                                                                                    ACCEPTED
                                                                                06-15-00004-CR
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                            7/1/2015 2:55:07 PM
                                                                               DEBBIE AUTREY
                                                                                         CLERK




                                                               FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
                                                        7/1/2015 2:55:07 PM
                             No. 06-15-00004-CR             DEBBIE AUTREY
                                                                Clerk
__________________________________________________________________________

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

                               LESLIE LEE
                                                      Appellant,

                                     v.

                          THE STATE OF TEXAS


                    Appealed from the 188th District Court
                            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:      Leslie Lee

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:         Ms. Tanya Reed
                                       Assistant District Attorney, Gregg County
                                       101 E. Methvin, Suite 333
                                       Longview, Texas 75601
                                       TSB No. 24039204




                                                 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.                            ................................................... 2

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

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

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

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     5

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                            5




                                                                                      ii
                                              INDEX OF AUTHORITIES

                                                                Cases


Ingraham v. Wright, 430 U.S. 651, 671-72, n. 40 (1977); 44 Geo. L. J. Ann. Rev. Crim. Proc.
1013 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ewing v. California, 538 U.S. 11, 18-20 (2003) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Solem v. Helm, 463 U.S. 277, 292 (1983)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Harmelin v. Michigan, 501 U.S. 957, 965 (1991)(Scalia, Jr., concurring)... . . . . . . . . . . . . . 3

Atkins v. Virginia, 536 U.S. 304,311 (2002)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Glossip v. Gross, - -U.S.- - No. 14-7955, dec’d June 29, 2015... . . . . . . . . . . . . . . . . . . . . . . 5




                                                Constitutional Provisions


Eighth Amendment to The United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                                   iii
                               STATEMENT OF THE CASE

Offense:       Theft

Verdict:       Guilty; Six (6) months’ confinement - Texas Department of Criminal Justice
               - State Jail.

Date of Verdict:       October 8, 2014.

Trial Court:   188th District Court, Gregg County, Texas.

       This case involves a prosecution for Theft-Habitual, pursuant to Section 31(e)(4)(D),

Texas Penal Code, in Cause Number 42,954-A, in the 188th District Court of Greg County,

Texas. The Appellant entered a plea of guilty to the Trial Court. (R.R., at 5.) This occurred

as an “open plea” (id., at 8) - - that is, no plea agreement existed between the State and the

Appellant. Following a hearing on punishment, the Trial Court imposed a sentence of six

months’ confinement in a State Jail. (Id., at 21.)



                   STATEMENT REGARDING ORAL ARGUMENT

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

and the briefs, the Appellant respectfully does not request oral argument.



                                    ISSUE PRESENTED

       The Trial Court’s imposition of a term of six months’ confinement violates the

proportionality guarantees of the Eighth Amendment to the United States Constitution.




BRIEF OF APPELLANT, LESLIE

                                                                                          PAGE 1
                                STATEMENT OF THE FACTS

          The record reflects that the underlying theft in this case involved shoplifting at Wal-

Mart. (R.R., at St. Ex. 2.) “The total for all the items taken was $111.74.” (Id.) All items were

recovered, and released by the Longview Police Department back to Wal-Mart. (Id.)

                 Although the Appellant did have prior theft convictions, these were shown to be

both remote and minor. (Id., at 13.) She also has a prior felony conviction, for Driving While

Intoxicated, which resulted in a prison sentence of eight years. But she had attended college, at

the time of the hearing, and lacked only a single semester of finishing her degree (Id., at 7; 13-

14.) She had also maintained gainful employment before becoming a full-time student. Id., at

13-14.)



                             SUMMARY OF THE ARGUMENT

          The disparity between the seriousness of the primary offense (misdemeanor

shoplifting) and the severity of the sentence (six months’ confinement in State Jail) violates

the Eighth Amendment to the United States Constitution.



