                                                                              ACCEPTED
                                                                        07-14-00314-CR
                                                            SEVENTH COURT OF APPEALS
                                                                      AMARILLO, TEXAS
                                                                  4/17/2015 10:43:47 AM
                                                                       Vivian Long, Clerk


                NO. 07-14-00314-CR

                                                      FILED IN
           IN THE COURT OF APPEALS             7th COURT OF APPEALS
                                                   AMARILLO, TEXAS
FOR THE SEVENTH DISTRICT OF TEXAS AT          AMARILLO
                                               4/17/2015 10:43:47 AM
                                                     VIVIAN LONG
                                                        CLERK

                  Rachel Johnson
                     Appellant,
                         v.
              THE STATE OF TEXAS,
                     Appellee,
       On Appeal from Cause No. 2013-438,766
             In the 137th District Court
              Lubbock County, Texas
    BRIEF OF APPELLANT, RACHEL JOHNSON

                                  Respectfully submitted,

                                  Joel Cook
                                  State Bar No. 24044289
                                  Attorney at Law
                                  810 Main Street
                                  Lubbock, Texas 79401
                                  (806) 747-3825 (tel.)
                                  (806) 747-3851 (fax)

                                  ATTORNEY FOR
                                  APPELLANT
                                  RACHEL JOHNSON

                                  APRIL 17, 2015

      ORAL ARGUMENTS NOT REQUESTED
                           NO. 07-14-00314-CR


                     IN THE COURT OF APPEALS
      FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO


                             Rachel Johnson
                                Appellant,
                                    v.
                        THE STATE OF TEXAS,
                                Appellee,
                On Appeal from Cause No. 2013-438,766
                        In the 137th District Court
                         Lubbock County, Texas
            BRIEF OF APPELLANT, RACHEL JOHNSON


TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

      In accordance with rule 38.1 of the Texas Rules of Appellate
Procedure, Appellant Rachel Johnson, files her Appellant’s Brief.




                                     ii
              IDENTITY OF PARTIES AND COUNSEL


1.   Trial counsel for the defendant were Robin Matthews, State Bar No.

     24029711, 1703 Ave. K, Lubbock, TX 79401, (806) 763-0409 and

     James M. Moore, State Bar No. 24065783, 5147 69th Street, Suite D

     Lubbock, Texas 79424 Phone: (806) 747-7373, Fax: (806) 747-6031

     and Philip A. Wischkaemper, Lubbock Private Defender's, Office

     State Bar No. 21802750, 1504 Main Street Lubbock, Texas 79401,

     Phone: (806)749-0007, Fax: (806) 749-0009. Appellate counsel for

     Appellant is Joel Cook, State Bar No. 24044289, Law Offices of Wm.

     Everett Seymore, 810 Main Street Lubbock, Texas 79401(806) 747-

     3825 (telephone), (806) 747-3851 (facsimile).



2.   Trial counsel for the State were Jaret Greaser Assistant Criminal

     District Attorney SBOT No. 24045974 and Matt Morrow Assistant

     Criminal District Attorney SBOT No. 24081053 Lubbock County

     Courthouse, 2nd Floor P.O. Box 10536 Lubbock, Texas 79408-3536,

     Phone: (806) 775-1100 Fax: (806) 775-7930.




                                     iii
                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL…………………………………...iii

TABLE OF CONTENTS…………………………………………………...iv

INDEX OF AUTHORITIES………………………………………………....v

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

ISSUES PRESENTED……………………………………………………...2

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

SUMMARY OF THE ARGUMENT...………………………………………..3

STANDARD OF REVIEW………………………………………………….4

ARGUMENT……………………………………………………………...5

    I.   The sentence of the trial court violates the state and federal
         constitutional prohibition on cruel and unusual punishment.

