                                                                                    ACCEPTED
                                                                                06-15-00009-CR
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                            5/7/2015 4:42:05 PM
                                                                               DEBBIE AUTREY
                                                                                         CLERK




                                                               FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
                                                        5/8/2015 8:29:00 AM
                            No. 06-15-00009-CR              DEBBIE AUTREY
                                                                Clerk
__________________________________________________________________________

               IN THE SIXTH DISTRICT COURT OF APPEALS
                         AT TEXARKANA, TEXAS
__________________________________________________________________________

                           CHRISTIAN SIBLEY
                                                      Appellant,

                                     v.

                          THE STATE OF TEXAS


                 Appealed from the County Court At Law One
                            Gregg County, Texas
__________________________________________________________________________

                        BRIEF OF THE APPELLANT
__________________________________________________________________________

                               Clement Dunn
                           State Bar No. 06249300
                          140 East Tyler, Suite 240
                           Longview, Texas 75601
                          Telephone: 903-753-7071
                             Fax: 903-753-8783




                       ORAL ARGUMENT WAIVED
                       IDENTITY OF PARTIES AND COUNSEL

        Appellant certifies that the following is a complete list of all parties to the trial
court=s judgment and the names and addresses of their trial and appellate counsel.

1.     Appellant:     Christian Sibley

2.     Appellant=s Trial Counsel:    Clement Dunn
                                     Attorney at Law
                                     140 E. Tyler Street, Suite 240
                                     Longview, TX 75601
                                     TSB No. 06249300

3.     Appellant=s Counsel on Appeal:        Clement Dunn
                                             Attorney at Law
                                             140 E. Tyler Street, Suite 240
                                             Longview, TX 75601
                                             TSB No. 06249300

4.     Attorney for the State:       Reid McCain
                                     Assistant District Attorney, Gregg County
                                     101 East Methvin St., Suite 333
                                     Longview, Texas 75601
                                     TSB No. 24076541




                                              i
                                                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................................................................... i

TABLE OF CONTENTS ................................................................................................................ ii

INDEX OF AUTHORITIES ........................................................................................................... iii

STATEMENT OF THE CASE......................................................................................................1

STATEMENT REGARDING ORAL ARGUMENT....................................................................1

ISSUE PRESENTED .......................................................................................................................1

STATEMENT OF THE FACTS .........................................................................................................1

SUMMARY OF THE ARGUMENT ...................................................................................................2

ARGUMENT ...............................................................................................................................2

PRAYER ....................................................................................................................................................................... 5

CERTIFICATE OF SERVICE ...................................................................................................................................... 6

CERTIFICATE OF WORD COUNT ........................................................................................................................... 6




                                                                                      ii
                                              INDEX OF AUTHORITIES

                                                                Cases



Nance v. State, 946 S.W. 2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d) ..................4

Olson v. State, No. 02-14-00143-CR (Tex. App.—Fort Worth, dec’d April 23, 2015)
(unpublished) ............................................................................................................................4

Williams v. State, 958 S.W. 2d 844,845 (Tex. App.—Houston (14th Dist.) 1997, pet. ref’d). .4

Mitchell v. State, 931 S.W. 2d 950 (Tex. Crim. App. 1996) ...................................................4

Johnson v. State, Nos. 14-14-00209-CR, 14-14-00210-CR (Tex. App. –Houston (14th Dist.)
dec’d March 10, 2015)(unpublished) ......................................................................................4

Segundo v. State, 270 S.W. 3d 79, 87 (Tex. Crim. App. 2008) ...............................................5

Aldor v. State, 871 S.W. 2d 726, 738 (Tex. Crim. App. 1994) ................................................5

Wilkerson v. State, 736 S.W. 2d 656, 659 (Tex. Crim. App. 1987) .........................................5




                                                 Constitutional Provisions

Article 37.07, Tex. Crim. Proc. sec. 3(a)(1) .............................................................................3

Article 37.07, Tex. Crim. Proc., section 3(g) ...........................................................................4




                                                                    iii
                               STATEMENT OF THE CASE

Offense:       Escape From Custody

Verdict:       Guilty; three hundred thirty (330) days confinement – County Jail.

