                                                                    PD-1191-15
                           PD-1191-15             COURT OF CRIMINAL APPEALS
                                                                   AUSTIN, TEXAS
                                                  Transmitted 9/15/2015 3:50:42 PM
                                                   Accepted 9/16/2015 12:53:34 PM
                NO.    PD-_______________                           ABEL ACOSTA
                                                                            CLERK
   TO THE COURT OF CRIMINAL APPEALS OF TEXAS


            Leonard James Hall, Appellant
                              v.
            The State of Texas, Appellee
                       *************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                      ***************
              FROM THE COURT OF APPEALS
        SECOND APPELLATE DISTRICT OF TEXAS
                     FORT WORTH, TEXAS


                     NO.   02-15-00094-CR


                       TARRANT COUNTY
               TRIAL COURT NO. 1352061D


                                            R. Scott Walker
                                      STATE BAR # 24004972
                                    222 W. Exchange Avenue
                                      Fort Worth, TX 76164
September 16, 2015
                                            (817) 478-9999
                                   (817) 977-0163 FACSIMILE
                                    scott@lawyerwalker.com
                                    Attorney for Appellant


                Oral Argument Requested
                               1
   IDENTITY OF TRIAL JUDGE, PARTIES, AND COUNSEL

    The following is a complete list of all
parties, the trial judge, as well as the names and
addresses of all counsel.

Trial Judge:              Hon. Mollie Westfall

Appellant:                Leonard James Hall

Trial Counsel:            Dan Pitzer
                          Attorney at Law
                          204 N. Main Street
                          Mansfield, Texas 76063

Appellate                 R. Scott Walker
Attorney for Appellant:   Attorney at Law
                          222 W. Exchange Avenue
                          Fort Worth, Texas 76164

Appellee:                 The State of Texas

Trial Attorney for        Rebecca D. McIntire
Appellee:                 Tarrant County Assistant
                          District Attorney
                          401 W. Belknap
                          Fort Worth, Texas 76196

Appellate Attorney for    Sharen Wilson
Appellee:                 Tarrant County
                          District Attorney
                          401 W. Belknap
                          Fort Worth, Texas 76196




                          2
                    TABLE OF CONTENTS
                                                  PAGE
IDENTITY OF PARTIES AND COUNSEL    . . . . . . . .   2
TABLE OF CONTENTS    . . . . . . . . . . . . . . .   3
INDEX OF AUTHORITIES    . . . . . . . . . . . . . . 4
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . .      4
STATEMENT OF THE CASE . . . . . . . . . . . . . . 5
STATEMENT OF PROCEDURAL HISTORY OF THE CASE. . .      6
QUESTION PRESENTED     . . . . . . . . . . . . . . . 6
ARGUMENT (WAIVER OF DISPROPORTIONALITY OF
SENTENCE COMPLAINTS). . . . . . . . . . . . . . . 6
PRAYER . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE . . . . . . . . . . .      15
APPENDIX. . . . . . . . . . . . . . . . . . . .      16




                            3
               INDEX OF AUTHORITIES

                       CASES

Davis v. State,
    905 S.W.2d 655,     (Tex.App.--Texarkana
    1995, pet. ref’d). . . . . . . . . . . . . .   8

Ex Parte Beck,
    922 S.W.2d 181 (Tex.Crim.App. 1996). . . . .   9

Ex Parte Torres,
    943 S.W. 2d 469 (Tex.Crim.App. 1997) . . . . 10

Ex Parte McIver,
    586 S.W.2d 851 (Tex.Crim.App. 1979) . . . . . 9

Graham v. Florida,
    560 U.S. 48,(2010). . . . . . . . . . . . . . 9

Kim v. State,
    283 S.W.3d 473 (Tex.App.--Fort Worth,
    2009, pet ref’d). . . . . . . . . . . . . 9, 12

Pruitt v. State,
    737 S.W. 2d 622 (Tex.App.—Fort Worth, pet.
    Ref’d) . . . . . . . . . . . . . . . . . . . 8

Solem v. Helm,
    463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d
    637 (1983). . . . . . . . . . . . . . . . .    8

State v. Aguilera,
    165 S.W. 3d 695 (Tex.Crim.App. 2005). . . . . 8

State v. Savage,
    933 S.W.2d 497, 499 (Tex.App. 1996) . . . . . 9




                         4
            STATEMENT REGARDING ORAL ARGUMENT

    Oral argument of this case is hereby requested
on behalf of Appellant.

