                                                                              ACCEPTED
                                                                          12-15-00077-CR
                                                             TWELFTH COURT OF APPEALS
                                                                           TYLER, TEXAS
                                                                      7/3/2015 1:45:36 PM
                                                                            CATHY LUSK
                                                                                   CLERK

                  IN THE COURT OF APPEALS
             FOR THE TWELFTH DISTRICT OF TEXAS
                        TYLER, TEXAS                     FILED IN
                                                  12th COURT OF APPEALS
ROXANE YVETTE DAVIS                                    TYLER, TEXAS
          Appellant           '                    7/3/2015 1:45:36 PM
                              '                        CATHY S. LUSK
                                                           Clerk
                              '   NO. 12-15-00077-CR
                              '
THE STATE OF TEXAS,           '
           Appellee           '

                      ON APPEAL FROM THE
      241ST JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS
                          NO. 241-1149-14

                            ******

                      APPELLANT’S BRIEF

                            ******
                                  Submitted by:

                                  J. Brandt Thorson
                                  SBN: 24043958
                                  J. BRANDT THORSON, PLLC
                                  606 E. Methvin St.
                                  P.O. Box 3768
                                  Longview, Texas 75606
                                  (903) 758-4878
                                  (903) 212-3038 Facsimile
                             Identity of Parties and Counsel

Appellant: ROXANE YVETTE DAVIS

Appellee: The State of Texas, by and through her Criminal District Attorney of Smith
          County, D. Matt Bingham

Appellant’s Trial Counsel:

J. Brandt Thorson
SBN: 24043958
J. BRANDT THORSON, PLLC
606 E. Methvin St.
P.O. Box 3768
Longview, Texas 75606
jbt@jbtfirm.com

Appellant’s Appellate Counsel:

J. Brandt Thorson
SBN: 24043958
J. BRANDT THORSON, PLLC
606 E. Methvin St.
P.O. Box 3768
Longview, Texas 75606
jbt@jbtfirm.com

Appellee’s Trial Counsel:

Lucas R. Machicek
Smith County Assistant Criminal District Attorney
100 N. Broadway
Tyler, Texas 75702

Appellee’s Appellate Counsel:

Mike West
Smith County Assistant Criminal District Attorney
100 N. Broadway
Tyler, Texas 75702



                                               2
                                                     Table of Contents

Identity of Parties and Counsel .................................................................................. 2

Index of Authorities.................................................................................................... 4

I.        Statement of the Case ...................................................................................... 5

II.       Issues Presented ............................................................................................... 5

          1. Is confinement for a term of sixteen months in the instant cause
          cruel and unusual punishment in violation of the Eighth and
          Fourteenth Amendments of the United States Constitution because
          the sentence is disproportionate to the offense?

          2. Is Appellant’s sixteen-month sentence cruel and unusual
          punishment in violation of Tex. Code Crim. Proc. Ann. art. 1.09?

III.      Statement of Facts .......................................................................................... 6

IV.       Summary of the Argument .............................................................................. 10

          The trial court reversibly denied due process to Appellant when it
          arbitrarily refused to consider the entire range of punishment,
          refused to consider mitigating evidence and imposed punishment.

V.        Argument and Authorities ............................................................................... 11-15

VI.       Prayer............................................................................................................... 15

VII.      Certificate of Compliance and Certificate of Service ..................................... 16




                                                                   3
                                             Index of Authorities
Cases

Alvarez v. State, 63 S.W.3d 578, 580(Tex. App.-Fort Worth 2001, no pet.) ................... 13

Harmelin v. Michigan, 501 U.S. 957, 962 (1991). ............................................................ 14

Jacobs v. State, 80 S.W.3d 631 (Tex. App.—Tyler 2002, no pet.) ................................... 12

Kirk v. State, 949 S.W.2d 769, 772 (Tex. App. - Dallas 1997, pet. ref'd). ........................ 13

Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App. - Dallas 1994, pet. ref'd). ............. 13

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992) ... 13

Moore v. State, 54 S.W.3d 529, 542 (Tex. App. B Fort Worth 2001, pet. ref'd)). ............ 13

Ray v. State, 119 S.W.3d 454, 459(Tex.App.-Fort Worth 2003, pet.ref'd) ....................... 12

Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983) ................................... 12

Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3010-11 (1983) .......................... 14

United States v. Blake, 89 F.Supp.2d 328, 344-45 (E.D.N.Y. 2000). ............................... 15


Other Authorities
U.S. Const. amends. VIII, XIV ............................................................................... 5, 11, 14


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




                                                          4
                               I.          Statement of the Case

       This is an appeal from an open plea of guilty by Appellant to the 241st Judicial

District Court of Smith County, Texas. (Vol. 1:6). Roxane Yvette Davis’ entered a plea

guilty to the offense of theft as alleged in the indictment and pleas of true to two

allegations that she had previously been convicted of theft. (Vol. 1: 4; 13). Appellant was

sentenced by presiding Judge Jack Skeen to sixteen months confinement in a state jail

facility and no fine was assessed. (Vol. 2:75-76). 1

                                     II.      Issue Presented

1.     Confinement for a term of sixteen (16) months in the instant cause is cruel and

unusual punishment in violation of the Eighth and Fourteenth Amendments of the United

States Constitution because the sentence is disproportionate to the offense. U.S. Const.

amends. VIII, XIV.

