                                                                                 ACCEPTED
                                                                            07-15-00036-CR
                                                               SEVENTH COURT OF APPEALS
                                                                         AMARILLO, TEXAS
                                                                      10/26/2015 1:41:18 PM
                                                                           Vivian Long, Clerk


                    CASE NO. 07-15-00036-CR
         _____________________________________________
                                                        FILED IN
                                                 7th COURT OF APPEALS
         IN THE   SEVENTH JUDICIAL COURT OF APPEALS  AMARILLO, TEXAS
                         AMARILLO, TEXAS         10/26/2015 1:41:18 PM
                   _____________________________       VIVIAN LONG
                                                          CLERK
                     DESIREE NICOLE ROMERO
                             Appellant

                                 v.

                       THE STATE OF TEXAS
                             Appellee

                   _____________________________

     FROM THE 100th DISTRICT COURT OF CARSON COUNTY;

         NO. 4898; HONORABLE STUART MESSER, JUDGE

          __________________________________________

                      APPELLEE’S BRIEF
          __________________________________________




                                  ____________________________
Oral Argument Requested           Luke McLean Inman
                                  100TH JUDICIAL DISTRICT ATTORNEY
                                  800 West Avenue, BOX 1
                                  Wellington, TX 79095
                                  State Bar No. 24050806
                                  (806) 447-0055 – Telephone
                                  (866) 233-2738 – Facsimile
                                  luke.inman@windstream.net

                                  ATTORNEY FOR APPELLEE
                   CERTIFICATE OF INTERESTED PERSONS

      I hereby certify that the following listed person(s) or entities have rights

which may be adversely affected by the outcome of these appeals in this Court so

that the Justices of this Court may review the same to determine the need for

refusal or disqualification, if necessary, herein:

      1. The Defendant/Appellant, DESIREE NICOLE ROMERO, who may be

served with process herein at the address of her Counsel of Record, Mr. Dale A.

Rabe, Jr., P.O. Box 1257, Childress, TX 79201.

      2. The Appellee, the STATE OF TEXAS, is represented herein by Luke M.

Inman, District Attorney for the 100th Judicial District, 800 West Avenue, Box 1,

Wellington, Texas 79095, Telephone (806) 447-0055, Facsimile (866) 233-2738,

and may be served with process at his address.




                                            i
                     TABLE OF CONTENTS
                       SUBJECT INDEX

SUBJECT:                                          PAGE:

Certificate of Interested Persons………………………………     i

Table of Contents………………………………………………               ii - iv

    Subject Index……………………………………………                ii

    Index of Authorities……………………………………            iii - iv

Statement of the Case…………………………………………             1-2

Counterpoint of Error…………………………………………             2

Statement of the Facts…………………………………………            3-4

Summary of the Arguments……………………………………            5

Arguments and Authorities……………………………………           5 - 12

COUNTERPOINT OF ERROR NUMBER ONE:……………            5 - 12

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
ASSESSING THE APPELLANT’S PUNISHMENT WITHIN THE
STATUTORY RANGE ALLOWED UNDER THE LAW.

Prayer……………………………………………………………                     13

Certificate of Service……………………………………………           13

Certificate of Compliance ……………………………………….        14




                             ii
                          INDEX OF AUTHORITIES

Cases                                                                 Page

U.S. Supreme Court Cases

Ewing v. California ……………………………………………….                               7
538 U.S. 11, 123 S. Ct. 1179, 1185, 155 L. Ed. 2d 108 (2003)

Graham v. Florida …………………………………………………                                 7
130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (Stevens, J., concurring)

Harmelin v. Michigan ……………………………………………..                              6
501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)

Rummel v. Estelle ………………………………………………….                                7
445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980)

Solemn v. Helm ……………………………………………………                                   6,7
463 U.S. 277 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)

Texas Cases

Cantu v. State ……………………………………………………..                                 6
842 S.W.2d 667 (Tex. Crim. App. 1992)

Cardona v. State ………………………………………………….                                 6
665 S.W.2d 492 (Tex. Crim. App. 1984)

Cole v. State ……………………………………………………….                                  6
578 S.W.2d 127 (Tex. Crim. App. [Panel Op.] 1979)

Delacruz v. State ………………………………………………….                                7
167 S.W.3d 904 (Tex. App.—Texarkana 2005, no pet.)

