                                                                           ACCEPTED
                                                                       13-15-00208-CR
                                                       THIRTEENTH COURT OF APPEALS
                                                              CORPUS CHRISTI, TEXAS
                                                                   7/6/2015 2:22:31 PM
                                                                CECILE FOY GSANGER
                                                                                CLERK

                 CAUSES 13-15-00208-CR

IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT  OF TEXAS AT
                                          FILED IN
                                        13th COURT OF APPEALS
                                     CORPUS CHRISTI/EDINBURG, TEXAS
                 CORPUS CHRISTI,   TEXAS
                                         7/6/2015 2:22:31 PM
                                          CECILE FOY GSANGER
                                                 Clerk



           VIRGINIA FAYE HOLLOWAY, APPELLANT


                          VS.

             THE STATE OF TEXAS, APPELLEE




                   APPELLANT’S BRIEF

                 Trial Cause 14-7-9253

              Jackson Co. District Court




                     Submitted by

                  W. A. (BILL) WHITE
                Attorney for Appellant
             POB 7422, Victoria, TX 77903
              (361) 575-1774 voice & fax
                     TBN 00788659


              ORAL ARGUMENT NOT REQUESTED
                           1
            IDENTITY OF PARTIES AND COUNSEL

    Appellant was represented at trial by Ms. Brenna
Crane, Attorney at Law, 302 West Forrest Street,
Victoria, TX 77901. Appellant is represented on appeal
by Mr. W. A. (Bill) White, Attorney at Law, POB 7422,
Victoria, TX 77903-7422.

    During trial, appellant was a resident of Victoria
County, Texas. Appellant is now incarcerated in
IDTDCJ.

    The State was represented at trial by Mr. Robert E.
Bell, D.A. and Ms. Pam Guenther, A.D.A. of the Jackson
County District Attorney’s Office, 115 W. Main Street,
Room 205, Edna, TX 77957. Appellant anticipates that
Mr. Jim Vollers, Attorney at Law, 2201 Westover Road,
Austin, TX 78703, will handle the State’s reply brief
in this cause.




                           2
                      TABLE OF CONTENTS

                                           Page

Index of Authorities                        4

Appellant’s Brief                           5

Statement of Case and Statement of Facts    5

Issue Presented                             6

Summary of Argument                         7

Argument                                    7

Sole Issue                                  7

Prayer                                      9

Certificate of Service                      9-10

Certificate of Compliance                   10




                              3
                 INDEX OF AUTHORITIES

Cases                                         Page

Coker v. Georgia, 433 U.S. 584 (1977)         8

Solem v. Helm, 463 U.S. 277 (1983)            8

Trop v. Dulles, 356 U.S. 86 (1958)            9

Weems v. United States, 217 U.S. 349 (1910)   8




Constitutional Provisions

U.S. Const. amend VIII                        8




                            4
                     CAUSE 13-15-00208-CR
                    Trial Cause 14-7-9253

VIRGINIA FAYE HOLLOWAY, Appellant IN THE THIRTEENTH

VS.                                    COURT OF APPEALS AT

THE STATE OF TEXAS                     CORPUS CHRISTI, TEXAS


                      APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

       COMES NOW APPELLANT, VIRGINIA FAYE HOLLOWAY,

through counsel, W. A. (BILL) WHITE, Attorney at Law,

showing:

          STATEMENT OF CASE AND STATEMENT OF FACTS

       Appellant was indicted in July 2014 for felony DWI.

The indictment alleged a prior felony conviction in an

enhancement paragraph, making the offense one of repeat

felony offender, a second degree felony (2 to 20 years

in IDTDCJ and up to a $10,000 fine). (RR Vol. 2, pp. 4-

10).

       Four previous DWI convictions were used to

initially enhance the instant offense, normally a

misdemeanor, into a felony.       The indicted DWI was


                              5
alleged to have occurred on or about 6/09/14 in Jackson

County, Texas.