     All references to Texas statutes, rules, etc.
are references to the latest edition published by
West    Publishing   Company,   unless   otherwise
indicated.


LEONARD JAMES HALL, Appellant-Applying for Review

V.

THE STATE OF TEXAS, Appellee



************

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

************

TO   THE   HONORABLE   COURT       OF   CRIMINAL   APPEALS   OF

TEXAS:

                  STATEMENT OF THE CASE

      This appeal has resulted from a probation
revocation for aggravated assault with a deadly
weapon.    On March 20, 2015, appellant pled not true
to the allegations in the Petition to Proceed to
Adjudication.    (C.R. Vol. 1, p. 58, R.R. v. 1, p.
1-10).     After evidence was presented, the trial
judge found all but one of the allegations to be
                               5
true and set punishment at seven years confinement.
(C.R. Vol. 1, p. 58).


    STATEMENT OF PROCEDURAL HISTORY OF THE CASE

    The Court of Appeals rendered its decision and

delivered      its   written     non-published      memorandum

opinion   on    August    27,   2015.      The   deadline    for

filing    a    Petition   for       Discretionary   Review    is

September 26, 2015.

                     QUESTION PRESENTED

    Whether disproportionate sentencing is waived

if not presented to the trial court or in a motion

for new trial.

                           ARGUMENT

    The Second Court of Appeals, in this case and

in many others, has held that a disproportionality

complaint is forfeited when there is no complaint

during the trial or in a motion for new trial.               The

Court of Criminal Appeals has consistantly declined

to rule on this issue.          This is an important issue

that begs to be heard by this Honorable Court.



                                6
       It is well-established under Texas Law that a

sentence imposed by a judge within the statutory

range is not an abuse of discretion.                       This court

does     not    have       the   jurisdiction       to     review   the

reasonableness of punishment assessed by a trial

court of this State if it is within the range of

punishment prescribed by statute for the offense,

unless it is so plainly disproportionate to the

offense as to shock the sense of humankind and thus

constitute cruel and unusual punishment prohibited

by the United States and Texas Constitutions.                       See

Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001,

77 L.Ed.2d 637, 649 (1983), Davis v. State, 905

S.W.2d      655,     664    (Tex.App.--Texarkana           1995,    pet.

ref’d).        In the instant case, the trial judge set

sentence at seven years, when the maximum for the

offense was 20 years.

       In      the     instant             case,   there     was      no

disproportionality complaint during the trial or in

a   subsequent       motion      for       new trial.      Again, the

Second Court of Appeals has consistently held that

proportionality complaints are forfeited when there
                                       7
is no complaint during the trial or in a subsequent

motion for new trial.               Kim v. State, 283 S.W.3d

473, 475 (Tex.App.--Fort Worth 2009, pet ref’d).

However,      Justice          Dauphinot    has,     on     several

occasions, dissented as to that issue.

      In   Kim,         Justice     Dauphinot     very    carefully

delineates the practical problems with the majority

holding.      In    a criminal case, pronouncing sentence

in open court in the presence of the defendant ends

the trial; that act triggers the running of the

appellate timetable.              State v. Aguilera, 165 S.w.

3d 695, 698 (Tex.Crim.App. 2005),               Pruitt v. State,

737 S.W. 2d 622, 623 (Tex.App.—Fort Worth, pet.

Ref’d).       Unlike a civil case, in which there is

usually a delay between pronouncing the verdict in

open court and signing the judgment, there is no

lag    time        in     a    criminal    case     between     the

pronouncement of sentence and its execution. Once a

defendant begins serving the sentence, it is too

late to change it. Although there has been some

suggestion that a judge may immediately change the

sentence,     there       is   no   provision in the code        of
                                    8
criminal       procedure              for        offering        evidence       of

disproportionality                 after          sentencing,          as      the

admission           of         additional                 evidence            after

pronouncement            would     effectively            create       a    second

punishment      phase.         A      defendant         cannot        object    in

advance that a sentence is disproportionate because

until    the    sentence           is   pronounced,             the    defendant

does not know that it will be objectionable.

     Justice Dauphinot also asks, “Does the majority

contend      that         a    defendant            must       ask     for     re-

sentencing?”              How?”                 There     is     no    judgment,

notwithstanding the verdict (JNOV) in a criminal

case.       State         v.     Savage,          933     S.W.2d       497,     499

(Tex.App. 1996). There is no provision in the rules

of   appellate       procedure              or    the     code    of    criminal

procedure       that      permits           an     oral      motion     for    new

trial,    and       it    would       probably          be     malpractice       to

lodge    one    on       the   sentencing issue at trial and

fore-go raising other issues later in a traditional

motion for new trial.

