                                                                            ACCEPTED
                                                                       06-14-00217-CR
                                                             SIXTH COURT OF APPEALS
                                                                  TEXARKANA, TEXAS
                                                                  2/26/2015 9:43:45 AM
                                                                       DEBBIE AUTREY
                                                                                CLERK



               NO.06-14-00217-CR
                                                       FILED IN
                                                6th COURT OF APPEALS
                                                  TEXARKANA, TEXAS
           1N THE COURT OF APPEALS
                                                2/26/2015 9:43:45 AM
                   FOR THE                          DEBBIE AUTREY
                                                        Clerk
       SIXTH JUDICIAL DISTRICT OF TEXAS



             PHYLLIS GWEN PRUITT

                   Appellant

                       v.
                STATE OF TEXAS

                    Appellee



APPEALED FROM THE 124'h JUDICIAL DISTRICT COURT

           OF GREGG COUNTY, TEXAS
            TRIAL COURT NO. 44139-B




              BRIEF OF APPELLANT




                                   KYLE DANSBY

                                   ATTORNEY AT LAW

                                   P.O. BOX 1914

                                   MARSHALL, TX 75671

                                   (903) 738-6162
                                   (888) 410-1583 (FAX)

                                   kdansbylaw@gmail.com

                                   STATE BARNO: 24059180

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                                          TABLE OF CONTENTS

                                                                                                                   Page

TABLE OF CONTENTS ..................................................................................... 2
INDEX OF AUTHORITIES ................................................................................. 3
IDENTIFICATION OF PARTIES .......................................................................... 3

STATEMENT OF THE CASE ................................................................................... 5
ISSUE PRESENTED               .......................................................................................... 5

         Appellant's sentence is not grossly disproportional to the crime committed in violation of
the Eighth Amendment to the United States Constitution. This is assuming arguendo that trial
counsel preserved this argument for appeal, as trial counsel did not object to the sentence and did
not file a motion for new trial or motion to arrest judgment.


STATEMENT OF FACTS ................................................................................... 5
SUMMARY OF THE ARGUMENT.. ..................................................................... 6
PRESERVATION OF ERROR .............................................................................. 7

ARGUMENT ................................................................................................... 8
PRAyER ............................................................................................................ 9
CERTIFICATE OF COMPLIANCE ...................................................................... 10
CERTIFICATE OF SERVICE ............................................................................. 10




                                                                                                                         2
                                      INDEX OF AUTHORITIES


CASES:
Harmelin v. Michigan, 501 U. S. 957 (1991) ............................................................... 9
Solemv. Helm, 463 U.S. 277, 291-92 (1983) .............................................................. 9
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied ....................................... 9
Currie v. State, 516 S. W.2d 684 (Tex. Crim. App. 1974) ................................................ 7
High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978) ............................................ 7
Jordan v. State, 495 S.W.2d 949,952 (Tex. Crim. App. 1973) ......................................... 8
Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet) ........................... 7
Escochea v. State, 139 S.W.3d 67, 80 (Tex. App.-Corpus Christi 2004, no pet.) ..................... 8
Jacoby v. State, 227 S.W.3d 128,130 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) ............. 7
Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.-Texarkana 2006, no pe!.) ......................... 9
Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.-Corpus Christi 2005, pet. ref'd) .................. 8
Wilson v. State, 955 S.W.2d 693 (Tex. App. - Waco 1997, order), disp. on merits, 3 S.W.3d 223
        (Tex. App. - Waco, 1999, pet. ref d) ............................................................... 7

Winchester v. State, 246 S.W.3d 386,388 (Tex. App.-Amarillo 2008, pet. ref'd) .................... 9


STATUTES:
TEX. HEALTH & SAFETY CODE ANN. §481.115(a) (West 2013) ................................. 8

TEX. HEALTH & SAFETY CODE ANN. §481.115 (b) (West 2013) ................................ 8

TEX. PEN. CODE ANN. § 12.34(a) (West 2013) ......................................................... 8

TEX. PEN. CODE ANN. § 12.35(a) (West 2013) ......................................................... 8

TEX. R. APP. P. 33.l(a)(I) .................................................................................. 7



IDENTIFICATION OF PARTIES
Phyllis Gwen PlUitt: Appellant
        Gregg County Jail


                                                                                                              3
       101 E. Methvin, Suite 635
       Longview, TX 75601
Kyle Dansby: Trial counsel for Appellant
       P.O. Box 1914
       Marshall, TX 75671
       kdansbylaw@gmail.com
Kyle Dansby: Appellate counsel for Appellant
       P.O. Box 1914
       Marshall, TX 75671
       kdansbylaw@gmail.com
Chris Botto: Assistant District Attorney at open plea & sentencing
       Gregg County District Attorney's Office
       101 E. Methvin, Suite 333
       Longview, TX 75601
       chris.botto@co.gregg.tx.us
Zan Brown: Assistant District Attorney on appeal
       Gregg County District Attorney's Office
       101 E. Methvin, Suite 333
       Longview, TX 75601
       zan.brown@co.gregg.tx.us
Alfonso Charles: trial judge, 124th District Court, Gregg COlmty, Texas
       101 E. Methvin, Suite 447
       Longview, TX 75601
       Terri.Shepherd@co.gregg.tx.us (court coordinator)