    Appellant, with the assistance of counsel, pled

“guilty” to her indictment without plea agreement on

2/17/15 in open court, and “true” to all enhancement

paragraphs. (RR Vol. 2, p. 5 and 9).   Appellant also

waived her right to a jury on guilt/innocence. (RR Vol.

2, p. 4, lines 18-21).

    The issue of punishment was tried before the bench

on 2/18/15. (RR Vol. 3).   Both sides presented

evidence.   At the conclusion of evidence and argument,

the trial court assessed punishment at 10 years IDTDCJ

plus court costs. (RR Vol. 3, pp. 49-50).   Appellant

appealed.



                     ISSUE PRESENTED

APPELLANT’S SENTENCE OF 10 YEARS IN PRISON CONSTITUTES
             CRUEL AND UNUSUAL PUNISHMENT




                            6
                     SUMMARY OF ARGUMENT

       Appellant is an alcoholic who should have received

a prison sentence shorter than 10 years under evolving

standards of decency echoed in the eighth amendment.



                          ARGUMENT

                         SOLE ISSUE

       Testimony at the punishment phase revealed an older

woman with a long history of alcoholism.    Appellant had

a history of numerous contacts with law enforcement

involving alcohol abuse and sometimes firearms.    She

can be heard during and after her arrest on 6/09/14,

talking loudly and drunkenly in the patrol car which

transported her to the Jackson County jail. (RR, SX-6)

       Appellant’s trial lawyer argued that appellant

should be given the minimum sentence allowed by law in

this cause, only 2 years in prison. (RR Vol. 3, pp. 48-

49).

       Appellant concedes that no objection on cruel and

unusual punishment grounds was lodged by trial counsel


                              7
when she was sentenced to 10 years in prison.    This

being said, her sentence is disproportionate to her

crime.

    The constitutional principal of proportionality has

been recognized explicitly in the U.S. Supreme Court

for over a hundred years. See generally Weems v. United

States, 217 U.S. 349 (1910).    A criminal sentence must

be proportionate to the crime for which the defendant

has been convicted. Solem v. Helm, 463 U.S. 277, 291

(1983).   A court must consider the severity of the

penalty in deciding whether it is disproportionate.

See, e.g., Coker v. Georgia, 433 U.S. 584, 598 (1977).

The prohibition against cruel and unusual punishment is

contained in the eighth amendment to the federal

constitution. See U.S. Const. amend VIII.

    Given that alcoholism is a disease, appellant

should have received less than 10 years in prison.

While alcoholism has a behavioral component (i.e., the

afflicted chooses to drink), it is still a sickness,

and so is different from crimes such as theft or


                            8
assault, which are criminalized violations of moral

codes common to all societies and cultures.

    Applying the evolving standards of decency that

mark the progress of a maturing society [see generally

Trop v. Dulles, 356 U.S. 86 (1958)], appellant’s prison

sentence in this cause should be vacated and rendered

for less than 10 years.



                          PRAYER

    Appellant prays that her sentence be vacated in

this cause and rendered for less than 10 years.

                                Respectfully submitted,

                                /s/ W. A. White
                                W. A. (BILL) WHITE
                                ATTORNEY FOR APPELLANT
                                POB 7422, Vict., TX 77903
                                (361) 575-1774 voice/fax
                                TBN 00788659

                CERTIFICATE OF SERVICE

    I certify that a true and correct copy or duplicate

original of the foregoing has been provided to Mr.

Robert E. Bell, D.A., Jackson Co. District Attorney’s

Office, 115 W. Main Street, Room 205, Edna, TX 77957

                            9
via U.S. mail, fax, electronic delivery, or hand-

delivery on this the 6th day of July 2015.

                                /s/ W. A. White
                                W. A. White


               CERTIFICATE OF COMPLIANCE

    I certify that this brief contains 980 words.

                                /s/ W. A. White
                                W. A. White




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