CONCLUSION…………………………………………………….……...9

PRAYER…………………………………………………….…………...10

CERTIFICATE OF SERVICE ……………………………………….……...11

CERTIFICATE OF COMPLIANCE …………………………….…….……...11




                                   iv
                        TABLE OF AUTHORITIES



                                                                 Page(s)

CASES



Harmelin v. Michigan,

      501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)…….3,4,6

Johnson v. State,

      864 S.W.2d 708 (Tex.App.-Dallas 1993) (en banc), aff'd, 912 S.W.2d
      227 (Tex.Crim.App.1995)……………………………….…..3

Lackey v. State,

      881 S.W.2d 418 (Tex.App.-Dallas 1994, writ ref'd)…...…….3,4

McGruder v. Puckett,

      954 F.2d 313 (5th Cir.1992)…………………………………..4

Samuel v. State,

      477 S.W.2d 611 (Tex.Crim.App.1972)……………………….3

Solem v. Helm,

      463 U.S. 277 103 S.Ct. 3001 (1983)…………………………..3,4,5,6




                                    v
STATUTES:

TEX. PEN.CODE ANN. § 29.02………………………………………....…..……..1

TEX. PEN.CODE ANN. § 29.03……………………………………..….………….1

TEX.CODE CRIM.PROC.ANN. Art. 42.12(3)……………………………………..8



SECONDARY SOURCES:

Kevin M. Beavers et al., The Nurture Versus Biosocial Debate in Criminology: On The
Origins Of Criminal Behavior And Criminality, 377-78 (2014)………….…...…….7



Lindsay M. Howden & Julie A. Meyer, Age and Sex Composition: 2010 (May 2011),
http://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf…………………….…..8




                                          vi
                            STATEMENT OF THE CASE

          Appellant, Rachel Johnson (“Rachel”) was charged by indictment

with a single count of Aggravated Robbery.1 After a bench trial, she was

convicted of the lesser-included offense of Robbery.2 On July 21, 2014, the

trial court sentenced her to six years in the Texas Department of

Corrections-Institutional Division.3 Rachel filed a Motion for New Trial,

alleging that the outcome of the case was “contrary to the law and the

evidence,” and a Notice of Appeal on July 28, 2014.4                  The trial court

certified her right to appeal on August 1, 2014.5




1 CR.7. (The Clerk’s Record will be cited to as “CR” followed by the page number, and
the Reporter’s Record will be cited to as “RR” followed by the volume and page
number).
2 CR.68. (Robbery is a 2nd degree felony carrying a punishment range of 2-20 years while
the charge of Aggravated Robbery is a first degree felony with a punishment range of 5-
99 years to life). TEX. PEN.CODE ANN. §§ 29.02-3 (Vernon Supp.2012).


3   Id.
4   Id. at 62-66.
5   Id. at 67.

                                            1
                                  ISSUES PRESENTED

         Did the trial court’s sentence of six years of confinement in TDCJ-ID

constitute cruel and unusual punishment?




                                STATEMENT OF FACTS


         Rachel was eligible for probation.6 Her only prior conviction was for

a misdemeanor deferred adjudication.7 The trial court convicted her of the

lesser included offense of Robbery.8             The testimony of the responding

officer indicated that Rachel looked “…not very comfortable…” holding the

pellet gun during the robbery.9 During testimony of the victim, Rachel

apologized in open court for her actions.10 There was testimony from the

probation office that she would be a good candidate for probation.11


6   CR. 49-50.
7   RR.VI.6.
8   CR.68
9   RR.III.23.
10   RR.III.195.
11   RR.V.126; 131 (checked in regularly); RR.V.132 (no positive drug tests while on pre-

trial release); RR.VI.111.



                                             2
                       SUMMARY OF THE ARGUMENT


      The trial court’s decision to sentence Rachel to six years in the

penitentiary was cruel and unusual punishment when she was eligible for

probation and her criminal history was comprised of one prior misdemeanor

deferred adjudication. The Supreme Court has held that there is a narrowly

applied “proportionality rule” that can be applied to punishments that are

grossly disproportional to the underlying criminal activity giving rise to the

sentence. While the Supreme Court has applied the three-factor test laid out

in Solem in the past in assessing disproportionate sentences, recent decisions

indicate that the standard used to resolve these types of cases may not

require strict adherence to that test. It would seem that the harshness of the

sentence when compared to the gravity of the conduct may be sufficient to

warrant a reversal of a particular sentence without inquiry into the remaining

Solem factors. We would ask this Court to consider that Rachel’s sentence

in this case is grossly disproportionate to the gravity of her offense and that

this factor alone supports a finding that her sentence is cruel and unusual.




