                                                                         ACCEPTED
                                                                     12-15-00161-CR
                                                        TWELFTH COURT OF APPEALS
                                                                      TYLER, TEXAS
                                                               10/30/2015 1:24:35 PM
                                                                           Pam Estes
                                                                              CLERK




                                                     FILED IN
                                              12th COURT OF APPEALS
             CASE NO. 12-15-00161-CR               TYLER, TEXAS
                                              10/30/2015 1:24:35 PM
         IN THE TWELFTH COURT OF APPEALS             PAM ESTES
                   TYLER, TEXAS                        Clerk


           CHRISTI LYNN COKER, Appellant

                          Vs.

           THE STATE OF TEXAS, Appellee

                 On Appeal from the

             369TH Judicial District Court,
               Anderson County, Texas

               (Trial Court No. 31611)

           Honorable BASCOM BENTLEY, III

                BRIEF OF APPELLANT

                 MARK W. CARGILL
                  TBC# 00787201
                     701 N. Elm
               Palestine, Texas 75801
                   903/729-8011

             COUNSEL FOR APPELLANT

             ORAL ARGUMENT WAIVED




1|Page
                                   PARTIES

CHRISTI LYNN COKER, APPELLANT

Mark W. Cargill
Attorney for Defendant/Appellant
701 N. Elm
Palestine, Texas 75801

Allison Mitchell
District Attorney
500 N. Church Street
Palestine, Texas 75801




2|Page
                              TABLE OF CONTENTS
                                                                 Page
Table of Contents…………………………………………………………………………………………..            3

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

Statement of the Case…………………………………………………………………………………...          5

Point of Error Number One………………………………………………………………………             6

Statement of Facts………………………………………………………………………………………..            6

Point of Error Number One Restated…………………………………………………………...      6

Summary of Argument (Point of Error Number One)………………………………...   6

Argument ……………………………………………….……………………………………………………..               6, 7, 8, 9

Prayer……………………………………………………………………………………………………………                  9

Certificate of Service…………………………………………………………………………………...         10




3|Page
                                    INDEX OF AUTHORITIES

CONSTITUTIONS

        U.S. CONST. amend VIII……………………………………………………………………………..                         6
        TEX. CONST. art. I sec. 13 ……………………………………………………………………….                       6

STATUTES

        Tex. Pen. Code Ann. Sec. 12.34……………………………………………………………….                       8

CASES

Federal

        Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,
        115 L. Ed. 2d 836 (1991)                                                      7

        McGruder v. Puckett, 954 F. 2d 313 (5th Cir.), cert. denied, 506 U.S. 849,
        113 S. Ct. 146, 121 L. Ed. 2d 98 (1992)                                       7

        Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)         7

State

        Davis v. State, 905 S.W. 2d 664 (Tex. App – Texarkana 1995, pet. ref’d)       7

        Dunn vs. State, 997 S.W. 2d 885 (Tex. App. – Waco 1999, pet. ref’d)           7

        Hernandez v. State, 10 S. W. 3d 812 (Tex. App. – Beaumont 2000, pet. ref’d)   7

        Hicks v. State, 15 S.W. 3d 626 (Tex. App. – Houston [14th dist. ] 2000,
        pet ref’d)                                                                    7

        Jackson v. State, 989 S.W. 2d 842 (Tex. App. – Texarkana 1999, no pet.)       8

        Lackey v. State, 881 S.W. 2d 418 (Tex. App. – Dallas 1994, pet ref’d)         7

        Lilly v. State, 365 S.W.3d 321 (Ct of Crim Appeals, April 18, 2012)           8,9

        Matthews v. State, 918 S.W. 2d 666 (Tex. App. – Beaumont 1996, pet ref’d)     7

        Puga v. State, 916 S.W. 2d 547 (Tex. App. – San Antonio 1996, no pet.)        7

        Simmons v. State, 994 S.W. 2d 11 (Tex. App. – Tyler 1996, pet. ref’d)         7

        Sulivan v. State, 975 S.W.2d 755 (Tex. App. – Corpus Christi 1998, no pet.)   7




4|Page
                              CASE NO. 12-15-00161-CR

                         IN THE TWELFTH COURT OF APPEALS
                                   TYLER, TEXAS

                           CHRISTI LYNN COKER, Appellant

                                          Vs.

                            THE STATE OF TEXAS, Appellee

                                 On Appeal from the

                             369TH Judicial District Court,
                               Anderson County, Texas

                               (Trial Court No. 31611)

                           Honorable BASCOM BENTLEY, III

                                BRIEF OF APPELLANT

                                  MARK W. CARGILL
                                   TBC# 00787201
                                      701 N. Elm
                                Palestine, Texas 75801
                                    903/729-8011

                              COUNSEL FOR APPELLANT

                              ORAL ARGUMENT WAIVED


TO THE HONORABLE JUDGE OF SAID COURT:

      COMES NOW, CHRISTI LYNN COKER, the Appellant, and files this his Brief of

Appeal in the above-entitled and numbered cause.



                           STATEMENT OF THE CASE

      On September 5, 2014, Defendant, CHRISTI LYNN COKER, was placed on

community supervision for Theft of Property < $1,500.00. The State of Texas filed a

motion to revoke on with 2 or more previous convictions. The Court had a hearing




5|Page
on the motion to revoke on June 3, 2015. Defendant’s probation was revoked and

she was sentenced to 24 months.

                                 ISSUE PRESENTED

                         POINT OF ERROR NUMBER ONE

       The trial court errored in rendering judgment its verdict and sentencing

Appellant to 24 months incarceration because that sentence was grossly

disproportionate when considered in light of other sentences for the same offense

and in light of the facts and circumstances which constituted the offense.