Jackson v. State …………………………………………………..                                6
680 S.W.2d 809 (Tex. Crim. App. 1984)

Jordan v. State ……………………………………………………                                  6
495 S.W.2d 949 (Tex. Crim. App. 1973)

                                        iii
Moore v. State ……………………………………………………     6
605 S.W.2d 924 (Tex. Crim. App. 1980)

Rickels v. State ……………………………………………………   5
202 S.W.3d 759 (Tex. Crim. App. 2006)




                       iv
                    CASE NO. 07-15-00036-CR
                  TRIAL COURT CASE NO. 4898
         _____________________________________________

         IN THE SEVENTH JUDICIAL COURT OF APPEALS
                       AMARILLO, TEXAS
                 _____________________________

                    DESIREE NICOLE ROMERO
                            Appellant

                               v.

                      THE STATE OF TEXAS
                            Appellee

                 _____________________________

     FROM THE 100th DISTRICT COURT OF CARSON COUNTY;

         NO. 4898; HONORABLE STUART MESSER, JUDGE
          __________________________________________

                      APPELLEE’S BRIEF
           __________________________________________

                               Respectfully submitted,



                               ____________________________
Oral Argument Requested        Luke McLean Inman
                               100th Judicial District Attorney
                               State Bar No. 24050806
                               800 West Avenue, Box 1
                               Wellington, TX 79095
                               (806) 447-0055 – Telephone
                               (866) 233-2738 - Facsimile
                               luke.inman@windstream.net
                               ATTORNEY FOR APPELLEE
                                 APPELLEE’S BRIEF

TO THE HONORABLE SEVENTH COURT OF APPEALS:

          THE STATE OF TEXAS, the Appellee in the above-styled and numbered

cause, by and through her counsel of record on appeal herein, submits to this Court

her Brief on Appellant’s appeal responding to points of error of fact and law in the

trial court below as follows:

          For convenience, the State of Texas, Appellee, will hereinafter be referred to

as the State, and the Appellant, Desiree Nicole Romero, will hereinafter be referred

to as the Appellant, throughout the remainder of this brief. References to the

Reporter’s Record are designated as “(R.R. Vol. #, page #, line (s) #)” and the

Clerk’s Record are designated as “(C.R. page #).”

                             STATEMENT OF THE CASE

          On November 9, 2011, in Cause Number 4898, in Carson County, Texas, the

Appellant pled guilty to the second degree felony offense of possession of

marijuana. R.R. Vol. 1, p. 7, LL 14-17. The trial court sentenced Appellant to

four years deferred adjudication probation. C.R. p. 22.

          On October 29, 2012, the State filed a Motion to Adjudicate Guilt. C.R. p.

37. The State alleged that the Appellant had violated her community supervision

by failing to notify her community supervision officer within 48 hours of a change

in home address; by failing to report; by failing to pay community supervision


Appellee’s Brief                                                                 Page 1 of 14
fees; by failing to pay fines, court costs and attorney fees; and by failing to

complete the required 300 hours of community service. R.R. Vol. 1, p. 7, L 20 – p.

8, L 6.

          On December 19, 2014, the trial court conducted a hearing on the Motion to

Adjudicate. R.R. Vol. 1, p. 1, LL 9-10. The Appellant pled true to each of the

violations. R.R. Vol. 1, p. 9, LL 5-7. The trial court found that the Appellant had

violated the terms of her community supervision by failing to notify her

community supervision officer within 48 hours of a change in home address; by

failing to report; by failing to pay community supervision fees; by failing to pay

fines, court costs and attorney fees; and by failing to complete the required 300

hours of community service. R.R. Vol. 1, p. 10, LL 15-17. The trial court then

convicted the Appellant of the second degree felony offense of possession of

marijuana. R.R. Vol. 1, p. 10, LL 15-17.

          After the punishment phase of the hearing, the trial court assessed the

Appellant’s punishment at fourteen years confinement in the Texas Department of

Criminal Justice Institutional Division. R.R. Vol. 1, p. 40, L 19.

                            COUNTERPOINT OF ERROR

COUNTERPOINT OF ERROR NUMBER ONE:

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ASSESSING
THE APPELLANT’S PUNISHMENT WITHIN THE STATUTORY RANGE
ALLOWED UNDER THE LAW.


Appellee’s Brief                                                                    Page 2 of 14
                           STATEMENT OF THE FACTS

          On October 29, 2012, the State filed a Motion to Adjudicate Guilt. C.R. p.

37. The State alleged that the Appellant had violated the terms of her community

supervision by failing to notify her community supervision officer within 48 hours

of a change in home address; by failing to report; by failing to pay community

supervision fees; by failing to pay fines, court costs and attorney fees; and by

failing to complete the required 300 hours of community service. R.R. Vol. 1, p. 7,

L 20 – p. 8, L 6.

