NO. 13- 15

- 00156

- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

STATE OF TEXAS v. GABIER GONZALES

F ROM THE 36 TH D ISTRICT C OURT , S AN P ATRICIO C OUNTY , T EXAS

C AUSE N O

. S- 11 -3069- CR,
THE H ONORABLE S TARR B AUER PRESIDING

APPELLEE
John M. Lamerson Jacqueline Rae Lamerson Attorney at Law Attorney at Law State Bar No. 24076495 State Bar No. 24074923 P.O. Box 241 P.O. Box 241 Corpus Christi, TX 78403 Corpus Christi, TX 78403 Tel: (361) 816-9969 Tel: (361) 816-9969 Fax: (866) 935-5634 Fax: (866) 935-5634

ORAL ARGUMENT REQUESTED ACCEPTED 13-15-00156-CR THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 7/28/2015 6:57:14 PM CECILE FOY GSANGER

CLERKAPPELLANT’S BRIEF

NO. 13

- 15

- 00156

- CR IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

STATE OF TEXAS v. GABIER GONZALES

F ROM THE 36 TH D ISTRICT C OURT , S AN P ATRICIO C OUNTY , T EXAS

C AUSE N O

. S

- 11

- 3069

- CR,
THE H ONORABLE S TARR B AUER PRESIDING

TO THE HONORABLE COURT OF APPEALS:

NOW COMES
, Defendant, Appellant herein, file s and submit his Brief
in this appeal from a revocation of probation and a judgment of guilty , and

would respectfully show as follows:IDENTITY OF PARTIES AND COUNSEL

Appellant : GABIER GONZALES
Counsel for Appellants at trial: Mr

. Mark Eggert 707 E San Patricio Ave Mathis, TX 78368

- 2430 SBOT No. 06482300
Counsel for Appellants on Appeal: John M. Lamerson Jacqueline Rae Lamerson The Lamerson Law Firm Attorney at Law State Bar No. 24076495 State Bar No. 24074923 P.O. Box 241 P.O. Box 241 Corpus Christi, TX 78403 Corpus Christi, TX 78403 SBOT No. 24076495 SBOT No. 24074923

Counsel for State at Trial: M r. Frank Errico San Patricio County District Attorney’s Office 400 West Sinton Street, Room 233 P.O. Box 1393 Sinton, TX 78387 SBOT No. 06648950
State Appellate Counsel: M r. Frank Errico San Patricio County District Attorney’s Office 400 West Sinton Street, Room 233 P.O. Box 1393 Sinton, TX 78387 SBOT No. 06648950TABLE OF CONTENTS

Identity of Parties and Counsel

............................... 3

Table of Contents

............................... ............... 4

Index of Authorities

............................... ............... 5

Statement of the Case

............................... ............... 6

Issues Presented

............................... ............... 6

A. T he sentence imposed by the trial court was disproportionate to the seriousness of the alleged offense, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

S tatement of Facts

............................... ............... 7
Summary of the Argument ................................................ 8

Argument .....................

.................................................... 9

Issue 1: Eighth and Fourteenth Amendments.

.................. 9 Prayer

.......................................................................... 13

Certificate of Service

....................................................... 14 Certificate of Compliance .................................................... 15INDEX OF AUTHORITIES

Texas Cases:

Noland v. State , 264 S. W.3d 144, 151 (Tex.App.

— Houston [1st Dist.] 2007, pet. ref’d)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 9

Federal Cases:

Baze v. Rees
, 553 U.S. 35 (2008)

... ... ... ...... . ... ... ... ... ... ... ... ... ... .... 9
Coker v. Georgia , 433 U.S. 584 ( 1977 )

... ... ... .. ... ... ... ... ... ... ... ... ... . 10
Furman v. Georgia , 408 U.S. 238 (1972)

... ... ... ... ... ... ... ... ... ... . 10
Gregg v. Georgia
, 428 U.S. 153 ( 1976 )

... ... ... ... ... ... ... ..... ... ... ... .... 10

Robinson v. California , 370 U.S. 660 (1962)

... ... ... ... ... ... ... ... ... ... . 9
Trop v. Dulles , 356 U. S. 86 (1958)