                              STATEMENT OF FACTS


       The court considered all testimony of the revocation hearing of June 3, 2015.


                   POINT OF ERROR NUMBER ONE RESTATED

       The sentence is excessive and is grossly disproportionate to the crime

committed.

                            SUMMARY OF ARGUMENT

       Each defendant is guaranteed under the constitution of punishment free

from cruel and unusual treatment. To sentence a defendant to a sentence that is

disproportionately high violates the prohibition against cruel and unusual

punishment.

                                    ARGUMENT

       Both the United States Constitution and the Texas Constitution prohibit cruel

and unusual punishment. US Const. amend. VIII; Tex. Const. art I sec. 13. Since there

are not any distinctions between the state and federal protections against cruel or


6|Page
unusual punishment, an appeals court should address such claims together. See

Simmons v. State, 944 S.W. 2d 11, 14 (Tex. App. – Tyler 1996, pet. Ref’d) Davis v.

State, 905 S.W.2d 664, 665 (Tex. App. – Texarkana 1995, pet. ref’d).

       It is possible for a sentence to fall within a permitted punishment range and

yet “run afoul of the Eighth Amendment prohibition on cruel and unusual

punishment. “Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d

637 (1983). The Supreme Court revised the question of disproportionate sentences

in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). In

discussing Harmelin, the Fifth Circuit has stated that “disproportionality survives:

Solem does not.” McGruder v. Puckett, 954 F 2d 313, 316 (5th Cir.), cert. denied 506

U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992). Under McGruder, a court must first

determine whether the sentence is “grossly disproportionate to the offense.”

McGruder, 954 F. 2d at 316. Once the court of Appeals finds the sentence grossly

disproportionate, the court then considers the remaining factors of the Solem test

and compares the sentence received to (1) sentences for similar crimes in the same

jurisdiction and (2) sentences for the same crime in other jurisdictions. Several

immediate Texas courts have analyzed proportionality claims in the manner

recommended by the Fifth Circuit in McGruder. See Hicks v. State, 15 S.W. 3d 626

(Tex. App. – Houston {14th Dist. } 2000, pet. ref’d); Hernandez v. State, 10 S.W. 3d

812 (Tex. App. – Beaumont 2000, pet. ref’d); Dunn v. State, 997 S.W. 2d 885 (Tex.

App. – Waco 1999, pet. ref’d) Sullivan v. State, 975 S.W. 2d 755, 757 (Tex. App. –

Corpus Christi 1998, no pet.); Puga v. State, 916 S.W. 2d 547, 549-50 (Tex. App. -




7|Page
San Antonio 1996, no pet.); Matthews v. State, 918 S.W.2d 666, 668-69 (Tex. App. –

Beaumont 1996, pet. ref’d) an Lackey v. State, 881 S.W. 2d 418, 420-421 (Tex. App. –

Dallas 1994, pet ref’d). The Eighth Amendment proscribes grossly disproportionate

sentences, even sentences that fall within the statutory range of punishment.

Jackson v. State, 989 S. W. 2d 842, 845-46 (Tex. App. – Texarkana 1999, no pet).

         Appellant was on community supervision for the felony offense of State Jail

Theft.

         Appellant’s community supervision was revoked but her punishment was

grossly disproportionate to the crime. An individual adjudged guilty of a felony of

this degree shall be punished by imprisonment in the institutional division for any

term of not more than 2 years or less than 6 months and in addition to the

imprisonment, may be assessed a fine not to exceed $10,000.00. Tex. Penal Code.

         The sentence of 2 years incarceration is grossly disproportionate.

         In terms of other State Jail Theft cases, the facts which made up the gist of the

State Jail Theft now before this Court, when considered in conjunction with her

criminal history and the fact she has received community supervision initially, this

Court must conclude that the punishment assessed, the sentence of 2 years

confinement is grossly disproportionate to the offense committed.

         Accordingly, this Court must proceed to the next two steps in the McGruder

analysis: (1) sentences for similar crimes in the same jurisdiction and (2) sentences

for the same crime in other jurisdictions. Appellant is guilty of the offense charged,

but her punishment is excessive. Punishment for the worst possible State Jail Theft

cannot exceed a 2 years sentence. Appellant was sentenced to 2 years. It is clear


8|Page
that other much more serious State Jail Theft convictions resulted in significantly

less harsh sentences than Appellant received.

      Simply stated, the punishment assessed against Appellant, while legally

within the range of punishment available to the Court, exceed what was right and

fair. Twenty four months confinement in prison is not proportionate for the offense

of State Jail Theft in this situation and under these facts and circumstances.

Accordingly, the sentence must not stand. Appellant is entitled to a new punishment

hearing.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable

Court sustain the point of error raised hereinabove, and vacate the commitment to

the Texas Department of Corrections Institutional Division remand the case for a

new sentencing hearing.


                                  Respectfully submitted,

                                  CARGILL & ASSOCIATES


                           BY:    /s/Mark W. Cargill
                                  Mark W. Cargill
                                  SBN: 00787201
                                  701 N. Elm
                                  Palestine, Texas 75801
                                  Telephone: 903/729-8011
                                  Facsimile: 903/729-5112

                                  Attorney for Appellant




9|Page
                              CERTIFICATE OF SERVICE

This is the certify that on October 30, 2015, a true and correct copy of the above and
foregoing document was served on the District Attorney’s Office, Anderson County,
and all other interested parties, by hand delivery, mail, and/or facsimile and regular
mail.


                                     /s/ Mark W. Cargill
                                     Mark W. Cargill

                                     Word Count

On this 30th day of October, 2015, I, Mark W. Cargill, hereby certifies that this brief
has a word count of 1510.


                                     /s/ Mark W. Cargill
                                     Mark W. Cargill




10 | P a g e