          On December 19, 2014, the trial court conducted a hearing on the Motion to

Adjudicate. R.R. Vol. 1, p. 1, LL 9-10. The Appellant pled true to each of the

violations. R.R. Vol. 1, p. 9, LL 5-7. The trial court found that the Appellant had

violated the terms of her community supervision by failing to notify her

community supervision officer within 48 hours of a change in home address; by

failing to report; by failing to pay community supervision fees; by failing to pay

fines, court costs and attorney fees; and by failing to complete the required 300

hours of community service. R.R. Vol. 1, p. 10, LL 15-17. The trial court

convicted the Appellant of the second degree felony offense of possession of

marijuana. R.R. Vol. 1, p. 10, LL 15-17.

          During the punishment phase of the hearing, the Appellant was the only

witness. R.R. Vol. 1, p. 11, L 12. The Appellant testified that while she was on


Appellee’s Brief                                                               Page 3 of 14
probation, her sister kicked her out of her house. R.R. Vol. 1, p. 12, LL 4-8. The

Appellant testified that she was scared and did not have any money so she did not

contact the probation department. R.R. Vol. 1, p. 12, LL 4-18. The Appellant also

testified that she had a drug problem at the time. R.R. Vol. 1, p. 22, L 22. The

Appellant testified that she moved to New Mexico in August 2012 to live with her

uncle and never contacted the probation department. R.R. Vol. 1, p. 12, L 10; p.

31, L 4.

          The Appellant testified that she now lives in Albuquerque in her own

apartment with her three children. R.R. Vol. 1, p. 16, LL 16-18. The Appellant

testified that she works for home health and has one client. R.R. Vol. 1, p. 22, L 4.

The Appellant testified that she no longer has a drug problem. R.R. Vol. 1, p. 31,

L 25. The Appellant testified that from August 2012 until December 2014, she did

not try to contact the probation department because she was scared. R.R. Vol. 1, p.

35, L 3. The Appellant testified that she was arrested on the Motion to Adjudicate

after the police contacted her after she witnessed a fight between neighbors. R.R .

Vol. 1, p. 23, LL 3-5.

          At the conclusion of the punishment phase, the trial court stated that it

appeared that the Appellant had no intention of ever trying to complete her

probation. R.R. Vol. 1, p. 40, LL 7-8. The trial court then assessed the




Appellee’s Brief                                                                  Page 4 of 14
Appellant’s punishment at fourteen years confinement in the Texas Department of

Criminal Justice Institutional Division. R.R. Vol. 1, p. 40, L 19.

                         SUMMARY OF THE ARGUMENTS

          The trial court did not abuse its discretion in assessing the Appellant’s

punishment within the statutory range allowed under the law. The Appellant pled

true to the violations of the conditions of her deferred adjudication community

supervision. The Appellant’s plea of true is sufficient to support the trial court’s

revocation of her community supervision. Once the trial court adjudged the

Appellant guilty, it did not abuse its discretion in assessing the punishment of

fourteen years incarceration for the second degree felony offense of possession of

marijuana. In assessing punishment, the trial court explained that based on the

evidence in the hearing, it did not appear that the Appellant intended to ever try

and complete her probation. Thus, based on the actions of the Appellant

completely disregarding her conditions of community supervision, the trial court

did not abuse its discretion in assessing punishment within the statutory range.

          Therefore, this case should be affirmed for the State.

                       ARGUMENTS AND AUTHORITIES

COUNTERPOINT OF ERROR NUMBER ONE:

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ASSESSING
THE APPELLANT’S PUNISHMENT WITHIN THE STATUTORY RANGE
ALLOWED UNDER THE LAW.


Appellee’s Brief                                                                  Page 5 of 14
          A trial court's order revoking community supervision is reviewed under an

abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). A

plea of true, standing alone, is sufficient to support revocation of community

supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.]

1979). Proof of a single violation of the terms of community supervision is

sufficient to support revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.

App. 1980). The trial court abuses its discretion only if its decision "was so clearly

wrong as to lie outside that zone within which reasonable persons might disagree."

Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).

          An appellate court reviews a sentence imposed by the trial court under an

abuse of discretion standard. See Jackson v. State, 680 S.W.2d 809, 814 (Tex.

Crim. App. 1984). As a general rule, a penalty assessed within the proper

punishment range will not be disturbed on appeal. See id. at 814. 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, cruel, or

unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).

