                                                                                               ACCEPTED
                                                                                          01-14-00506-CR
                                                                                FIRST COURT OF APPEALS
                                                                                        HOUSTON, TEXAS
                                                                                    1/19/2015 12:00:00 AM
                                                                                      CHRISTOPHER PRINE
                                                                                                   CLERK

                             No. 01-14-00506-CR

                                 In the                      FILED IN -
                        COURT OF APPEALS           1st COURT OF--APPEALS
                                                                             - ----
                                                       HOUSTON,            -
                                                                        --- TEXAS
                                For the                        - - ----ID K ------
                                                   1/18/2015
                                                           - 11:57:12
                                                             -                 -- AM
                                                       ---- VO ------
                FIRST SUPREME JUDICIAL DISTRICTCHRISTOPHER          ----        A. PRINE
                                                                ---Clerk
                              at Houston                  - - -

               ______________________________________

             On Appeal from the 240th Judicial District Court of
                                                                  FILED IN
                         Fort Bend County, Texas           1st COURT OF APPEALS
                     Cause Number 12-DCR-059402                HOUSTON, TEXAS
                                                           1/20/2015 11:49:00 AM
              ______________________________________
                                                                CHRISTOPHER A. PRINE
                                                                       Clerk
             DANIEL DESANTIAGO-CARRAZA, Appellant
                                 v.
                  THE STATE OF TEXAS, Appellee
               _____________________________________

                        APPELLANT’S BRIEF
                _____________________________________



Counsel for Appellant                       MICHAEL W. ELLIOTT
Daniel DeSantiago-Carraza                   ATTORNEY AT LAW
                                            STATE BAR NUMBER 06546540
                                            905 Front Street
                                            Richmond, Texas 77469
                                            (832) 496-5000
                                            (281) 238-3141 (Fax)
                                            Mike@Elliottslaw.com



                   ORAL ARGUMENT REQUESTED
                      IDENTIFICATION OF PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the
names of all interested parties is provided below so the members of this Honorable
Court may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of this case.

Appellant:

Daniel DeSantiago-Carraza

Counsel for Appellant:

Don Hecker (at trial)
200 Hwy. 90-A, #B
Richmond, Texas 77461

Michael W. Elliott (on appeal)
905 Front Street
Richmond, Texas 77469

Counsel for Appellee, The State of Texas:

John Healey
Fort Bend County District Attorney
Tyra McCollum (at trial)
Loretta Owen (at trial)
Stuti Patel (at trial)
John Harrity (on appeal)
Assistant District Attorneys
310 Jackson Street
Richmond, Texas 77469

Trial Court Judge:

The Honorable Thomas R. Culver, III
The Honorable Daniel Sklar
The Honorable Lee Duggan, Jr.

                                        ii
                                     TABLE OF CONTENTS


IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

        I.       Appellant suffered a Due Process Violation when the trial court
                 refused to consider the entire range of punishment and refused
                 to consider relevant evidence that mitigated Appellant’s
                 punishment.

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15




                                                      iii
                                      INDEX OF AUTHORITIES

CASES

Cole v. State, 757 S.W.2d 864 (Tex. App.--Texarkana 1988). . . . . . . . . . . . . . .8, 13
Howard v. State, 830 S.W.2d 785 (Tex. App.--San Antonio 1992). . . . . . . . . . 8, 13
Jefferson v. State, 803 S.W.2d 470 (Tex. App.--Dallas 1991). . . . . . . . . . . . . . 8, 13
McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983). . . . . . . . . . . . . . .8, 13


STATUTES AND RULES


TEX. R. APP. 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TEX. R. APP. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v




                                                           iv
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 39.1, Appellant requests oral

argument in this case.