Date of Verdict:       October 20, 2014

Trial Court:   County Court At Law One, Gregg County, Texas.

       This case involves a prosecution for the offense of Class A misdemeanor Escape.

C.R., at 4. The Appellant entered a plea of guilty to the Court. R.R. at 5. This occurred

without an agreement between the State and the Appellant regarding punishment; this

entailed an “open” plea. Id. At the end of the hearing, the Court imposed a sentence of three-

hundred-thirty days in the county jail, a four-hundred dollar fine and costs of court. Id., at

14.

                   STATEMENT REGARDING ORAL ARGUMENT

       Believing the instant case contains issues capable of resolution on the basis of the

record and the brief Appellant respectfully does not request oral argument.



                                    ISSUE PRESENTED

       The Appellant respectfully submits that the Trial Court based its sentence on matters

not properly in evidence before the Court and therefore not appropriate as factors in the

assessment of sentences.



                              STATEMENT OF THE FACTS

       At the conclusion of the hearing in the instant case, the Trial Court stated:

                       THE COURT: The Court can consider the fact

BRIEF OF APPELLANT, CHRISTIAN

                                                                                          PAGE 1
               that he's had a prior probation that was revoked, and he
               received a 330-day sentence, I do believe. He has other
               misdemeanor convictions.
                        I'm just going to consider the offense report, the
               pre-sentence report -- which has a history of misdemeanor
               convictions -- and the Court's own knowledge of Mr. Sibley through the
               years.
                        Mr. Sibley, you just like being a criminal. You
               just do. And you want to be a criminal, so I'm going to treat
               you like a criminal. You don't want to be rehabbed. You want
               to be a gang member. You want to be tough.
                        So I've got a little misdemeanor case -- the maximum
               is a year -- so there's not a lot I can do to you. But I am
               going to sentence you to 330 days in the county jail and a
               $400 fine, plus cost of court. This has not been a plea
               agreement, so you have the right to appeal it if you want.
               It's the same sentence you got for your last revocation. I
               don't know if you're going to ever change your ways or not,
               but I've got your number.

       R.R., at 13-14.

                           SUMMARY OF THE ARGUMENT

       The Trial Court erred in basing its sentence on matters not in evidence and on

assertions that do not properly inform the sentencing decision.



                                       ARGUMENT

       As noted above, the Trial Court stated:

               I’m just going to consider the offense report, the pre-sentence reports—
               which has a history of misdemeanor convictions—and the Court’s own
               knowledge of Mr. Sibley through the years.

R.R., at 13-14. When the Court says it is “going to consider,” inter alia, “the Court’s own

knowledge of Mr. Sibley through the years,” the record contains no explanation of what this

might encompass. The context of this statement strongly indicates that this amounts to

something beyond matters in evidence before the Court—i.e., the afore-mentioned offense


BRIEF OF APPELLANT, CHRISTIAN

                                                                                        PAGE 2
report, pre-sentence report, and criminal history. The Court states this “knowledge” of Mr.

Sibley “through the years” as a separate, and distinct, basis for the sentence.

        The Court did not articulate what this “knowledge” comprises; “the Court’s own

knowledge of Mr. Sibley through the years” places this consideration within, as stated, “the

Court’s own knowledge,” not facts in evidence before the Court at the hearings. The record

does not reflect that the Court took “judicial notice” of any particular matter at all. To the

extent that an inference might arise that the Court judicially noticed its own knowledge, the

record fails to reflect the contents of this knowledge being “judicially noticed.”

        The Court went further:

                        Mr. Sibley, you just like being a criminal. You
                just do. And you want to be a criminal, so I'm going to treat
                you like a criminal. You don't want to be rehabbed. You want
                to be a gang member. You want to be tough.

R.R. 14. The Appellant respectfully submits that no record evidence demonstrates that the

Appellant “likes” being a criminal, or “wanting” to be one. Similarly, nothing shows the

Appellant resistant to efforts at rehabilitation.