          A narrow exception to the general rule is recognized when the sentence is

grossly disproportionate to the offense. Harmelin v. Michigan, 501 U.S. 957,

1004-05, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy J., concurring);


Appellee’s Brief                                                               Page 6 of 14
Solemn v. Helm, 463 U.S. 277, 290-92, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983).

In such cases, the sentence violates the Eighth Amendment's prohibition against

cruel and unusual punishment. Solem, 463 U.S. at 290. Thus, a prohibition against

grossly disproportionate punishment survives under the Federal Constitution apart

from any consideration of whether the punishment assessed is within the statute's

range. Delacruz v. State, 167 S.W.3d 904, 906 (Tex. App.—Texarkana 2005, no

pet.). The Eighth Amendment does not require strict proportionality between

crime and sentence; rather, it forbids only extreme sentences that are grossly

disproportionate to the crime. See Ewing v. California, 538 U.S. 11, 23, 123 S. Ct.

1179, 1185, 155 L. Ed. 2d 108 (2003). However, "outside the context of capital

punishment, successful challenges to the proportionality of particular sentences

[will be] exceedingly rare." Solem, 463 U.S. at 289-90 (quoting Rummel v. Estelle,

445 U.S. 263, 272, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980)). When faced with a

categorical challenge to a term-of-years sentence, the judiciary, in determining

whether the punishment at issue is grossly disproportionate to the offense, must

consider: (1) whether there is a national consensus against imposing the

punishment for the offense; (2) the moral culpability of the offenders at issue in

light of their crimes and characteristics; (3) the severity of the punishment; and (4)

whether the punishment serves legitimate penological goals of retribution,




Appellee’s Brief                                                               Page 7 of 14
incapacitation, deterrence and rehabilitation. Graham v. Florida, 130 S. Ct. 2011,

2026, 176 L. Ed. 2d 825 (2010) (Stevens, J., concurring).

          In the current case, on November 9, 2011, the Appellant was placed on

deferred adjudication community supervision for the second degree felony offense

of possession of marijuana. R.R. Vol. 1, p. 7, LL 14-17. The punishment range

for this offense is between two and twenty years. R.R. Vol. 1, p. 8, L 24. On

December 19, 2014, the Appellant pled true to all of the alleged violations of the

terms of her deferred adjudication community supervision. R.R. Vol. 1, p. 9, L 5.

Specifically, the Appellant in the case at hand pled true to failing to notify the

community supervision officer within 48 hours of a change in address; failing to

report; failing to pay monthly community supervision fees; failing to pay fines,

court costs, and attorney fees; and failing to complete 300 hours of community

service. R.R. Vol. 1, p. 7, L 20 – p. 8, L 6.

          As stated in Cole, a plea of true of one violation of the terms of community

supervision is sufficient to support a revocation. In the current case, the Appellant

pled true to all of the alleged violations. R.R. Vol. 1, p. 9, L 5. Therefore, in the

current case, based on the plea of true, the trial court did not abuse its discretion in

finding that the Appellant violated the terms of her deferred adjudication

community supervision and convicting her of the second degree felony offense of

possession of marijuana.


Appellee’s Brief                                                                 Page 8 of 14
          After properly adjudging the Appellant guilty, the trial court in the case at

hand did not abuse its discretion by sentencing the Appellant to fourteen years

incarceration, as the statutory range of punishment for the second degree felony is

between two and twenty years. As stated in Jackson, as a general rule, a penalty

assessed within the proper punishment range will not be disturbed on appeal.

          The Appellant complains that the punishment is not fair as the Appellant

was convicted of possessing 80 pounds of marijuana, which is on the lower end of

the 50 to 2,000 pound range covered by a second degree felony but was sentenced

to fourteen years, which is on the higher end of the two to twenty years punishment

range for a second degree felony. See Appellant’s Brief, p. 18. However, as held

in Ewing, the Eighth Amendment does not require strict proportionality between

crime and sentence; rather, it forbids only extreme sentences that are grossly

disproportionate to the crime.

          The Appellant in the case at hand violated five conditions of her community

supervision, including the simple requirement to report. R.R. Vol. 1, p. 7, LL 20-

25 – p. 8, LL 1-6. The Appellant gave no reasonable explanation as to why she did

not contact the community supervision office for over two years after moving

secretly to New Mexico, other than to testify that she was scared. R.R. Vol. 1, p.

35, L 3. The Appellant did not state that she was under duress or prevented from




Appellee’s Brief                                                                  Page 9 of 14
contacting the community supervision office or give any evidence to justify her

being “scared.”