2.     Appellant’s sixteen-month (16 month) sentence is cruel and unusual punishment in

violation of Tex. Code Crim. Proc. Ann. art. 1.09.

                                    III.     Statement of Facts

A.     Indictment



                 1 Appellant   refers to the Clerk’s Record as CR followed by the relevant page
              citation; he refers to the Reporter’s Record from the trial and revocation hearing
              as Vol. followed by the relevant volume number and page citation. For clarity, the
              STATE OF TEXAS will be referred to as “the State”, ROXANE YVETTE
              DAVIS will be referred to as “Defendant” or “Appellant” and Judge Jack Skeen
              will be referred to as “trial court” or “trial Judge”.



                                                  5
On September 4, 2014 Appellant was charged by indictment with the offense of theft of

property of the value of less than $1,500.00 with two or more previous convictions in

cause number 241-1149-14, allegedly committed on or about June 4, 2014. (CR: 1).

B.     Plea Proceedings

       On February 2, 2015, Appellant waived her right to a jury trial, pled guilty before

the trial court. (CR: 66). The matter was recessed, and on February 26, 2015 Appellant

appeared before the court and testimony was heard regarding the issue of punishment for

the offense of theft, a state jail felony. (CR: 66); (Vol. 1.: p.16; Vol. 2: p. 4).

C.     State’s Evidence

       On February 2, 2015, the State offered State’s Exhibit One, delineated as a plea

packed containing: a form entitled “Agreed Punishment Recommendation”; a form

“Entitled Acknowledgment of Admonishments”; a document entitled “Waiver of Trial by

Jury”; a document entitled “Agreement to Stipulate Testimony”; and a document entitled

“Waiver of Confrontation and Agreement to Stipulate”, State’s Exhibit Two, delineated

as a Stipulation of Evidence, and State’s Exhibit Three, delineated as discovery

compliance acknowledgment documents. (CR: 35; 41-47); (Vol. 1: p. 14). The Appellant

did not object. (Vol. 1: p.14).       The Court questioned the Appellant regarding the

voluntariness of her execution of the State’s offer of evidence, admitted the evidence

offered and recessed the proceedings pending Appellant’s request for a full presentence

investigation. (Vol. 1: p. 14-17).




                                                6
       On February 26, 2015, the state requested that the trial court take judicial notice of

the prior proceedings in the matter and of the presentence investigation report and rested

on the evidence. (Vol. 2: p.11).

D.     Defendant’s Evidence

       On February 26, 2015, Appellant began the presentation of her evidence at the

punishment phase of the trial. Defendant first offered a letter written by Albert

Thomasson, a representative of the Appellant’s employer as an addendum to the

presentence investigation report. (Vol. 2: p. 11). The state did not object to the offer of an

addendum and the court received the letter. Id. at 11-12.

       The trial court then heard testimony from Amber Clark, the Appellant’s pre-trial

supervision officer. (Vol 2. p. 12). Ms. Clark testified that she had supervised the

Appellant from October 1, 2014 through the date of her testimony. (Vol. 2: p. 13). Clark

testified that the Appellant had not missed a single weekly reporting appointment, had

met all financial obligations of her pre-trial supervised release, had not failed any drug

tests, and had never been less than cordial with Clark during the five months she was

required to report. (Vol. 2: pp. 13-14).

       The Appellant was then admonished by the court regarding her Fifth Amendment

rights and took the stand in her own defense. (Vol. 2: p. 15-18). Appellant testified that

she had received a plea agreement offer of nine months state jail from the State and

rejected it, choosing instead to ask the court for mercy and probation. (Vol. 2: p. 19-20).




                                              7
       Appellant had been employed at Grandy’s restaurant in Longview since

September of 2012 and served currently as an assistant manager. (Vol. 2: p. 20-21).

Grandy’s knew about the charges and would maintain her employment if she was granted

probation. Id. She testified that on June 4, 2014 she had travelled from Longview, Texas,

where she resides, to Tyler to make a car payment and stopped into a bridal shop in Tyler

to look at a dress for an upcoming family wedding. Id. She found a dress she liked and

left a receipt with her name on it with the proprietor as a marker to identify herself to the

woman so she could leave to go to her bank and obtain funds to pay for the dress. Id. at

22.