                                                                          4
                                    STATEMENT OF THE CASE
Phyllis Gwen Pruitt (hereinafter referred to as "Appellant") entered an open plea of guilty to two

COWltS of Possession of a Controlled Substance in the I 24th District Court on November 24,

2014. C.R. 18 (43975-B);C.R, 8 (44139-B); R.R. Vol. 1,5. After receiving all exhibits into

evidence, and after hearing all the evidence, the trial court sentenced Appellant to 7 years in the

penitentiary and 15 months state jail, sentences to nUl concurrently. R.R. Vol. 1,41. Appellant

filed an appeal of this sentence.


                                       ISSUE PRESENTED


Appellant's sentence is not grossly disproportional to the crime committed in violation of the

Eighth Amendment to the United States Constitution. This is assuming arguendo that trial

counsel preserved this argument for appeal, as trial counsel did not object to the sentence and did

not file a motion for new trial or motion to arrest judgment.


                                     STATEMENT OF FACTS


Appellant was first indicted for Possession of a Controlled Substance >= 1 gram < 4 grams in

cause number 43975-B. C.R. 4 (43975-B). The offense was alleged to have occurred on January

20, 2014. Id. Appellant was subsequently indicted for Possession of a Controlled Substance less

than one gram for an offense alleged to have occurred on JWle 19, 2014. C.R. 4 (44139-B).

Appellant pled guilty to both indictments in an open plea to the trial court on November 27,

2014. R.R. Vol. 1,5. Appellant testified. She testified she was 56 years old and primarily

cleaned houses for a living. R.R. Vol. I, 14. Appellant testified she had two felony convictions.

Id. at 14-5. The first felony conviction was in 1994 from the Louisiana; Appellant received and

successfully completed probation. Id. The second felony conviction was in 2005 from Sarasota



                                                                                                      5
County, Florida for the offense of possession with intent to sell; Appellant received probation

and that probation was ultimately revoked. Id. at 15. Appellant testified that she hoped the trial

court would place her on probation with drug rehabilitation as a condition of probation. Id. at 20.

Appellant testified that her drug use could stem from being molested as a child. Id. at 22-3.

Appellant stated that she felt probation with drug rehabilitation would better assist her than being

sentenced to the penitentiary. Id. at 25.


On cross examination, Appellant testified that in the first offense she was caught in a motel room

with 3.4-3.5 grams of methamphetamine. Id. at 25-6. She further admitted that the drugs were

located by police in her bra. Id. at 27. She testified that, in both instances, she was in the wrong

place at the wrong time. Id. at 28. She stated she does not use drugs intravenously. Id. at 29.

When she was asked why, in one of the cases, her credit card was found near drugs, used

syringes, and used spoons, Appellmlt denied that any of the materials, except her credit card,

were hers. Id. She later denied purchasing the 3.5 grams of methamphetamine, and testified the

drugs were handed to her. Id. at 31. Appellant also later denied selling drugs. Id. at 32.


The trial court noted that he did not think Appellmlt was being fully truthful in her testimony. Id.

at 41. He then sentenced Appellant to 7 years and 15 months state jail, sentences to nm

concurrently. Id.


                              SUMMARY OF THE ARGUMENT


Appellate counsel can locate no arguable grounds for appeal, and as a result, files the Anders

brief with a corresponding Appellant's Counsel's Motion to Withdraw. A copy of the Brief in

SuppOli of Motion to WithdTaw and the corresponding motion has been forwarded to Appellant

with a letter explaining what has been done. See Exhibit A to Appellant's Counsel's Motion to



                                                                                                       6
Withdraw. Appellant has been advised she has thirty days to file a pro se response or a motion

requesting an extension of time in which to file the response, pursuant to Wilson v. State, 955

S.W.2d 693 (Tex. App. - Waco 1997, order), disp. on merits, 3 S.W.3d 223 (Tex. App. - Waco,

1999, pet. ref d). See Appellant's Counsel's Motion to Withdraw.


Appellate counsel has thoroughly read and reviewed the entire appellate record in search of any

arguable grounds of error to raise that would support either a reversal of Appellant's sentence or

some other form of relief. After reviewing the record and researching the potential grounds for

appeal, appellate counsel is unable to find any error for which he, in good faith, can mge a

reversal of her sentence or any other relief.