          In addition, the Appellant’s actions of avoiding the community supervision

office for over two years indicate that she never intended to fulfill the conditions of

her community supervision. In fact, the only reason that the Appellant was located

was that she had contact with the police in New Mexico. The Appellant argues

that she should have her community supervision reinstated, but her past actions do

not give confidence that she would fulfill the conditions. The Appellant’s past

actions show a complete disrespect for the rulings of the court and the terms of her

community supervision.

          Thus, due to the Appellant’s complete avoidance for over two years of

fulfilling the terms of her community supervision, the court did not abuse its

discretion in sentencing the Appellant within the statutory range for the crime for

which she was convicted. The trial court in assessing punishment explained that it

was basing its punishment on the fact that the Appellant seemed to have no intent

of ever trying the complete the terms of her community supervision. R.R. Vol. 1,

p. 40, L 7-8. Therefore, based on the seriousness of the crime and the Appellant’s

refusal to follow even the basic terms of her conditions of community supervision,

the record contains evidence which supports the trial court’s assessment of

fourteen years incarceration.


Appellee’s Brief                                                               Page 10 of 14
          Finally, to determine whether the fourteen year sentence in the current case

is grossly disproportionate to the offense, the court must consider the four factors

listed in Graham. For the first factor, the Appellant in the current case did not

present any evidence of a national consensus against imposing a fourteen year

sentence for the crime of possession of 80 pounds of marijuana. For the second

factor, the Appellant in the case at hand did not present any evidence that she

should be held less morally culpable for her crime. For the third factor, which is

the only factor for which the Appellant made an argument, the severity of the

punishment, the Appellant in the current case received a little higher than the mid-

point of the punishment range as she received fourteen years on the range of two to

twenty years. For the fourth factor, the Appellant’s punishment in the current case

will further the penological goals of incapacitation, deterrence and rehabilitation as

she will not be able to avoid completing the terms of her community supervision.

Thus balancing the factors in the case at hand, the Appellant has not carried her

burden of showing that, according to contemporary national standards of decency,

the punishment of fourteen years is grossly disproportionate to the offense of

possession of 80 pounds of marijuana. Therefore, the Appellant’s punishment in

the current case has not violated the Eighth Amendment and the judgment should

be affirmed.




Appellee’s Brief                                                               Page 11 of 14
          In sum, in the case at hand, the trial court did not abuse its discretion in

assessing the Appellant’s punishment within the statutory range allowed under the

law. The Appellant pled true to the violations of the conditions of her deferred

adjudication community supervision. The Appellant’s plea of true is sufficient to

support the trial court’s revocation of her community supervision. Once the trial

court adjudged the Appellant guilty, it did not abuse its discretion in assessing the

punishment of fourteen years incarceration for the second degree felony offense of

possession of marijuana. In assessing punishment, the trial court explained that

based on the evidence in the hearing, the Appellant did not intend to ever fulfill the

conditions of her community supervision as she failed to contact the community

supervision office for over two years. Therefore, based on the seriousness of the

crime and the actions of the Appellant while on community supervision, the trial

court did not abuse its discretion in assessing punishment within the statutory

range for the second degree felony offense of possession of marijuana.




Appellee’s Brief                                                                   Page 12 of 14
                                PRAYER FOR RELIEF

          The State of Texas respectfully requests this Honorable Court to affirm the

Trial Court’s adjudication as well as the conviction of Appellant in all respects.

                                          Respectfully Submitted by,



                                          ____________________________________
                                          LUKE MCLEAN INMAN
                                          100TH JUDICIAL DISTRICT ATTORNEY
                                          800 West Avenue, BOX 1
                                          Wellington, TX 79095
                                          State Bar No. 24050806
                                          (806) 447-0055 – Telephone
                                          (866) 233-2738 – Facsimile
                                          luke.inman@windstream.net


                            CERTIFICATE OF SERVICE

          I, Luke M. Inman, hereby certify that a true and correct copy of the

foregoing Brief was on this the 26th day of October, 2015, forwarded to counsel of

record by the United States Postal Service in accordance with the Texas Rules of

Appellate Procedure.



                                                 ______________________________
                                                 Luke M. Inman, District Attorney




Appellee’s Brief                                                                 Page 13 of 14
                         CERTIFICATE OF COMPLIANCE

          I, Luke M. Inman, hereby certify that the above and foregoing Appellee’s

Brief is 2,994 words in its completion, signed on this the 26th day of October,

2015, in accordance with the rules governing same.



                                               ______________________________
                                               Luke M. Inman, District Attorney




Appellee’s Brief                                                             Page 14 of 14
