                                                                       PD-0599-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 12/10/2015 3:50:30 PM
                                                      Accepted 12/11/2015 9:36:51 AM
                                                                       ABEL ACOSTA
                         PD-0599-15                                            CLERK

       IN THE TEXAS COURT OF CRIMINAL APPEALS
   _________________________________________________

             THE STATE OF TEXAS
                RESPONDENT-APPELLANT
                                                          December 11, 2015

                            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 REPLY 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
                                  Reply

      In Simpson’s brief on discretionary review, he argued that, when

an appellate court evaluates whether a defendant “substantiated” a

claim in a motion for new trial, see State v. Herndon, 215 S.W.3d 901

(Tex. Crim. App. 2007), it must look only to whether he supported the

claim with evidence. Not itself evaluate the merits of the claim.

      The State in response doesn’t address that issue. Instead, the

State again argues the merits of the claim—just like it did before the

court of appeals, and as the court of appeals then followed. Indeed, that

is the entirety of the State’s response: boilerplate on the standard of re-

view and disproportionate sentencing, and then argument as to the

merits of Simpson’s claim. (St. Br. at 8-23). The State explicitly charac-

terizes its argument as:

      Specifically, the original sentence assessed by the trial court
      was not grossly disproportionate to the offense committed
      and the first punishment trial was not so seriously flawed as
      to affect Appellee’s substantial rights and justify granting
      the motion for new trial…. The evidence simply did not
      spport his claim of a grossly disproportionate sentence.

(St. Br. at 13). The State’s “Summary of Argument,” too, makes clear its

only focus. (St. Br. at 8).



                                    2
     Simpson appreciates the State’s lasting desire to return to the

facts. His is a criminal case, after all. But this Court—this appellate

court—granted Simpson’s petition on a question of law. And as to that

question, Simpson urges this Court that the State’s total failure to re-

spond is indicative of the question’s answer. The requirement that a de-

fendant “substantiate” his legal claim does not demand that a defend-

ant prove it—just support it with evidence. Again, this is evinced by, if

nothing else, exactly what occurred in this case—reading “substantiate”

to mean “prove” demands reviewing courts substitute their judgments

for the district courts’. Cf. Herndon, 215 S.W.3d at 907-08 (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.’”) (quot-

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

ing Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994))). And,

again, Herndon’s plain language—which the court of appeals ostensibly

considered, but obviously ignored—states “[t]he defendant need not es-

tablish reversible error as a matter of law before the trial court may ex-

ercise its discretion in granting a motion for new trial.” Herndon, 215

S.W.3d 901, 909 (Tex. Crim. App. 2007); see also State v. Zalman, 400


                                     3
S.W.3d 590 (Tex. Crim. App. 2013) (this Court evaluated whether Zal-

man substantiated his valid legal claim by considered whether he pro-

vided evidence that “support[ed]” his claims); State v. Varkonyi, No. 08-

06-00262-CR, 2008 WL 821580, *4 (Tex. App.—El Paso 2008, pet.

dism’d) (considering whether the defendant’s evidence was “capable of

supporting    a   new   trial.”);   Merriam–Webster   Online   Dictionary,

http://www.merriam-webster.com/dictionary/substantiate (last visited

November 5, 2015) (definition of “substantiate”: “to give substance or

form to”).

     As to the relevant inquiry, Simpson most certainly presented some

evidence supporting his legal claim that his 30-year-old crimes, commit-

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

were far too remote to support such a harsh sentence here. Accordingly,

Simpson again respectfully requests this Court to reverse the decision

of the court of appeals and accord proper deference to the trial court’s

discretion.

                                    Respectfully submitted,

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

                                      4
     /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




  5
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Petitioner’s Reply Brief on the Merits was electronically
served to the Dallas County District Attorney’s Office and the State
Prosecuting Attorney on on December 10, 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)(C) because
     this petition contains 565 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




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