                                                                  ACCEPTED
                                                              02-15-00032-CR
                                                  SECOND COURT OF APPEALS
                                                        FORT WORTH, TEXAS
                                                          5/5/2015 3:00:03 PM
                                                               DEBRA SPISAK
                                                                       CLERK



            NO. 02-15-00032-CR
                                              FILED IN
                                       2nd COURT OF APPEALS
                                        FORT WORTH, TEXAS
    IN THE COURT OF APPEALS            5/5/2015 3:00:03 PM
FOR THE SECOND DISTRICT OF TEXAS            DEBRA SPISAK
                                               Clerk
       FORT WORTH, TEXAS

          ROBERT GONZALES
                    V.

         THE STATE OF TEXAS


   APPEALING THE TRIAL COURT'S JUDGMENT
          IN CAUSE NUMBER 1351979D
      FROM THE 396TH DISTRICT COURT OF
           TARRANT COUNTY, TEXAS
  HON. GEORGE GALLAGHER, PRESIDING JUDGE




      APPELLANT'S BRIEF

          RICHARD A. HENDERSON
       RICHARD A. HENDERSON, P.C.
  100 THROCKMORTON STREET, SUITE 540
         FORT WORTH, TEXAS 76102
                 (817) 332-9602
               (817) 335-3940fax
            State Bar No. 09427100
           richard(Jjahenderson.com
        ATTORNEY FOR APPELLANT


          Oral Argument Requested
                                           TABLE OF CONTENTS
Tableof Contents .......................................................................................................i
List of Interested Parties............................................................................................ii
Indexof Authorities..................................................................................................iii
IssuesPresented ........................................................................................................ i'i
Issue for Review No. 1:
THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL
AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO
EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE
TEXAS DEPARTMENT OF CRIMINAL JUSTICE ............................................. iv
Statementof the Case ................................................................................................ 1
Summary of the Facts of the Case.............................................................................2
Summaryof Argument .............................................................................................. 2
Argumentsand Authorities .......................................................................................3
Issue for Review No. 1: (Restated)
THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL
AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO
EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE
TEXAS DEPARTMENT OF CRIMINAL JUSTICE...............................................3
Prayer......................................................................................................................... '1
Certificateof Compliance ......................................................................................... 5
Certificateof Service ................................................................................................. 6
                      LIST OF INTERESTED PARTIES

Robert Gonzales
TDCJ 1978388
Formby Unit
998 CR AA
Plainview, Texas 79072
Appellant

Ms. Debra Windsor,
Assistant Criminal District Attorney
Post-Conviction
Jim Hudson
Tracey Kapsidelis
Assistant Criminal District Attorneys
District Attorney's Office
401 West Belknap
Fort Worth, Texas 76196-0201
Sharen Wilson,
Criminal District Attorney
Tarrant County, Texas
Attorneys for the State

Abe Factor
6211 Airport Freeway
Fort Worth, Texas 76117
Trial Attorney

Richard A. Henderson
Richard A.Henderson, P.C.
100 Throckmorton Street, Suite 540
Fort Worth, Texas 76102
Attorney for Appellant




                                        11
                                  INDEX OF AUTHORITIES

CASES:

Acosta v. State, 160 S.W.3d 204; (Tex App—Ft. Worth 2005-no pet.) ....................4

Calhoun v. State, 214 S.W.335 (Tex. Crim. App. 1919)..........................................4

Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana 2005)...........................4

Harmelin v. Michigan, 501 U.S. 957 (1991).............................................................4

Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim. App. 1973).................................4
                                 (5th
McGruder v. Puckett, 954 F2d 316      Cir.)
      cert denied 506 U.S. 849 (1992).......................................................................4



Codes:

Texas Code of Criminal Procedure 42.12 3(g) (2) (b).............................................. 3

Constitutions:
8'b Amendment of the United States Constitution.....................................................4
Article1 Section 13 of the Texas Constitution ......................................................... 4
                   ISSUES PRESENTED

                ISSUE FOR REVIEW NO. ONE
    THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED
CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO
EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE
TEXAS DEPARTMENT OF CRIMINAL JUSTICE.




                           iv
                IN THE COURT OF APPEALS FOR THE
                    SECOND DISTRICT OF TEXAS
                          FORT WORTH

ROBERT GONZALES,                           §
      APPELLANT                            §
                                           §
V.                                         §    NO. 02-15-00032-CR
                                           §
THE STATE OF TEXAS,                        §
      APPELLEE

           APPEALED FROM CAUSE NUMBER 13519 79D
             FROM THE 396r DISTRICT COURT OF
                  TARRANT COUNTY, TEXAS
     THE HONORABLE, GEORGE GALLAGHER, JUDGE PRESIDING

TO THE HONORABLE COURT OF APPEALS:

                       STATEMENT OF THE CASE

     This is an appeal (CR 54-55) from an open plea of guilty to the trial court

(CR 38-46) for arson with intent to damage a habitation. (CR 49-51). A pre-

sentence investigation was ordered by the court. (CR 47-48). A punishment

hearing was held on January 26, 2015 (RR volume 2). The trial court sentenced

Appellant to eighteen (18) years in the Institutional Division of the Texas

Department of Criminal Justice with a deadly weapon finding, specifically, a

combustible or flammable liquid. (CR 49-51 RR2:100).