                                       v
                               No. 01-14-00506-CR

                                     In the
                            COURT OF APPEALS
                                    For the
                    FIRST SUPREME JUDICIAL DISTRICT
                                  at Houston
                   ______________________________________

                 On Appeal from the 240th Judicial District Court of
                             Fort Bend County, Texas
                         Cause Number 12-DCR-059402
                  ______________________________________

                 DANIEL DESANTIAGO CARRAZA, Appellant
                                     v.
                      THE STATE OF TEXAS, Appellee
                   _____________________________________

                           APPELLANT’S BRIEF
                   _____________________________________


                          STATEMENT OF THE CASE

      On March 26, 2012, Appellant was indicted for the felony offense of

aggravated robbery.    (CR: 13).    On December 9, 2013, Appellant entered into a

plea agreement in which he pleaded guilty to the offense alleged in the indictment

and pled “open” to the trial court for punishment after a pre-sentence investigation

was conducted.     (CR: 60-64).    After a hearing, on May 29, 2014, the trial court

assessed Appellant’s punishment at confinement in the Texas Department of

Criminal Justice-Institutional Corrections Division for sixty years.   (CR: 178-79).

                                          1
Appellant timely filed Notice of Appeal on June 18, 2014.             (CR: 182).   This

appeal results.

                             STATEMENT OF FACTS

        At Appellant’s punishment hearing, James Thompson with the Rosenberg

Police Department testified that on January 18, 2012, he responded to a call of a

burning vehicle at approximately 3:30 a.m. (RR1: 10-11).          When he arrived, he

assisted with security and then heard gunshots nearby.         (RR1: 12).   Thompson

then observed a gray Ford F150 pickup truck leaving the location.           (RR1: 13).

Thompson followed the vehicle until it stopped in front of Appellant’s stepfather’s

home.    (RR1: 15).     Thompson initiated a traffic stop and spoke with the driver,

Appellant, who was compliant.          (RR1: 20).    Thompson ordered the passenger

out of the vehicle and commanded Appellant and the passenger to lie face-down on

the ground.       (RR1: 24-26).     Appellant then asked Thompson to shoot and kill

him (Appellant).      (RR1: 27, 39).      Specifically, Appellant said he did not care

about dying and asked Thompson “to blast him.”           (RR1: 34).   At one point, the

passenger got up and fled.        (RR1: 26).   Because he had a “second subject now to

deal with,” Thompson shot Appellant with his taser gun.               (RR1: 36).    On

cross-examination, Thompson acknowledged that he never found a weapon on

Appellant and that the passenger was the one who had previously fired shots near


                                               2
the location of the burning vehicle.   (RR1: 40).

       Nelson Escobar testified that in the early morning hours of January 19, 2012,

he was working for an Academy retail store and was cleaning the parking lot.

(RR1: 47).    An F150 pickup truck pulled up next to him and the passenger

pointed a gun at him and demanded money.         (RR1: 48-49).    Escobar did not give

the passenger money but handed over his car keys.       (RR1: 49).    Escobar said the

driver was giving orders, telling the passenger to “shoot him. Shoot him.”      (RR1:

50).   The passenger shot at Escobar three or four times, but Escobar did not get

hit.   (RR1: 51).     On cross-examination, Escobar admitted that he never saw the

passenger and that his interaction was only with the passenger.      (RR1: 54-55).

       Masario Garcia testified that at 3:00 a.m. on January 19, 2012, he was on his

way to work and stopped at an intersection in the Richmond/Rosenberg area.

(RR1: 57-58).       A Ford F150 was also approaching the intersection when Garcia

saw the passenger get out of the vehicle.       (RR1: 60).   Garcia saw the passenger

had a gun so Garcia sped off.      (RR1: 60).     The passenger then shot at Garcia’s

vehicle.   (RR1: 60).     Garcia called 911 and the pickup truck started following

him.    (RR1: 62).     The truck passed him again and the passenger fired two or

three more shots.     (RR1: 63).