     While      a    party       in     a       civil   case     must file a

motion for new trial, in order to lodge a factual
                                            9
sufficiency issue on appeal of a jury verdict, in

criminal       cases       the      motion       for         new    trial     is

expressly       not        a     prerequisite           to     raising       the

complaint on appeal; rather, it is merely a vehicle

to provide an adequate record in support of that

claim.

      The     problem       a    defendant       faces        in    raising    a

proportionality claim under the Eighth Amendment is

one      of     providing           a        sufficient            record     of

disproportionality.               Such        claim     should        not     be

dismissed out of hand, for failure to raise it in

the   trial         court,        anymore       than     an        ineffective

assistance          of     counsel           claim     should        be     held

forfeited by not raising it at trial or in a motion

for new trial.

      Also, as Justice Dauphinot points out, another

reason      courts        have     given       for     not     enforcing       a

procedural       bar       in     this       context     of        ineffective

assistance      is       because        there    is     not    generally       a

realistic      opportunity           to      adequately        develop       the

record for appeal in post-trial motions. In this

regard,       the        courts     have        noted        that    a      post-
                                        10
conviction writ proceeding, rather than a motion

for    new        trial,   is       the   preferred       method     for

gathering the facts necessary to substantiate such

a Sixth Amendment challenge.                   While expansion of

the record may be accomplished in a motion for                       new

trial, that vehicle is often inadequate because of

time constraints and because the trial record has

generally         not   been    transcribed        at    this   point.

Further, mounting an ineffective assistance attack

in a motion for new trial is inherently unlikely if

the trial counsel remains counsel during the time

required      to    file   such      a motion. Hence, in most

ineffective         assistance       claims,   a   writ    of   habeas

corpus       is     essential        to   gathering       the      facts

necessary to adequately evaluate such claims.                        The

pursuit of such a claim on direct appeal may be

fruitless.         Ex parte Torres, 943 S.W. 2d 469, 475

(Tex.Crim.App. 1997).

      Just as the courts have held that a defendant

can   rarely        sustain     a    complaint      of    ineffective

assistance of counsel or jury misconduct on direct

appeal; the Second Court of Appeals holds that a
                                     11
criminal defendant can rarely sustain a complaint

of disproportionality on direct appeal. A defendant

cannot complain about a disproportionate sentence

before        it     is     pronounced.             Disproportionality

requires a showing beyond a defendant's not liking

the         sentence.        It         requires          evidence          of

disproportionality.              Even       a     mere     objection        is

problematic         because      the    trial       is    over    when     the

sentence is pronounced, so an objection could be

lodged only after the trial has ended. What would

that        proceeding      be     called?          Disproportionality

complaints, like those of ineffective assistance,

should       be     reviewable         in       appellate       proceedings

regardless of whether the complaint was brought to

the attention of the trial court.                          Kim v. State,

dissenting          opinion,       283          S.W.3d     473,     476-479

(Tex.App.—Fort Worth, 2009, pet ref’d).

       It    will    be    noted   that         Justice        Dauphinot    is

correct that requiring an objection to the sentence

during the trial or in a motion for new trial is so

impractical         that    the    burden         on     the    defense    to

preserve the error is virtually insurmountable.                            It
                                       12
should also be noted that the recent U.S. Supreme

Court holding in Graham makes it clear that the

test in Solem is still the test today.                     Grahm v.

Florida, 560 U.S. 48,60 (2010).

     Without minimalizing the practicality concerns

deliniated by Justice Dauphinot, there is another

basis     for     a    holding      that   failure    to   bring    a

disproportionality complaint before the trial court

is not waiver.           The argument is founded on well-

settled constitutional law.                The Court of Criminal

Appeals     has       held   that     a    sentence   outside      the

statutory range is void and that the complaint can

be brought for the first time on appeal.                   Ex parte

Beck, 922 S.W.2d 181, 182 (Tex.Crim.App. 1996), Ex

parte McIver, 586 S.W.2d 851, 854 (Tex.Crim.App.

1979).     The analysis is that a sentence which is

outside the statutory range is an illegal sentence

which is unauthorized by law and is therefore void.

A   sentence      which      violates      the   Eighth    Amendment

because it is a disproportionate sentence is also

an illegal sentence which is not authorized by law.

After all, the U.S. Constitution is certainly the
                                    13
supreme law of the land.          Such a sentence is also

void, and the complaint should be reviewable when

brought for the first time on appeal.             Any cases

holding otherwise should be overruled.

