Opinion issued December 17, 2015




                                   In The

                          Court of Appeals
                                   For The

                       First District of Texas
                        ————————————
                          NO. 01-14-01010-CR
                        ———————————
                   MARCUS D. JACKSON, Appellant
                                     V.
                   THE STATE OF TEXAS, Appellee



                 On Appeal from the 337th District Court
                         Harris County, Texas
                     Trial Court Case No. 1420051



                       CONCURRING OPINION
      “Insanity” has been defined “as doing the same thing over and over again and

expecting different results.”1 The thirty-five-year prison sentence assessed against

appellant, Marcus Jackson, in the instant narcotics case illustrates the point.

      Here, the trial court sentenced appellant to confinement for thirty-five years

for the third-degree felony offense of possession of two cigarettes dipped in

phencyclidine (“PCP”), which together weighed 1.93 grams,2 less than a restaurant-

size packet of sugar. Because appellant had twice been previously convicted of the

felony offense of possession of a controlled substance, the punishment range for the

instant offense is confinement in prison from twenty-five years to life.3

      At the punishment hearing in this case, appellant admitted that he had, from

May 1997 through March 2009, been convicted five times of the offense of

possession of a controlled substance, namely PCP or cocaine, once of the offense of


1
      Although this definition is commonly attributed to Albert Einstein, it appears that it
      actually comes from a novel written by Rita Mae Brown. See THE ULTIMATE
      QUOTABLE EINSTEIN 473–74 (Alice Calaprice ed., 2011 ed. 2011) (crediting Rita
      Mae Brown and noting quote “[m]isattributed to Einstein”).
2
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(8) (classifying phencyclidine
      as controlled substance in penalty group one), 481.115(a), (c) (Vernon 2010)
      (possession of between one and four grams of substance in penalty group one a
      third-degree felony).
3
      See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2015) (“[I]f it is shown on
      the trial of a felony offense other than a state jail felony punishment under Section
      12.35(a) that the defendant has previously been finally convicted of two felony
      offenses, and the second previous felony conviction is for an offense that occurred
      subsequent to the first previous conviction having become final, on conviction the
      defendant shall be punished by imprisonment in the Texas Department of Criminal
      Justice for life, or for any term not more than 99 years or less than 25 years.”).


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delivery of cocaine, and once of the offense of criminal mischief. For these crimes,

he received punishments ranging from thirty days in county jail, for possession of

PCP in 2008, to four years in prison, for possession of PCP in 2009. In all, he

estimated that he had been previously incarcerated by the state for approximately

seven years.

      Prior to the trial court’s sentencing, appellant pleaded:

      As of now I have been found guilty of PCP. I made a mistake. I didn’t
      -- I wasn’t out robbing, stealing, killing no one. I wasn’t nothing. The
      only pain I was inflicting was upon myself. Things happen for a reason.
      Maybe this is for a reason. That’s not for me to decide, but that is
      maybe what I asked for in a sense, because I can only speak on my
      religion and the way I talk to God. I asked Him every time that I knew
      I wasn’t supposed to be smoking again, I was going to stop. I was going
      to stop. But at the time there was pressure upon me.

      I left the house at 18 on bad terms with my father. We had a fight. I
      got out of jail. I moved back home. We were okay. After a while,
      maybe a month or two months after I was released, after my mother
      passed, he kicked me out. I was staying in my car for a month. Never
      resorted to going back to hustling. Never even thought about going to
      take something from anyone else. It’s just not the type of person I am.

      I stand by what I believe is true and what is to be honest. Do I think
      that I should be sent away for 25 years or better for this crime? No. . . .

      ....

      All I’m asking is to be treated fairly. Be treated just.

Appellant then asked the trial court for drug rehabilitation and treatment in lieu of a

harsh punishment, and the following exchanged occurred:




                                          3
      The Court:          . . . So let me ask you this. Obviously you must
                          have a drug problem. Do you admit to that or not?

      [Appellant]:        Yes, I do, Your Honor.

      The Court:          With these three pen trips, seven years in the
                          penitentiary, do they have programs in the penal
                          system, in the penitentiary, that you could take
                          advantage of to talk about your drug use?

      [Appellant]:        The only thing that I have been to was those that are
                          called, I believe, like the program that you’re
                          supposed to go to before release. They are not like
                          drug [programs] --

      The Court:          Did you go to those programs?

      [Appellant]:        Yes, I did.

      The Court:          Did the programs have to do with your use of drugs?

      [Appellant]:        No, it did not.

      The Court:          Addictions and that type of thing?

      [Appellant]:        No, it did not.

      The Court:          So you’re saying in the seven years that you’ve been
                          incarcerated in the penal system in this state, you
                          have never had any sort of information or drug
                          rehab classes or training?

      [Appellant]:        I have never had a drug rehab class, Your Honor.