Appellate counsel is aware that he has a duty to advance all arguable grounds of error that would

Appellant a reversal of sentence or any other relief. Counsel must demonstrate why there are no

arguable grounds to be advanced. High v. State, 573 S.W.2d 807,812 (Tex. Crim. App. 1978);

Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974). Therefore, cOIDlsel presents to the

Comt the following maj or issue reviewed:


                                 PRESERVATION OF ERROR


Trial counsel appears to have waived this issue for appeal. Trial counsel did not object to the

sentence when it was pronounced, and trial counsel did not file a motion for new trial or arrest of

judgment. Failure to do either oftllese results in a waiver. See Tex.R.App.P. 33.1 (a)(l); Jacoby

v. State, 227 S.W.3d 128, 130 (Tex. App.-Houston [1st Dist.] 2006, pet. refd); Castaneda v.

State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet).




                                                                                                     7
                                           ARGUMENT


Appellant's sentence is not grossly disproportional to the crime committed. While the sentences

are on the higher end of the punishment range, the sentences do not constitute cruel and unusual

punislullent lmder the Eighth Amendment. This assumes arguendo that trial counsel properly

preserved this issue for appeal, as trial counsel did not object to the sentence nor did he file a

motion for new trial or motion to arrest judgment.


As long as the sentence falls within the punishment range of the statute, then courts have long

held that the punishment is not grossly disproportional. See Jordan v. State, 495 S.W.2d 949,

952 (Tex. Crim. App. 1973); Trevino v. State, 174 S.W.3d 925,928 (Tex. App.-Corpus Christi

2005, pet. reEd); see also Escochea v. State, 139 S.W.3d 67,80 (Tex. App.-Corpus Christi 2004,

no pet.). Appellant pled guilty to two indictments for Possession of a Controlled Substance. The

first indictment alleged possession of less tban four grams, but more than one gram. C.R. 4

(43975-B). This offense is a third degree felony. TEX HEALTH & SAFETY CODE ANN.

§481.115(c) (West 2013). A third degree felony is punishable by no less than two years and no

more than 10 years in a penitentiary. TEX PEN. CODE ANN. §12.34(a). For this charge,

Appellant was sentenced to seven years in the penitentiary. R.R. Vol. 1,41. The second

indictment alleged possession ofless than one gram. C.R. 4 (44139-B). This offense is a state

jail felony. TEX. HEALTH & SAFETY CODE ANN. §481.115(b) (West 2013). A state jail

felony is punishable by no less than 180 days and no more than two years in a state jail facility.

TEX PEN. CODE ANN. § 12.35(a). For this chm'ge, Appellant was sentenced to fifteen months

in a state jail facility. R.R. Vol. 1,41. These sentences were ordered to run concurrently. ld.


Even though a sentence falls within the statutory punishment range, appellate comis must

detel'lnine whether the sentence is grossly dispropoliional under the Appellant's federal

                                                                                                     8
constitutional rights. Winchester v. State, 246 S.W.3d 386,388 (Tex. App.-Amarillo 2008, pet.

ref'd); Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.-Texarkana 2006, no pet.). First, courts

look at the gravity of the offense compared to the severity of the sentence. Solem v. Helm, 463

U.S. 277, 291-92 (1983); McGruder v. Puckett, 954 F.2d 313,316 (5th Cir.), cert. denied.

Appellate courts then consider sentences for similar crimes in the same jurisdiction, and

sentences for the same crime in other jurisdictions. See Solem, 463 U.S. at 292. In light of

Harmelin v. Michigan, courts do not address the second and third issue unless the initial

comparison of the gravity and severity create an inference that the sentence is grossly

disproportional. Harmelin v. Michigan, 501 U.S. 957 (1991); McGruder, 954 F.2d at 316.


The initial comparison does create an inference that the sentence is grossly disproportional.

Based on the testimony of Appellant, her criminal history, and the fact that she committed a

second felony while out of bond for the first felony, there is no inference that the sentence is

grossly disproportional. Since no inference is created, the other two elements are not considered,

and no evidence was placed in the record for the Court to review sentences for the same crime in

this jurisdiction or any other jurisdiction.


                                                PRAYER

Wherefore, premises considered, appellate counsel respectfully requests that Appellant's

Counsel's Motion to Withdraw as Counsel be granted or for such other and further relief to

which Appellant may be entitled.


                                       Respectf'ully submitted,
                                               Kyle Dansby
                                           Attorney at Law
                                                P.O. 1914


                                                                                                   9
                                     Marshall. TX 75671
                                        (903) 738-6162
                                     (888) 410-1583 (fax)
                                   kdansbylaw@gmail.com


                                       /s/ Kyle Dansby
                                         Kyle Dansby
                                   State Bar No: 24059180
                                    Attorney for Appellant




                            CERTIFICATE OF COMPLIANCE


I certify that this brief contains 1,562 words according to the computer program used to prepare
                                           this document.
                                                                                /s/ Kyle Dansby
                                                                                   Kyle Dansby




                               CERTIFICATE OF SERVICE


A copy of this brief was sent via email to Zan Brown, attorney for Appellee, on the 24th day of
                                        February, 2015.
                                                                                 /s/ Kyle Dansby
                                                                                    Kyle Dansby




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