                                          3
      Kevin Montfort of the Rosenberg Police Department testified that he took a

statement from Appellant in which Appellant acknowledged his involvement in the

events of the early morning hours of January 19, 2012.       (RR1: 80).   Appellant

indicated that the passenger, Damion Gentry, stated that he wanted to scare

Escobar.   (RR1: 81).    Appellant also explained that while he participated in

setting fire to a vehicle on January 19, 2012, his understanding was that the vehicle

belonged to Gentry.     (RR1: 84).   Monfort stated that Appellant was under the

influence of Xanax at the time the offenses in this case occurred and that Appellant

was distraught due to the recent death of a “very close dear friend.”     (RR1: 93).

On cross-examination, Monfort stated that he did not interview Appellant until

twelve hours after his arrest because Appellant was clearly impaired.         (RR1:

103-04).   Monfort agreed that Appellant was under the influence of both Xanax

and alcohol on the night of the offenses.     (RR1: 104).    In fact, Appellant had

been drinking for several days since the death of his friend on January 16, 2012.

(RR1: 104).   Montford related that Appellant told him he blamed himself for his

friend’s death and that he wanted the police officer to kill him because he could not

stand what happened to his friend.   (RR1: 105).

      Brandi Echols, the pre-sentence investigation writer, testified that she

interviewed Appellant regarding the offenses that occurred on January 18, 2012,


                                         4
and January 19, 2012, but he could not recall the events of those dates because he

was under the influence of Xanax, marijuana, and alcohol on those dates.         (RR2:

12-13).   Echols also reviewed Appellant’s mental health history including records

from the Texana Mental Health Mental Retardation Center which reflected that

Appellant had been diagnosed with antisocial personality disorder, bipolar

disorder, and intermittent explosive disorder.    (RR2: 18).    In addition, Appellant

had attempted suicide and had behavioral, emotional, and social issues all through

his childhood.   (RR2: 19).

       Will Trevino testified that he is Appellant’s stepfather and was also a youth

minister for Power and Faith Worship Center.       (RR2: 33).     Trevino testified that

Appellant’s father walked out on him when Appellant was a year and a half old.

(RR2: 33).   Appellant was a special education student because he was classified

as a slow learner.    (RR2: 34).    Appellant’s first stepfather was very abusive

which let to a sad and depressing childhood.         (RR2: 34).     In fact, Appellant

attempted suicide at the age of eleven because of his stepfather’s abuse.        (RR2:

35).   After his suicide attempt, Appellant was sent to a center for three years.

(RR2: 35).   Despite his behavioral problems, Appellant was very respectful to his

mother and Junior.    (RR2: 37).   Trevino explained that Appellant has two small

daughters who miss their father very much.       (RR2: 40).    In addition, Trevino has


                                         5
spoken with Appellant many times and Appellant is very remorseful for his

conduct.    (RR2: 40).   Prior to these offenses, Appellant had only been convicted

of one misdemeanor offense for possession of marijuana.          (RR2: 41).    Trevino

informed the Court that on January 16, 2012, Appellant’s friend Edgar Franco was

killed in a car accident and that afterward, Appellant fell into a deep depression

which led to excessive alcohol consumption.         (RR2: 42).   Trevino related that

since January 19, 2012, Appellant has changed and has begun reading the bible.

(RR2: 43-44).     Appellant has expressed a great desire to work, care for his

children, and work on his mental health and addiction issues.     (RR2: 44).

      Appellant testified that his daughters are two and five years old.        (RR2:

76-77).    Appellant informed the Court that he had never before been convicted of

a felony and his only criminal history was a misdemeanor conviction for

possession of marijuana.     (RR2: 77).    Appellant related that he had emotional

problems during his childhood because of his abusive stepfather and that he had

learning difficulties as well.    (RR2: 78).   The abuse led to his suicide attempt at

commitment at the Dubnoff Center.          (RR2: 79).    After his release from the

Center, Appellant began using drugs, which he mixed with his prescription

medications.    (RR2: 82).       Appellant related that Franco was like a younger

brother to him and January 16, 2012, was Franco’s birthday.       (RR2: 83).    When


                                           6
it got late, Appellant suggested Franco go home and he left.        (RR2: 83).   Franco

was killed on the way home.          (RR2: 83).   Appellant began drinking heavily after

Franco’s funeral.       (RR2: 84).     He also smoked marijuana and ingested Xanax.