       Appellant had traveled with a woman named Aquilla Polk to Tyler that day, and

she was present in the store where Appellant left the receipt. (Vol. 2: p. 22-23). Appellant

learned after leaving the store that her employer required her to immediately return to

Grandy’s in Longview. (Vol. 2: p. 24). She learned when she stopped to fill her car with

gas that Aquilla Polk had stolen a purse from the bridal shop. Id. Appellant told Polk to

get rid of the purse, and she believed that Polk had done so, only later learning that the

credit cards belonging to the purse’s owner had been used at a gas station in Tyler and

various locations in Longview. (Vol. 2: p. 50-51). Appellant had loaned her car to Polk

that day following their return to Longview while she was at work. Id.

       Appellant admitted that she had a lengthy criminal history of theft and theft related

offenses. (Vol. 2: pp. 28-29; 36-39). Appellant served an entire three-year sentence from




                                             8
July 13, 2009 ending July 12, 2012 for the felony of engaging in organized criminal

activity. (Vol. 2: pp. 28; 41). She testified that three-year sentence changed her life. Id. at

29. She had not been arrested for any offense in the years since her release from that

sentence. (Vol. 2: P. 29-33) She had worked more than 50 hours a week at various jobs,

even gaining the trust of her employer at Grandy’s to allow her to handle the restaurant’s

daily cash deposits. Id. She was proud to have worked a legitimate job and earn almost

$20,000 in 2014, the most she had earned in her life. (Vol. 2: pp. 60-61).

       Appellant’s adult children are productive citizens; her daughter is on active duty in

the Navy. (Vol. 2: p. 29; 33). Appellant testified that her family was dependent on her

income and presence to care for her ailing mother and grandchildren. (Vol. 2: p. 33-34).

       Appellant admitted she did not do the right thing when she learned Polk had stolen

the shopkeeper’s purse, but denied that she knowingly participated in the actual theft of

the purse. (Vol. 2: p. 30). As a person who had previously committed many thefts, why

would she knowingly steal from someone with whom she had left her name and phone

number? (Vol. 2: p. 58).

       The Trial Court also heard from Diaetta Davis, the mother of the Appellant, who

testified that she had been working more than 50 hours per week for the last several years

and had made drastic life changes since her release from prison. (Vol. 2: p. 64).




                                              9
         The Trial court finally heard from a friend of Appellant, Joyce Toliver, who

described her attendance at and devotion to the Post Oak Baptist Church in Kilgore,

Texas.

E.       The Trial Court’s Ruling

         At the conclusion of the February 26, 2015 hearing, Appellant was sentenced to

sixteen (16) months State Jail. (CR: 38-39; 66). The Appellant appeals her conviction and

the sixteen-month (16 month) sentence assessed by the 241st Judicial District Court in

and for Smith County, Texas.

                              IV.    Summary of the Argument

         Issues Presented One and Two: Confinement for sixteen months (16 months) is

unconstitutionally cruel and unusual given the circumstances. The sixteen month

sentence imposed upon Appellant is so grossly disproportionate to the offense as alleged,

and in light of the facts and circumstances shown by the evidence presented to the trial

court, that the Court should reverse the instant cause and remand for a new hearing on

punishment.

                              V.     Argument and Authorities

     A. Issue Presented One

         Confinement for a term of sixteen months in the instant cause is cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments of the United States




                                             10
Constitution because the sentence is disproportionate to the offense. U.S. CONST. amends.

VIII, XIV.

   B. Issue Presented Two

       Appellant’s sixteen month sentence and one thousand dollar fine is cruel and

unusual punishment in violation of TEX. CODE CRIM. PROC. ANN. art. 1.09.

   C. Arguments and Authorities under Issues One and Two

       The sixteen month sentence imposed upon Appellant is so grossly disproportionate

to the offense as alleged, and in light of the facts and circumstances of violations

explicated in the hearing, that the Court should reverse the instant cause and remand for a

new hearing on punishment.

       1.     Preservation

       To the extent the State would argue Appellant has not objected in a timely fashion

and that her complaint is consequently not preserved pursuant to TEX. R. APP. P. 33.1(a),

Appellant would disagree and submit the following. The Court of Criminal Appeals and

other courts in particular have proceeded to address complaints of cruel and unusual

punishment after noting lack of preservation. See, e.g., Schneider v. State, 645 S.W.2d

463, 466 (Tex. Crim. App. 1983); see also Ray v. State, 119 S.W.3d 454, 459 (Tex. App.-

-Fort Worth 2003, pet. ref’d); Jacobs v. State, 80 S.W.3d 631 (Tex. App.—Tyler 2002,

no pet.).



                                                     11
       Moreover, the trial court certified Appellant’s right to appeal this case. (CR: 57);

See TEX. R. APP. P. 25.2(a)(2), (d). Lastly, and in any event, Appellant submits that her

complaint should be reviewed in the interest of justice.