                                       3
                                STANDARD OF REVIEW


          Texas courts have held that a punishment is not cruel and unusual if it

is within the range authorized by statute.12 However, at least one Texas

court has concluded that sentences are reviewed to determine whether the

sentence imposed is grossly disproportionate to the crime.13 The Eighth

Amendment requires that the punishment assessed must be proportionate to

the crime.14 The Solem court set out three factors a reviewing court should

consider when determining whether an assessed sentence is disproportionate

to the offense (1) the offense's gravity and the penalty's harshness, (2) the

sentences imposed on others in the same jurisdiction for this offense, and (3)

the sentences imposed for the same offense in other jurisdictions.15                   A

majority of the Harmelin court voted to affirm Harmelin's sentence, but only

four justices supported the continued application of all three Solem factors.16

12Johnson v. State, 864 S.W.2d 708, 725 (Tex.App.-Dallas 1993) (en banc), aff'd, 912
S.W.2d 227 (Tex.Crim.App.1995); Samuel v. State, 477 S.W.2d 611, 614
(Tex.Crim.App.1972).
13Lackey v. State, 881 S.W.2d 418, 421 (Tex.App.-Dallas 1994, writ ref'd) (adopting the
Fifth Circuit's interpretation of Solem and Harmelin in McGruder, 954 F.2d at 316).
14Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); but see
Harmelin v. Michigan, 501 U.S. 957, 991-93, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)
(Scalia, J., plurality op.).
15   Solem, 463 U.S. at 292.
16   See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.1992).

                                              4
Under this standard of review, this Court should initially compare the

gravity of appellant's offense against the severity of the sentence. Only if the

Court finds that the punishment is grossly disproportionate to the offense

should it then consider the remaining Solem factors.17 The Eighth

Amendment does not require strict proportionality between crime and

sentence, but rather forbids only extreme sentences that are grossly

disproportionate to the crime.18


                                       ARGUMENT


          Rachel was sentenced to six years of confinement for robbing

someone with a pellet gun for a few hundred dollars.19 Rachel is a forty-four

year old single mother of eight children. She is physically well beyond her

“prime” in terms of potential criminal activity. She is eligible for probation

and only has one “prior conviction,” being a misdemeanor deferred

adjudication. Lastly, the probation department, which is tasked with

supervising probationers and making certain findings to the trial court

regarding sentencing, indicated to the judge prior to sentencing that Rachel

would be a good candidate for probation. Based on these factors, she should
17   See Lackey, 881 S.W.2d at 421.
18    Harmelin, 501 U.S. 957, 959, 111 S.Ct. 2680, 2683

19   RR.III.193.

                                             5
have been given probation because the ordered punishment is grossly

disproportionate to her crime.


           In Solem, the defendant was sentenced to life without parole for

issuing a “no account” check for $100.20 He was sentenced under South

Dakota’s recidivist statute based on prior felony convictions.21 After

reviewing prior decisions and the meaning and intent of the 8th Amendment,

the Supreme Court found that the sentence was grossly disproportionate to

the offense and reversed the trial court’s sentence.22


           In coming to that conclusion, the court initially looked at the offense

in comparison to the sentence, but also looked at other sentences imposed on

criminals in the same jurisdiction and the sentences imposed for the same

crime in other jurisdictions.23 This came to be known as the Solem test.

However, in Harmelin, the court would revisit its 8th Amendment

jurisprudence and held that the three factor test is not always required:


           “Solem is best understood as holding that comparative
           analysis within and between jurisdictions is not always
           relevant to proportionality review. The Court stated that “it
20   Solem, 463 U.S. at 281.
21   Id.
22   Id. at 303.
23   Id. at 291-92.

                                            6
           may be helpful to compare sentences imposed on other
           criminals in the same jurisdiction,” and that “courts may
           find it useful to compare the sentences imposed for
           commission of the same crime in other jurisdictions.”
           However, it did not make such inquiries mandatory.24


        It would seem that if this Court finds that the sentence is grossly

disproportionate as a threshold matter, than it could, but does not necessarily

have to, consider the other Solem factors. In fact, Solem stated that in

determining unconstitutional disproportionality, “no one factor will be

dispositive in a given case” and that (“[N]o single criterion can identify

when a sentence is so grossly disproportionate that it violates the Eighth

Amendment”.25


        The Supreme Court has held that there must be “some” proportionality

between a crime and its punishment, and that grossly disproportionate

sentences will be found unconstitutional. The question this Court must first

answer is whether the gravity of Rachel’s action justifies the severity of the

punishment. Solem’s crime dealt with a very low dollar amount, but he was

essentially sentenced for his extremely long criminal history. Here, Rachel’s

crime dealt with a similarly small monetary amount and her actions, while

24Harmelin, 501 U.S. 1004-5, quoting Solem, supra, 463 U.S. at 291-92 (emphasis
added).
25   Solem, 463 U.S. 291, n. 17.