... ... ... ... ... ... ... ... .. ... ... ... .... 10

Weems v. United States , 217 U. S. 349 (1910)

... . ... ... ... ... ... .... 10

United States Constitution:

U.S. CONST. amend. VIII

... ... .. ... ... ... ...... . ... ... ... ... ... ... ... ... ... .... 9

U.S. CONST. amend. XIV

... ..... ... ... ... ...... . ... ... ... ... ... ... ... ... ... .... 9
Secondary Sources :

Kirchmeier , Jeffrey L., “ Let's Make a Deal: Waiving the Eighth Amendment by Selecting a Cruel and Unusual Punishment ,” Connecticut Law Review, Vol. 32, No. 2, pp. 615

- 52, Winter 2000

... ... ... ... ... ... ... ..... ... ... ... .... 11STATEMENT OF THE CASE

On March 20, 2015
, against the recommendation of the probation
department, the Defendant, Gabier Gonzales, was revoked from his
probation and sentenced to fifteen (15) years in the Institutional Di vision of
the Texas Department of Criminal Justice

. This revocation and sentence

was a violation of the Defendant ’ s right against cruel and unusual
punishment. This Eighth Amendment protection cannot be waived by the

Defendant.

ISSUES PRESENTED

I ssue 1 : The sentence imposed by the trial court was disproportionate to the seriousness of the alleged offense, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.STATEMENT OF FACTS

On M a rch 20, 2015, a Motion to R evoke the p robation of Defendant

Ga bier Gonzales was heard before Judge Janna Whatley in the 36th
Judicial District Court, San P a tricio County, Texas. The State presented as

evidence to the Court the S tipulation and W aiver of the P re
- S entence

R eport , the Stipulation and J udicial C onfession , and the Pre

- S entence
Investigation Report. Testimony from the Defendant was taken by the
State and the Defense, and it was made part of the record that the San
Patricio Probation Department recommended that the Defendant be
continued on probation. The Judge revoked the Defendant from his
probation and sentenced him to fifteen (15) years in the Institutional

Di vision of the Texas Department of Criminal Justice

.SUMMARY OF ARGUMENT

The punishm ent assessed by the trial Court was excessive in relation

to the crime committed. The punishment wa s excessive and

unconstitutional as it (1) makes no measurable contribution to acceptab le
goals of punishment, and hence is nothing more than the purposeless and
needless imposition of pain and suffering; and/or (2) is grossly out of
proportion to the severity of the crime

. The Eighth Amendment protections
guaranteed to the Defendant cannot be waived be cause such waivers do
not benefit the individual or society

.ARGUMENT

Issue I : The sentence imposed by the trial court was disproportionate to the seriousness of the alleged offense, in violation of the Eighth and Fourteenth Amendments to the United States Constitution

. The Eighth Amendment provides that “[e]xcessive bail shall not be
required, nor excessive fine imposed, nor cruel and unusual punishment

inflicted.” See U.S. CONST. amend. VIII, XIV. The Eighth Amendment
applies to punishments imposed by state courts through the Due Process

Clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV. The
protection against cruel and unus u al punishment has been incorporated by
the United States Sup reme Court against the states. Robinson v.

California , 370 U.S. 660 (1962) ; Baze v. Rees
, 553 U.S. 35 (2008)

. In this present case, probation recommended that the Defendant be
reinstated on probation instead of being revoked. RRv2 8:24

- 9:3. The
reasoning behin d their recommendation w as set forth in the Pre

- Sentence
Investigation Report introduced into evidence as State’s Exhibit A. No new
offenses were the subject of the motion to revoke, and the alleged

violations were technical in nature.