       2.     Relevant History

       Appellant unwaveringly accepted responsibility for commission of this offense

and was forthright with the Court about the circumstances of the offense and her criminal

history. (Vol. 2, passim). Testimony was presented by Appellant that she had a steady

job that would allow her to remain employed even if convicted and that she would be

able to meet the terms and conditions of a probated sentence granted her. (Vol. 2, pp. 59-

60). Yet, despite this testimony, the trial court sentenced her to sixteen months’

confinement. (Vol. 2, p. 76). This punishment falls in the middle of the statutory

punishment range available to the Court for the charged offense, a State Jail Felony

Offense.

       3.     Applicable Law

       As a general rule, punishment assessed within the statutory range is not

unconstitutionally cruel and unusual. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.--

Dallas 1997, pet. ref’d). A narrow exception to the general rule that a sentence within the

statutory limits is not excessive, cruel, or unusual is recognized when the sentence is

grossly disproportionate to the offense. Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App.--



                                                     12
Fort Worth 2001, no pet.) (citing, among other authorities, Moore v. State, 54 S.W.3d

529, 542 (Tex. App.--Fort Worth 2001, pet. ref’d)).

      To analyze a disproportional claim, the reviewing court first makes a threshold

comparison of the gravity of the offenses to the severity of the sentences. See McGruder

v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992); Lackey v.

State, 881 S.W.2d 418, 420-21 (Tex. App.-- Dallas 1994, pet. ref’d). Where the threshold

comparison reveals the sentence is grossly disproportionate, the reviewing court then

compares the sentence to sentences received by others for similar crimes in this

jurisdiction and in other jurisdictions. McGruder, 954 F.2d at 316. A federal

proportionality analysis under the Eighth Amendment of the United States Constitution

considers: (1) the gravity of the offense and the harshness of the sentence; (2) sentences

for similar crimes in the same jurisdiction; and (3) sentences for the same crime in other

jurisdictions. See Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3010-11 (1983);

see also Harmelin v. Michigan, 501 U.S. 957, 962 (1991)

      4.     Analysis

      Simply put, the sentence imposed constitutes cruel and unusual punishment in

violation of the Eight Amendment of the United States Constitution, as applied to the

states through the Fourteenth Amendment, and article 1, section 19 of the Texas

Constitution. U.S. CONST. amends. VIII, XIV; TEX. CONST. art. 1, 19.



                                                      13
       The sixteen month sentence in the case at bar is grossly disproportionate to the

charged offense. Comparing the gravity of the offense against the severity of the sentence

compels the conclusion that the sentence violated constitutional constraints. Appellant

freely admitted to her participation and complicity, after the fact, in the offense of theft

and accepted responsibility for the offense before the Court. (Vol 2, p. 25; 30). Defendant

further identified a previously unknown actor in the offense to the State at the time of her

sentencing hearing. Id. at 23. Despite her frank and unwavering acceptance of

responsibility and candor with the Court, Appellant was sentenced to sixteen months’

confinement in the Texas prison system. The harsh conditions of this system have

received mention in other jurisdictions. See, e.g., United States v. Blake, 89 F.Supp.2d

328, 344-45 (E.D.N.Y. 2000). As a consequence, Appellant submits that her punishment

is cruel and unusual in violation of the Eight and Fourteenth Amendments of the United

States Constitution and in violation of TEX. CODE CRIM. PROC. ANN. art. 1.09.

Accordingly, a reversal of the instant cause and remand for a new sentencing hearing is

warranted.

                                      VI.    Prayer

       Upon the issue presented, Appellant prays for a reversal of her conviction, and a

remand for a new punishment hearing, and for any such other relief at law she may be

granted.



                                                      14
                                              Respectfully submitted,



                                              By:         /s/ J. Brandt Thorson
                                                         J. Brandt Thorson
                                                         SBN: 24043958
                                                         J. BRANDT THORSON, PLLC
                                                         606 E. Methvin St.
                                                         P.O. Box 3768
                                                         Longview, Texas 75606
                                                         (903) 758-4878
                                                         (903) 212-3038 Facsimile
                                                         jbt@jbtfirm.com


                        CERTIFICATE OF COMPLIANCE

       I certify that this brief contains 2983 words according to the computer program
used to prepare the document.

                                              ______/s/ J. Brandt Thorson
                                                    J. Brandt Thorson


                           CERTIFICATE OF SERVICE

       I, the undersigned certify that a true and correct copy of Appellant’s Brief was
served to D. Matt Bingham, Criminal District Attorney of Smith County, on this 3rd day
of July, 2015 electronically through the electronic filing manager.


                                                         /s/ J. Brandt Thorson
                                                         J. Brandt Thorson
                                                         SBN: 24043958




                                                    15