                                          7
callous and indifferent to the well-being of her victim, do not support six

years of incarceration.


           Research indicates that Rachel is unlikely to commit any other crime

in the future, let alone another robbery.26 Scientists have noted a direct link

between age and criminal activity and found that “[a]ge is a consistent

predictor of crime, both in the aggregate and for individuals. The most

common finding across countries, groups, and historical periods shows that

crime—especially “ordinary” or “street” crime—tends to be a young

person’s activity.”27 Young being a relative term, but typically defined as

under the age of 25.28 Rachel is rapidly approaching middle age, if not

already within that demographic. While there are various definitions of

what defines middle age, The US census bureau defines it as 45-64.29 This

indicates that Rachel is rapidly declining in terms of future dangerousness

and likelihood to re-offend and that her crime in this case was most likely an

isolated incident, unlikely to be repeated.


 Kevin M. Beavers et al., The Nurture Versus Biosocial Debate in Criminology: On The
26

Origins Of Criminal Behavior And Criminality, 377-78 (2014).

27   Id. at 393.
28   Id. at 377.
29 Lindsay M. Howden & Julie A. Meyer, Age and Sex Composition: 2010 (May 2011),
http://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf.
                                          8
         Rachel was eligible for probation.30 She had no been prior felony

conviction and received a sentence under 10 years for the instant offense.

Furthermore, her only “prior” was a misdemeanor deferred adjudication

from 2004, that was ultimately completed.31 There was circumstantial

evidence offered throughout the case, and direct testimony from the

probation department, that Rachel would indeed be a good candidate for

probation. Rachel had no pre-trial bond issues and no positive drug tests

while awaiting her trial. Being middle-aged, with no prior felony

convictions, and the ability for success on probation casts doubt on the trial

court’s decision to incarcerate Rachel, and calls into question the

proportionality of that decision in light of her crime.




                                  CONCLUSION


         Typically, if the Court determines that the sentence is disproportionate

to the crime, then it moves to the other Solem factors, but after Harmelin the

remaining factors may, or may not be, continuing points of inquiry for the

Court to consider when determining the overall constitutionality of a


30   See TEX.CODE CRIM.PROC.ANN. Art. 42.12(3).
31   RR.V.7; RR.VI.6.

                                         9
sentence. In that light, We would ask this Court to consider that six years in

the penitentiary is grossly disproportionate to Rachel’s actions and that this

factor, standing alone, is sufficient to make her sentence cruel and unusual.




                                   PRAYER


      We respectfully request this Court to reverse the decision of the trial

court in respect to the punishment given to Rachel, and remand the case for a

new sentencing hearing consistent with the arguments and authorities cited

herein.


                                              Respectfully submitted,


                                              Joel Cook
                                              State Bar No. 24044289
                                              Attorney at Law
                                              810 Main Street
                                              Lubbock, Texas 79401
                                              (806) 747-3825 (tel.)
                                              (806) 747-3851 (fax)
                                              joel_cook@outlook.com

                                              /s/ Joel Cook
                                              Joel Cook, Attorney for the
                                              Appellant



                          CERTIFICATE OF SERVICE
                                        10
      I certify that on April 17, 2014, a true, correct, and complete copy of
this Appellant’s Brief was delivered to counsel for the State.


                                             /s/ Joel Cook
                                             JOEL COOK


                      CERTIFICATE OF COMPLIANCE

       This is to certify that this document is in compliance with the word
limit set in Rule 9.4.(i)(2)(B) as determined by Rule 9.4.(i)(2) and is hereby
acknowledged in this Certificate in accordance with the Texas Rules of
Appellate Procedure 9.4.(i)(3). This document contains 1651 words.


                                             /s/ Joel Cook
                                             JOEL COOK




                                       11