(RR2: 84).       Appellant informed the Court that he does not remember anything

from January 19, 2012, but that he feels “bad” that people were hurt.         (RR2: 86,

90). Appellant stated that had he been in his “right state of mind,” the events of

January 19, 2012 would not have happened.                   (RR2: 90).     Since being

incarcerated, Appellant formed a relationship with God and began reading the

bible.     (RR2: 87).      Appellant also began planning for his and his daughters’

futures.      (RR2: 87).    Specifically, Appellant had job prospects, a place to live,

and a supportive family to help him.       (RR2: 88).

                                 ISSUES PRESENTED

         1.     Appellant suffered a Due Process Violation when the trial court
                refused to consider the entire range of punishment and refused to
                consider relevant evidence that mitigated Appellant’s punishment.

                           SUMMARY OF THE ARGUMENT

         Appellant’s Appellant suffered a Due Process Violation when the trial court

refused to consider the entire range of punishment and refused to consider relevant

evidence that mitigated Appellant’s punishment.




                                              7
                        ARGUMENT & AUTHORITIES

      I.      Appellant suffered a Due Process Violation when the trial
              court refused to consider the entire range of punishment and
              refused to consider relevant evidence that mitigated
              Appellant’s punishment.

      Appellant suffered a Due Process violation when the trial court expressed its

opinion that it did not need to hear evidence regarding the offenses in this case.

The Court made this statement after hearing from only one witness and before

Appellant had a chance to present mitigating evidence, including overwhelming

evidence that Appellant did not remember the events in question and acted largely

as a party.   The Court also refused to consider evidence of Appellant’s mental

health history, his abusive childhood, and the recent death of a very close friend

which affected his mental state prior to the commission of the offenses.

      Due process requires a neutral and detached hearing body or officer. Gagnon

v. Scarpelli, 411 U.S. 778, 786 (1973). “It is a denial of due process for the court

to arbitrarily refuse to consider the entire range of punishment for an offense or to

refuse to consider the evidence and impose a predetermined punishment.”

Howard v. State, 830 S.W.2d 785, 787 (Tex. App.--San Antonio 1992), citing

Jefferson v. State, 803 S.W.2d 470, 471 (Tex. App.--Dallas 1991); Cole v. State,

757 S.W.2d 864, 865 (Tex. App.--Texarkana 1988); McClenan v. State, 661

S.W.2d 108, 110 (Tex. Crim. App. 1983).      Absent a clear showing of bias, a trial

                                         8
court’s actions will be presumed to have been correct. Thompson v. State, 641

S.W.2d 920, 921 (Tex. Crim. App. 1982).

      After the first witness testified, the judge expressed concern over the amount

of testimony he was going to hear.      (RR1: 40-41).     The following exchange

occurred:

            THE COURT:                “I’m not going to spend an hour repeating

                                      all the testimony that was heard in the earlier

                                      case.

            THE PROSECUTOR:           Judge, that’s not the intent. But as I said

                                      earlier, we do have to establish a record

                                      should Mr. Desantiago-Caraza choose to

                                      appeal --

            THE COURT:                Well, here's the -- have we executed plea

                                      papers?

            THE PROSECUTOR:           He has, Judge, as to the guilt/innocence.

            THE COURT:                Okay.

            THE PROSECUTOR:           I guess what I'm saying, Judge, I think that

                                      certainly if there is other evidence that

                                      supports this defendant's involvement, and I


                                         9
                  think what -- and Mr. Hecker can stop me if

                  I'm wrong, which is I believe that certainly

                  while he has pled and in that regard the State

                  of Texas doesn't distinguish readily between

                  parties and principles. I believe that that's a

                  very significant core of events.

THE COURT:        I just -- my real concern is should Mr.

                  Hecker present and examine the witnesses. I

                  presume he wants to refute some of what's

                  in the PSI report.