      Of course, in assessing appellant’s punishment, the trial court may simply

have disbelieved appellant’s testimony and his expressed desire for treatment and

rehabilitation.   Regardless, the trial court’s hands were tied—it had to assess



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appellant’s punishment for possession of the two cigarettes dipped in PCP at

confinement for at least twenty-five years.4 This is the law.5 The Texas Legislature

says so.6 And, no doubt, many people of goodwill believe this should be the law.

      However, many law enforcement officials and policy makers are beginning to

question whether men and women addicted to narcotics like appellant, should, in his

words, “be sent away for 25 years or better” for the simple possession of a miniscule

amount of a controlled substance.

      Houston Police Department Chief Charles McClelland recently expressed

concern, stating:

      The criminal justice system cannot sustain itself under the
      overwhelming numbers [of individuals] we’re putting in the
      system . . . . We are creating generations of young men and women,
      especially young, minority men, who will be unemployed for the rest
      of their lives.

      ....



4
      See id.; see also Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A
      sentence that is outside the maximum or minimum range of punishment is
      unauthorized by law and therefore illegal.”); Farias v. State, 426 S.W.3d 198, 200
      (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (noting sentence void if below
      minimum sentencing range).
5
      See TEX. PENAL CODE ANN. § 12.42(d).
6
      See TEX. CONST. art. III, § 1 (creating Texas Legislature and vesting it with law-
      making power); Wright v. State, 527 S.W.2d 859, 870 (Tex. Crim. App. 1975)
      (noting legislature “affixe[s]” “range of punishment” for “conduct found by the jury
      to have been committed”); State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104
      (Tex. Crim. App. 1973) (“[T]he Legislature is invested with the law-making power
      of the people and may define crimes and prescribe penalties.”).


                                           5
      When we have mandatory sentencing laws for minor crim[inal]
      offenses, drug offenses, for people who are really not the greatest threat
      to community safety, and who are using massive amounts of law
      enforcement resources, there has to be a better way.[7]

      United States Senator John Cornyn, noting that “our prisons are overcrowded”

and our criminal justice system “often perpetuates a vicious cycle in which prisoners

are released unprepared to succeed,”8 has recently introduced “historic bipartisan

legislation to reform our nation’s criminal justice system”—the Sentencing Reform

and Corrections Act of 2015.9 In doing so, he explained that from 1940 through


7
      St. John Barned-Smith, HPD’s Chief Seeks Reform, HOUS. CHRON., Nov. 22, 2015,
      at B1.
8
      John Cornyn & Sheldon Whitehouse, How to Cut Crime and Save Money,
      CNN.COM (Oct. 21, 2015, 4:50 PM), http://www.cnn.com/2015/10/21/opinions
      /cornyn-whitehouse-criminal-justice-reform/. Chief McClelland has expressed a
      similar sentiment:
             [I]f you think about it, we are sentencing these people we arrest on a
             very frequent basis for minor crimes to life sentences . . . . [I]f a
             person has nothing to be released to – no family structure, no
             opportunity for legitimate employment, no education, no job skills –
             the system is almost guaranteeing you’re going to get involved in
             some illegal activity and go back to prison.
      Barned-Smith, supra note 7, at B1.
9
      See Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Cong. (2015);
      see also United States v. Saena Tech Corp., Nos. 14-66 (EGS), 14-211 (EGS), ---F.
      Supp. 3d ---, ---, 2015 WL 6406266, at *25–29 (D.D.C. Oct. 21, 2015) (noting
      current national focus on “reducing sentencing disparities and lowering the offense
      levels applicable to certain drug crimes,” including legislation “currently pending
      in Congress” aimed at “reduc[ing] mandatory-minimum sentences in certain cases
      and otherwise provid[ing] more opportunity for the sentences of drug offenders to
      be more closely tailored to the particular offense”); SAFE Justice Act, H.R. 2944,
      114th Cong. (2015) (bipartisan legislation aimed at limiting application of federal
      mandatory minimum drug sentences to highest-level offenders); Smarter
      Sentencing Act of 2015, S. 502, H.R. 920, 114th Cong. (2015) (bipartisan legislation

                                           6
1980, the federal-prison population was stable at approximately 24,000 inmates, but

today there are over 200,000 men and women in federal prison.10

      Likewise, Texas has experienced a similar exponential growth of our prison

population. In 1945, Texas’s prison-inmate population was 3,270.11 In 2014, it was

166,043, more than any other state in the country.12

      Further, as of 2010, the United States was spending more than $80 billion on

criminal corrections expenditures at federal, state, and local levels.13 And one study