The difference betw een the course of action recommended by the
probation department and the s entence imposed by the court, fifteen yearsincarceration in the institutional division of the Texas Department of

Corrections, is so severe , particularly given the lack of severity of the

violations, that it can only be termed as cruel and unusual, and a violation
of the Eighth and Fourteenth Amendments. The United States Supreme
Court has long held that a disp roportionality between the sentence and the

offense is a violation of the cruel an d unusual provisi on of the Eighth

Amendment. Coker v. Georgia , 433 U.S. 584 ( 1977 )

. As the Coker Court

held:

In sustaining the imposition of the death penalty in Gregg,

however, the Court firmly embraced the holdings and dicta from prior cases, Furman v. Georgia, supra; Robinson v. California, 370 U. S. 660 (1962); Trop v. Dul les, 356 U. S. 86 (1958); and Weems v. United States, 217 U. S. 349 (1910), to the effect that the Ei ghth Amendment bars not only those punishments that are "barbaric," but also those that are "excessive" in relation to the crime committed. Under Gregg, a punishment is "excessive" and unconstitutional if it (1) makes no measurable contribution to acceptab le goals of punishment, and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground. Furthermore, these Ei ghth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent. To this end, attention must be given to the public attitudes

conce rning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consultedIn this present case, the Defendant ’ s confinement to the Texas

Department of Corrections, given the fact that there had been no finding
that the Defendant was any danger to society , makes no measurable
contribution to acceptab le goals of punishment

. And in the alternative, the

Defendant ’ s revocation based solely on technical vio lations of his
probation, against the recommendation of the probation department, i s
grossly out of proportion to the severity of the crime

.
It is true that Texas c ourts have held heretofore that a party must
present a timely objection to the trial court, state the specific grounds for
the objection, and obtain a ruling

. “ The failure to specifically object to an
alleged d isproportionate or cruel and unusual sentence in the trial court or
in a post

- trial motion waives any error for our review. ” Noland v. State , 264

S. W.3d 144, 151 (Tex.App.

— Houston [1st Dist.] 2007, pet. ref’d)

. However, recent analysis of the Eighth Amendment, specifically the
prohibition against cruel and unusual punishment, has led constitutional
scholars to the proposition that the prohibition aga inst cruel and unusual
punishment cannot be waived by an individual.

In his article “ Let's Make a Deal: Waiving the Eighth Amendment by
Selecting a Cruel and Unusual Punishment ,” author Jeffrey L. Kirchmeier

states that the ban on cruel and unusual punishments is a right that differssignificantly from other constitutional criminal rights because it s erves a

broad societal purpose, and that the waiver of this right differs from the
waiver of other criminal rights be cause such waivers do not benefit the
individual or society. See Kirchmeier , Jeffrey L., “ Let's Make a Deal:
Waiving the Eighth Amendment by Selecting a Cruel and Unusual

Punishment ,” Connecticut Law Review, Vol. 32, No. 2, pp. 615

- 52, Winter

2000

. The analysis within the article makes sense from a practical and
legal point of v iew. Could the Texas legislature assign punis hment for a

C lass C misdemeanor at life
, a state jail felony at castration, if the
defendant voluntarily waives it as part of an ill

- advised plea agreement?

T he proposition that a person can choose to be treated cruelly and
unusually by the State is so counter to the interests that the Eighth
Amendment purports to protect that a waiver is legally and morally
impos sible.PRAYER

The Defendant respectfully request s that this Honorable Court grant
his request to find that the trial court abused its discretion for the reasons
stated above. The Defendant respectfully requests that judgment be

reversed and this case be remanded for a new trial.

Respectfully Submitted

John M. Lamerson The Lamerson Law Firm State Bar No. 24076495 P.O. Box 241 Corpus Christi, Texas 78403 Telephone: (361) 816

- 9969 Facsimile: (866) 935

- 5634 lamersonlawfirm@gmail.com
By /S/ John Michael Lamerson JOHN M. LAMERSON
Attorney for Defendant Gabier GonzalesCERTIFICATE OF SERVICE

I hereby certify that a true, correct, and complete copy of the
foregoing was served on all counsel of record via e

- filing and via

facsimile ( 361.364. 9490 ) to the San P a tricio County District Attorney's
Office, 400 West Sinton Street, Room 233
, P.O. Box 1393
, Sinton, TX

78387 in accordance with the Texas Rules of Appellate Procedure on
this day, July 28, 2015.

/S/ John Michael Lamerson JOHN M. LAMERSONRULE 9.4(I) CERTIFICATION

In compliance with the Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(I), is 1 , 8 91 per the Word software used to write this

document.

/S/ John Michael Lamerson JOHN M. LAMERSON