                          PRAYER

      WHEREFORE, PREMISES CONSIDERED, Leonard James

Hall, appellant, prays that the case be reversed or

for   whatever   other   relief    he   has   shown   himself

entitled.

                         Respectfully Submitted,


                         S/Scott Walker

                         By: R. Scott Walker
                         Attorney for Appellant
                         222 W. Exchange Avenue
                         Fort Worth, Texas 76164
                         (817) 478-9999
                         (817) 977-0163 FAX
                         State Bar No. 24004972




                            14
                  CERTIFICATE OF SERVICE
     A copy of this petition was served by first
class   mail    to    the   Office          of    Criminal      District
Attorney,      Tarrant      County          Courthouse,         401   W.
Belknap, Fort Worth, Texas 76196 and to the State
Prosecuting     Attorney     at    P.O.          Box   12405,   Austin,
Texas 78711 on the 16th day of September, 2015.


                                            s/Scott Walker
                                            Scott Walker


                CERTIFICATE OF COMPLIANCE
     I certify that this document complies with the
length requirements as set forth by the Texas Rules
of   Appellate       Procedure         in    that      this     document
contains 2,228 words, and that the document is in
14 point type.
                                            s/Scott Walker
                                            Scott Walker




                                  15
APPENDIX




   16
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-15-00094-CR


LEONARD JAMES HALL                                                APPELLANT

                                      V.

THE STATE OF TEXAS                                                      STATE


                                   ----------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1352061D

                                   ----------

                       MEMORANDUM OPINION1

                                   ----------

      This is an appeal from a judgment revoking deferred adjudication

community supervision and adjudicating guilt. In 2013, Appellant Leonard James

Hall pleaded guilty, pursuant to a plea agreement, to aggravated assault with a

deadly weapon.     See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).

Following this plea, the trial court placed Hall on seven years’ deferred


      1
      See Tex. R. App. P. 47.4.
adjudication community supervision and imposed a $700 fine. In 2015, the State

filed a petition to proceed to adjudication, alleging in five paragraphs multiple

violations by Hall of the conditions of his deferred adjudication community

supervision. Hall pleaded not true to all five alleged violations. The trial court

found that Hall had committed the violations alleged in paragraphs 1, 2, 3, and 5;

revoked Hall’s deferred adjudication community supervision; adjudicated his guilt

of the offense of aggravated assault with a deadly weapon; and sentenced him to

seven years’ confinement. In a single issue, Hall argues that the seven-year

sentence imposed by the trial court is excessive and disproportionate. We will

affirm.

      Hall concedes that he did not object to his punishment when it was

imposed, nor did he raise this complaint in a motion for new trial. We have held

on numerous occasions that this type of claim must be preserved at the trial court

level. See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.

ref’d); Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no

pet.); see also Cisneros v. State, No. 02-06-00103-CR, 2007 WL 80002, at *1

(Tex. App.—Fort Worth May 23, 2007, pet. ref’d) (mem. op., not designated for

publication) (collecting cases); cf. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim.

App. 2013) (“A sentencing issue may be preserved by objecting at the

punishment hearing, or when the sentence is pronounced.”). Because Hall did




                                        2
not raise his complaint in the trial court, the complaint is forfeited. 2 We overrule

Hall’s sole issue.

      Having overruled Hall’s sole issue, we affirm the trial court’s judgment.


                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 27, 2015




      2
        Even if we were to reach the merits of Hall’s complaint, his punishment is
within the statutory limits for the offense. See Tex. Penal Code Ann. §§ 12.33(a),
30.02(c)(2) (West 2011). Punishment that is imposed within the statutory limits
and based upon the sentencer’s informed normative judgment is generally not
subject to challenge for excessiveness except in “‘exceedingly rare’” situations.
Kim, 283 S.W.3d at 476 (quoting Ex parte Chavez, 213 S.W.3d 320, 323–24
(Tex. Crim. App. 2006)); see also Davis v. State, 323 S.W.3d 190, 195–96 (Tex.
App.—Dallas 2008, pet. ref’d) (stating that punishment within statutory range was
not excessive, cruel, or unusual when defendant argued that the penitentiary
could not provide treatment for his medical condition).


                                         3
                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-15-00094-CR

Leonard James Hall                        §   From the 371st District Court

                                          §   of Tarrant County (1352061D)

v.                                        §   August 27, 2015

                                          §   Opinion by Justice Walker

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS

                                       By _/s/ Sue Walker___________________
                                          Justice Sue Walker