THE PROSECUTOR:   He might, Judge, but the burden still rests

                  upon the State.

THE COURT:        Has the State met its burden by – by the --

                  are you satisfied that you've got accurate,

                  adequate plea papers that were drawn in

                  these matters?

THE PROSECUTOR:   Yes, we are satisfied with those. Yes, sir, we

                  are.

THE COURT:        So what more do you need?      (RR1: 41-42).


                    10
             THE PROSECUTOR:   But we certainly want to have enough to

                               show if they raise --if they're raising, which

                               I believe that they will, that he's jut a party,

                               that his involvement is minimal, and,

                               therefore, we think that he should get a

                               lenient sentence, I think that we would be

                               entitled to offer evidence that shows that his

                               participation was more than just minimal.

                               (RR1: 44).

             THE COURT:        Okay. How many witnesses are we going to

                               have?

             THE PROSECUTOR:   Judge, I could probably cut out two more.

                               So I would say seven or eight.

             THE COURT:        So you're going to have eight hours worth of

                               testimony to back up a guilty plea?

             THE PROSECUTOR:   No, Judge.

             THE COURT:        You've killed an hour already.

(RR1: 44).




                                 11
      In this case, the trial court indicated it was not interested in any of the facts

of the case to determine Appellant’s punishment.          In addition, the Court, before

even hearing mitigation evidence from Appellant, indicated it needed nothing else

to consider the punishment in this case.        In fact, after the Court heard mitigating

evidence, including evidence that Appellant did not remember the events that

occurred during the commission of the offense, his mental health history, his

abusive childhood, the recent death of a very close friend that affected his mental

state, and that he acted only as a party, the Court assessed the maximum sentence.

The Court also failed to consider that Appellant is the father of two children and

has a supportive family and job waiting for him.

      Even the prosecutor picked up on the trial court’s unwillingness to hear the

evidence in this case before determining punishment, and her foreshadowing that

an unfairly harsh sentence was about to be imposed; when she had to point out to

the Court that although Appellant had pleaded guilty, she was trying to build a

record in the event Appellant argued that his sentence should have been more

lenient because he only acted as a party.       In fact, the prosecutor only asked for a

sentence of fifty years, but the Court imposed a sentence of sixty years in this case,

and a maximum sentence in Appellant’s companion cases.             Ironically, it appears

that the Court pre-determined its sentence before listening to either the State or


                                           12
Appellant.

      It is implausible to believe that the trial court would assess a sentence of

sixty years when Appellant had no felony criminal history and expressed true

remorse for his participation in the alleged offense.      This is especially true

considering Appellant suffered an abusive childhood, does not remember the

events of the night in question, and acted only as a party.      Clearly, the State

pre-determined Appellant’s punishment and failed to consider any mitigating

evidence.    This is a well-settled violation of Appellant’s due process rights. See

Howard, 830 S.W.2d at 787; Jefferson, 803 S.W.2d at 471; Cole, 757 S.W.2d at

865; McClenan, 661 S.W.2d at 110.         Accordingly, Appellant’s point of error

should be sustained and his sentence should be reversed.




                                         13
                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this Court reverse the sentence in this case and order a new hearing on

punishment.

                                             Respectfully submitted,

                                             __/s/ Michael W. Elliott___________
                                             MICHAEL W. ELLIOTT
                                             State Bar Number 06546540
                                             905 Front Street
                                             Richmond, Texas 77469
                                             (832) 496-5000
                                             (281) 238-3141 (fax)
                                             Mike@Elliottslaw.com


                         CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the

foregoing Appellant’s Brief has been mailed this, the 20th day of January, 2015, to

the Fort Bend County District Attorney’s Office, 301 Jackson, Richmond, Texas

77469.

                                      ____/s/ Michael W. Elliott______________
                                      Michael W. Elliott




                                        14
                    CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

3,576 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                    _____/s/ Michael W. Elliott_____________
                                    Michael W. Elliott




                                      15