                                       1
                SUMMARY OF THE FACTS OF THE CASE
      On December 3, 2013 at approximately 6:15 a.m., Shane Bradshaw and

companion, Akita McGowan were asleep at their residence at 3437 Nies Street in

Fort Worth, Texas. Akita was awakened by hearing a banging on the Plexiglas

windows of the bedroom and by the head board of their bed being pushed from the

window from the outside. Akita then heard the spilling of a liquid and smelled

gasoline. As she was trying to awaken Shane, the bedroom became engulfed in

flames. They escaped uninjured but most of the house was burned severely and

most of their personal property was damaged or destroyed. Akita owned three

cats, two cats escaped and one died of smoke inhalation. (RR2: 41-51).

      Appellant was observed fleeing the scene by surveillance camera from the

home. Police and fire department investigators searched the home of Appellant

who lived next door. Gasoline was discovered on his clothes. Appellant admitted

the offense and pleaded guilty to it. (CR- PSI 2-5).

                          SUMMARY OF ARGUMENT

      It was an abuse of discretion and the punishment of eighteen (18) years on

the arson with intent to damage a habitation charge constitutes cruel and unusual

punishment inflicted on Appellant by the trial court.



                                             2
                        ARGUMENTS AND AUTHORITIES

                 ISSUE FOR REVIEW NO. ONE (RESTATED)

    THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED
CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO
EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE
TESAS DEPARTMENT OF CRIMINAL JUSTICE.
       A Pre-Sentence Investigation (PSI) was prepared. The PSI states

Appellant's age to be thirty-four (34). The sentence is also an aggravated sentence

meaning Appellant will have to serve half of the sentence, nine years, before he is

eligible for parole under Texas Code of Criminal Procedure 42.12 3(g) (2) (b).

       An eighteen (18) year sentence for a person this young (age 34) is severe

and harsh punishment. Appellant believes it is cruel and unusual and

disproportionate even if the punishment is within the punishment range allowed by

law.

       Appellant presented evidence from his family in which it was shown he

accepts responsibility for his crime (RR2: 73-75).

       Raymond Escobar Jr. testified that both Appellant and Appellant's father

work for Escobar's company and that Appellant is a diligent and good worker who

can work on jobs without supervision. (RR2: 83-85).



                                         3
      Appellant believes his punishment of eighteen (18) years is cruel and

unusual and disproportionate and violates both the 8th Amendment of the United

States Constitution and Article 1 Section 13 of the Texas Constitution, Calhoun v.

State, 214 S.W.335 (Tex. Crim. App. 1919); Jordan v. State, 495 S.W.2d 949, 952

(Tex.Crim. App. 1973); Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana

2005); Acosta v. State, 160 S.W.3d 204; (Tex App—Ft. Worth 2005-no pet.);

McGruder v. Puckett, 954 F2d 316 (5th dr.) cert denied 506 U.S. 849 (1992) and

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

      After this court reviews the record and the PSI, Appellant believes that this

court will reverse the trial court and order a new punishment hearing in which a

proportionate and reasonable sentence will be assessed.

                                     PRAYER

      Appellant respectfully requests that the court reverse the trial court and order

a new punishment hearing. Appellant also prays for all such additional or future

relief to which he may be entitled to in law or in equity.




                                           4
                                     Respectfully Submitted,

                                     RICHARD A. HENDERSON, P.C.
                                     Two City Place
                                     100 Throckmorton Street, Suite 540
                                     Fort Worth, Texas 76102
                                     Telephone: (817) 332-9602
                                     Telecopier: (817) 335-3940
                                     richard(rahenderson. coml


                                     reza(yjtt~
                                     RThHARD A. HENDE SON
                                     State Bar No. 09427100
                                     ATTORNEY FOR APPELLANT


                     CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of TEx.R.APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,317 words,

excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the

word-count feature of Microsoft Office Word 2010, the computer soft7vare used to

prepare the document.


                                                    A. Henderson



                                        5
                        CERTIFICATE OF SERVICE

      A true copy of the Appellant's Brief has been electronically served on

opposing counsel, Ms. Debra Windsor, Assistant Criminal District Attorney, Post-

Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street,

Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr. Robert

Gonzales, TDCJ #1978388, Formby Unit, 998 CR AA, Plainview, Texas 79072

on this the       of May, 2015.



                                     Kicflarcl A. 1-lencierson




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