                                        ARGUMENT

          The Eighth Amendment prohibits the infliction of cruel and unusual punishment

upon persons convicted of crime. Ingraham v. Wright, 430 U.S. 651, 671-72 n. 40 (1977);

44 Geo. L. J. Ann. Rev. Crim. Proc. 1013 (2015). The Cruel and Unusual Punishment

Clause limits criminal punishment in three ways: (1) it “imposes substantive limits on what

can be made criminal and punished as such;” (2) it prohibits certain kinds of punishment;



BRIEF OF APPELLANT, LESLIE

                                                                                          PAGE 2
and (3) it prohibits punishment “grossly disproportionate” to the severity of the offense.

Inghram, supra; Ewing v. California, 538 U.S. 11, 18-20 (2003).

       In Solem v. Helm, 463 U.S. 277, 292 (1983), the Supreme Court held that the

primary inquiry in analyzing the proportionality of sentences should involve a comparison of

the gravity of the offense with the harshness of the penalty. Subsequently, the Court has

stated that the two additional factors set forth in Solem –a comparison of the sentence with

those imposed for various offenses in the same jurisdiction and a comparison of the sentence

with those imposed for the same or similar offenses in other jurisdictions–should only be

considered “to validate an initial judgement that a sentence is grossly disproportionate to a

crime.” Harmelin v. Michigan, 501 U.S. 957, 965 (1991)(Scalia, Jr., concurring). The

concurrence in Harmelin concluded that Solem “is best understood as holding that

comparative analysis within and between jurisdictions is not always relevant to

proportionality review.” Harmelin, supra, at 1004-05 (Kennedy, J., concurring in part and

concurring in the judgment).

       It is respectfully submitted in the instant case that the sentence of six months’

confinement in a State Jail constitutes a “grossly disproportionate” sentence in light of the

underlying offense of shoplifting. This offense, as noted above, involved a minimal amount

(and value) of property. The property was recovered and returned to the owner (Wal-Mart).

       The Appellant also respectfully submits that this disproportionality of sentence

compared to conduct operates independently of any existing matrix of sentences in similar

cases. The Appellant instead relies on the prevailing norms of society as a whole, and the

recognition that societal standards regarding punishment evolve over time. As Justice Breyer



BRIEF OF APPELLANT, LESLIE

                                                                                           PAGE 3
recently opined in dissent (Ginsburg joining):

               “The Constitution there forbids the “inflict(ion)” of “cruel and unusual
               punishments.” Amdt. 8. The Court has recognized that a “claim that
               punishment is excessive is judged not by the standards that prevailed in 1685
               when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of
               Rights was adopted, but rather by those that currently prevail.” Atkins v.
               Virginia, 536 U.S. 304,311 (2002). Indeed, the Constitution prohibits various
               gruesome punishments that were common in Blackstone’s day. See 4 W.
               Blackstone, Commentaries on the Laws of England 369-370 (1769) (listing
               mutilations and dismembering, among other punishments).

Glossip v. Gross, - -U.S.- - No. 14-7955, dec’d June 29, 2015.

       The instant case arises at a time of great and growing concern over the great and

increasing numbers of people incarcerated in the American criminal justice system. See, e.g.,

The Economist, “Jailhouse nation” (cover story), June 20, 2015 edition. The Appellant has

shown no proclivities towards violence. To the degree that her punishment encompasses a

theory of deterrence of recidivism --see Argument of the State, R.R., at 17-18,--the prior

offenses are both non-violent and involve small amounts of money or property value. It is in

this setting that the Appellant respectfully submits her sentence must be viewed as “grossly

disproportionate” under the Eighth Amendment.




BRIEF OF APPELLANT, LESLIE

                                                                                       PAGE 4
                                          PRAYER

       The Appellant respectfully requests this case be reversed and remanded to the Trial

Court 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



                              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 1st day of July 2015.



                                              __/s/ Clement Dunn_______________



                           CERTIFICATE OF WORD COUNT

       I hereby certify that a total of 1309 words are included in this brief.



                                              __/s/ Clement Dunn_______________



BRIEF OF APPELLANT, LESLIE




                                                                                         PAGE 5
