3RD Judicial District Court,
                             Anderson County, Texas

                             (Trial Court No. 31760)

                           Honorable MARK CALHOON

                              BRIEF OF APPELLANT

                                MARK W. CARGILL
                                 TBC# 00787201
                                    701 N. Elm
                              Palestine, Texas 75801
                                  903/729-8011

                           COUNSEL FOR APPELLANT

                           ORAL ARGUMENT WAIVED


TO THE HONORABLE JUDGE OF SAID COURT:

      COMES NOW, JIMMY ANDREW DAVIS, JR. the Appellant, and files this his

Brief of Appeal in the above-entitled and numbered cause.




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                            STATEMENT OF THE CASE

       On March 24, 2015, Defendant, JIMMY ANDREW DAVIS, JR., was found guilty

of MANUFACTURING AND DELIVERY OF A CONTROLLED SUBSTANCE PG1 <1G,

DRUG FREE ZONE in a jury trial, on 6/5/2015 the Court sentenced him to 30 years

in the Texas Department of Criminal Justice Institutional Division. Defendant timely

appealed.

                                  ISSUE PRESENTED

                         POINT OF ERROR NUMBER ONE

       The trial court errored in rendering judgment and sentencing Appellant to 30

years incarceration because that sentence was grossly disproportionate when

considered in light of other sentences for the same offense and in light of the facts

and circumstances which constituted the offense.

                              STATEMENT OF FACTS

       The Court considered all testimony of the punishment trial and other

testimony from Defendant and other witnesses to render their sentence.

(Sentencing RR Vol. 1, page 12)


                   POINT OF ERROR NUMBER ONE RESTATED

       The sentence is excessive and is grossly disproportionate to the crime

committed.

                            SUMMARY OF ARGUMENT

       Each Defendant is guaranteed under the constitution of punishment free if

cruel and unusual treatment.      To sentence a Defendant to a sentence that is




                                                                                   6
disproportionately high violates the prohibition against cruel and unusual

punishment.

                                       ARGUMENT

       Both the United States Constitution and the Texas Constitution prohibit cruel

and unusual punishment. US Const. amend. VIII; Tex. Const. art I sec. 13. Since there

are not any distinctions between the state and federal protections against cruel or

unusual punishment, an appeals court should address such claims together. See

Simmons v. State, 944 S.W. 2d 11, 14 (Tex. App. – Tyler 1996, pet. Ref’d) Davis v.

State, 905 S.W.2d 664, 665 (Tex. App. – Texarkana 1995, pet. ref’d).

       It is possible for a sentence to fall within a permitted punishment range and

yet “run afoul of the Eighth Amendment prohibition on cruel and unusual

punishment. “Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d

637 (1983). The Supreme Court revised the question of disproportionate sentences

in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). In

discussing Harmelin, the Fifth Circuit has stated that “disproportionality survies:

Sloem does not.” 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). Under McGruder, a court must first

determine whether the sentence is “grossly disproportionate to the offense.”

McGruder, 954 F. 2d at 316. Once the court of Appeals finds the sentence grossly

disproportionate, the court then considers the remaining factors of the Solem test

and compares the sentence received to (1) sentences for similar crimes in the same

jurisdiction and (2) sentences for the same crime in other jurisdictions. Several

immediate Texas courts have analyzed proportionality claims in the manner



                                                                                   7
recommended by the Fifth Circuit in McGruder. See Hicks v. State, 15 S.W. 3d 626

(Tex. App. – Houston {14th Dist. } 2000, pet. ref’d); Hernandez v. State, 10 S.W. 3d

812 (Tex. App. – Beaumont 2000, pet. ref’d); Dunn v. State, 997 S.W. 2d 885 (Tex.

App. – Waco 1999, pet. ref’d) Sullivan v. State, 975 S.W. 2d 755, 757 (Tex. App. –

Corpus Christi 1998, no pet.); Puga v. State, 916 S.W. 2d 547, 549-50 (Tex. App. -

San Antonio 1996, no pet.); Matthews v. State, 918 S.W.2d 666, 668-69 (Tex. App. –

Beaumont 1996, pet. ref’d) an Lackey v. State, 881 S.W. 2d 418, 420-421 (Tex. App.

–   Dallas   1994,   pet   ref’d).   The   Eighth    Amendment     proscribes    grossly

disproportionate sentences, even sentences that fall within the statutory range of

punishment. Jackson v. State, 989 S. W. 2d 842, 845-46 (Tex. App. – Texarkana

1999, no pet).

       Appellant     was   charged     with   a     3rd   degree   felony   offense    of

Manufacturing/Delivering of Controlled Substance PG1<1G, drug free zone.

       Appellant was found guilty to the charged offense but his punishment was

grossly disproportionate to the crime. An individual adjudged guilty of a felony of

this degree shall be punished by imprisonment in the institutional division for any

term of not more than 10 years or less than 2 years and in addition to the

imprisonment, may be assessed a fine not to exceed $10,000.00.              Additionally,

Defendant had enhancements of previous convictions which made the range of

punishment not more than 99 years to life or less than 25.

       The sentence of 30 years’ incarceration is grossly disproportionate.

       In terms of other manufacturing/delivery of controlled substance PG1<1G

drug free zone cases, the facts which made up the gist of the manufacturing/delivery



                                                                                       8
of controlled substance PG1<1G drug free zone, now before this Court, this Court

must conclude that the punishment assessed, the sentence of 30 years’ confinement

is grossly disproportionate to the offense committed.

         Accordingly, this Court must proceed to the next two steps in the McGruder

analysis: (1) sentences for similar crimes in the same jurisdiction and (2) sentences

for the same crime in other jurisdictions. Appellant is guilty of the offense charged,

but his punishment is excessive.            Punishment for the worst possible

manufacturing/delivery of a controlled substance PG1<1G, drug free zone cannot

exceed a 10 years sentence life with enhancements. Appellant was sentenced to 30

years.    It is clear that other much more serious manufacturing/delivery of a

controlled substance PG1<1G drug free zone convictions resulted in significantly

less harsh sentences than Appellant received.       Simply stated, the punishment

assessed against Appellant, while legally within the range of punishment available

to the Court, exceed what was right and fair. Thirty years’ confinement in prison is

not proportionate for the offense of manufacturing/delivery of a controlled

substance PG 1<1G drug free zone in this situation and under these facts and

circumstances. Accordingly, the sentence must not stand. Appellant is entitled to a

new punishment hearing.

                                      PRAYER

         WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable

Court sustain the point of error raised hereinabove, and vacate the commitment to

the Texas Department of Corrections Institutional Division remand the case for a

new sentencing hearing.



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                                    Respectfully submitted,

                                    CARGILL & ASSOCIATES
                                   Mark W Cargill
                             BY:    /s/ Mark W. Cargill
                                    Mark W. Cargill
                                    SBN: 00787201
                                    701 N. Elm
                                    Palestine, Texas 75801
                                    Telephone: 903/729-8011
                                    Facsimile: 903/729-5112
                                    cargillaw@earthlink.net

                                    Attorney for Appellant

                             CERTIFICATE OF SERVICE

This is the certify that on September 27, 2015, a true and correct copy of the above
and foregoing document was served on the District Attorney’s Office, Anderson
County, and all other interested parties, by hand delivery, mail, and/or facsimile and
regular mail.

                                   Mark W Cargill
                                    /s/Mark W. Cargill
                                    Mark W. Cargill

                                    Word Count

On this 27th day of September 2015, I, Mark W. Cargill, hereby certifies that this
brief has a word count of 1598.


                                    Mark       W Cargill
                                    _______________________________________________
                                    Mark W. Cargill




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