      aimed at reducing costs of prison populations by creating fairer, less costly
      minimum terms for nonviolent drug offenders); Justice Safety Valve Act of 2015,
      S. 353, H.R. 706, 114th Cong. (2015) (bipartisan legislation aimed at allowing
      federal courts to sentence criminal defendants below mandatory minimum
      sentenced if term fails to fulfill goals of punishment and other sentencing criteria).
10
      See Cornyn & Whitehouse, supra note 8.
11
      See Paul M. Lucko, Prison System, in 5 THE NEW HANDBOOK OF TEX. 341, 343
      (Ron Tyler et al. eds., 1996).
12
      See E. Ann Carson, Prisoners in 2014, U.S. DEP’T OF JUSTICE, OFFICE OF JUSTICE
      PROGRAMS, BUREAU OF JUSTICE STATISTICS 3 (Sept. 2015), http://www.bjs.gov/
      content/pub/pdf/p14.pdf.
13
      See Melissa S. Kearney et al., Ten Economic Facts about Crime and Incarceration
      in the United States, THE HAMILTON PROJECT 2, 13 (May 2014),
      http://www.brookings.edu/~/media/research/files/papers/2014/05/01%20crime%2
      0facts/v8_thp_10crimefacts.pdf (noting “more than 90 percent” of $80 billion
      corrections expenditures “occur[ed] at state and local levels”); Aimee Picchi, The
      High Price of Incarceration in America, CBSNEWS.COM (May 8, 2014, 5:53 AM),
      http://www.cbsnews.com/news/the-high-price-of-americas-incarceration-80-billio
      n/ (explaining United States spent more than $80 billion on corrections expenditures
      at federal, state, and local levels in 2010); see also Matt Vespa, Our Ruinously
      Expensive Criminal Justice System, TOWNHALL.COM (July 17, 2015),
      http://townhall.com/tipsheet/mattvespa/2015/07/17/criminal-justice-event-n20260
      28 (noting “our criminal justice system has seen an explosion in government
      spending on the federal level amounting to an 800 percent increase”).


                                            7
has found that “[c]rime-related expenditures generate a significant strain on state and

federal budgets” and “[t]oday’s high rate of incarceration is considerably

costly . . . with state governments bearing the bulk of the fiscal burden.”14

      For instance, in 2012, Texas spent $50.04 per person, per day to incarcerate a

single individual in a Texas prison.15 At that time, there were approximately 137,095

individuals incarcerated in Texas prisons, meaning the state was paying

$6,860,233.80 per day to imprison such individuals.16 Further, of the 137,095

individuals in Texas prisons in 2012, 20,313 of them were incarcerated for drug-

related offenses, approximately fifty-one percent of which were possession-only

drug offenses.17 Thus, based on these figures, in 2012, Texas spent $516,963.24 per

day to incarcerate individuals, like appellant, in prison for possession-only drug

offenses.18 And this amount does not include the $144,658.80 also spent per day by




14
      Kearney et al., supra note 13, at 12–13.
15
      See LEGISLATIVE BUDGET BD., CRIMINAL JUSTICE UNIFORM COST REPORT, FISCAL
      YEARS 2010 TO 2012 8 (Jan. 2013), http://www.lbb.state.tx.us/Public_
      Safety_Criminal_Justice/Uniform_Cost/Criminal%20Justice%20Uniform%20Cost
      %20Report%20Fiscal%20Years%202010%20to%202012.pdf.
16
      See id.; TEX. DEP’T OF CRIMINAL JUSTICE (“TDCJ”), FISCAL YEAR 2012
      STATISTICAL REPORT 1, http://www.tdcj.state.tx.us/documents/Statistical_Report
      _FY2012.pdf.
17
      See TDCJ, supra note 16, at 1, 9 (10,331 individuals incarcerated in Texas prisons
      in 2012 for possession-only drug offenses).
18
      See LEGISLATIVE BUDGET BD., supra note 15, at 8; TDCJ, supra note 16, at 9.


                                           8
the state to incarcerate individuals in Texas state jails for possession-only drug

offenses.19

      Of course, the human toll cannot be calculated.

      Perhaps it is time for the Texas Legislature to follow Chief McClelland’s and

Senator Cornyn’s leads and consider whether it is really worth the cost, in both

human and financial terms, to impose decades-long prison sentences on nonviolent

offenders like appellant. Maybe, as pointed out by Chief McClelland, onerous

prison sentences for nonviolent offenders are only making matters worse, feeding an

insatiable criminal justice machine that, in Senator Cornyn’s words, “often

perpetuates a vicious cycle in which prisoners are released unprepared to succeed”?20

As explained by Chief McClelland:

      There are many who believe that the criminal justice system is broken.
      I’m certainly not one to believe it’s broken; it’s producing the results
      it’s designed to produce.

      If we want different results, the system must be reformed. Because it’s
      doing exactly what it is designed to do.[21]




19
      See LEGISLATIVE BUDGET BD., supra note 15, at 8 (costs state $42.90 per person,
      per day to incarcerate individual in Texas state jail); TDCJ, supra note 16, at 9 (in
      2012, 3,372 individuals incarcerated in Texas state jails for possession-only drug
      offenses).
20
      See Cornyn & Whitehouse, supra note 8.
21
      Barned-Smith, supra note 7, at B1.


                                            9
      Then again, maybe Chief McClelland is wrong and we will get a different

result this time. Maybe, just maybe, this time appellant will emerge from prison not

an addict, but completely rehabilitated and employable.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Jennings, J., concurring, joined by Keyes, J.

Publish. TEX. R. APP. P. 47.2(b).




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