        Article 37.07, Tex. Crim. Proc., controls the admissibility of evidence at the

punishment phase of a trial:

                        Sec. 3. Evidence of prior criminal record in all criminal cases after a
        finding of guilty.
                (a)(1) Regardless of the plea and whether the punishment be assessed by the
        judge or the jury, evidence may be offered by the state and the defendant as to any
        matter the court deems relevant to sentencing, including but not limited to the prior
        criminal record of the defendant, his general reputation, his character, an opinion
        regarding his character, the circumstances of the offense for which he is being tried,
        and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
        evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt
        by evidence to have been committed by the defendant or for which he could be held
        criminally responsible, regardless of whether he has previously been charged with or
        finally convicted of the crime or act.


BRIEF OF APPELLANT, CHRISTIAN

                                                                                        PAGE 3
Id., sec. 3(a)(1). Further, Article 37.07, section 3(g) incorporates the notice requirement of

Rule 404(b), Tex. R. Evid., and provides that the State must give a defendant reasonable

notice of its intent to introduce extraneous-offense evidence at punishment. The statute

further provides that notice is reasonable “only if the notice includes the date on which and

the county in which the alleged crime or bad act occurred and the name of the alleged victim

of the crime or bad act.” Article 37.07, Tex. Crim. Proc., section 3(g). The purpose of the

notice requirement is to prevent unfair surprise to the defendant. See: Nance v. State, 946

S.W. 2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d); Olson v. State, No. 02-14-

00143-CR (Tex. App.—Fort Worth, dec’d April 23, 2015) (unpublished). When the trial

court (instead of a jury) assesses punishment, it may determine that an extraneous offense is

relevant to punishment and admit such evidence, but the court may then only consider the

extraneous offense in assessing punishment if it finds the offense was proven beyond a

reasonable doubt. Williams v. State, 958 S.W. 2d 844,845 (Tex. App.—Houston (14th Dist.)

1997, pet. ref’d); Mitchell v. State, 931 S.W. 2d 950 (Tex. Crim. App. 1996); Johnson v.

State, Nos. 14-14-00209-CR, 14-14-00210-CR (Tex. App. –Houston (14th Dist.) dec’d

March 10, 2015)(unpublished).

       In the instant case, the Court relied on its own knowledge, which amounts to facts

not in evidence—and certainly not proven in the courtroom and on the record, and thus

subject to potential appellate review. This “evidence,” existing outside of the record, could

not be subject to the standard, statutorily required, of being proven beyond a reasonable

doubt. The Appellant had no notice of what this “knowledge” of the Court entailed; even as

the Court stated this as a basis for its sentencing decision, the “knowledge” remained

obscure.


BRIEF OF APPELLANT, CHRISTIAN

                                                                                       PAGE 4
       This “knowledge,” however, translated into the Court’s stating that the Appellant

“liked” being a criminal and a member of a gang, and was averse to any effort to change

from these predilections. This becomes tantamount to punishing the Appellant not for the

offense for which he was convicted, or even for specific extraneous acts, but for being a

criminal generally. This has long been deemed improper by the appellate judiciary in Texas.

See, e.g., Segundo v. State, 270 S.W. 3d 79, 87 (Tex. Crim. App. 2008); Aldor v. State, 871

S.W. 2d 726, 738 (Tex. Crim. App. 1994); and Wilkerson v. State, 736 S.W. 2d 656, 659

(Tex. Crim. App. 1987).




                                        PRAYER

       The Appellant respectfully requests this case be reversed and remanded for a new

hearing on punishment.



                                                   Respectfully submitted,



                                                   __/s/ Clement Dunn_______________

                                                   140 East Tyler Street, Suite 240

                                                   Longview, Texas 75601

                                                   (903) 753-7071 Fax: 903-753-8783

                                                   State Bar No. 06249300




BRIEF OF APPELLANT, CHRISTIAN

                                                                                      PAGE 5
                              CERTIFICATE OF SERVICE



       I hereby certify that a true and correct copy of this brief was delivered to the Gregg

County District Attorney=s Office, Longview, Texas on this 7th day of May 2015.




                                              __/s/ Clement Dunn_______________




                           CERTIFICATE OF WORD COUNT



       I hereby certify that a total of 1746 words are included in this brief.




                                              __/s/ Clement Dunn_______________




BRIEF OF APPELLANT, CHRISTIAN

                                                                                        PAGE 6
