NO. 13-15-00156-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

STATE OF TEXAS v. GABIER GONZALES 

FROM THE 36TH DISTRICT COURT, SAN PATRICIO COUNTY, TEXAS

CAUSE NO. S-11-3069-CR,

THE HONORABLE STARR BAUER 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

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/28/2015 6:57:14 PM CECILE FOY GSANGER Clerk
APPELLANT’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

FROM THE 36TH DISTRICT COURT, SAN PATRICIO COUNTY, TEXAS

CAUSE NO. S-11-3069-CR,

THE HONORABLE STARR BAUER PRESIDING

TO THE HONORABLE COURT OF APPEALS:

NOW COMES, Defendant, Appellant herein, files 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:

Mr. 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:

Mr. 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
TABLE 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. 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 .............................................. 7

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

Argument ......................................................................... 9

Issue 1: Eighth and Fourteenth Amendments................... 9

Prayer .......................................................................... 13

Certificate of Service ....................................................... 14

Certificate of Compliance .................................................... 15
INDEX 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 ....................................... 11
STATEMENT 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 Division 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

Issue 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 March 20, 2015, a Motion to Revoke the probation of Defendant 

Gabier Gonzales was heard before Judge Janna Whatley in the 36th 

Judicial District Court, San Patricio County, Texas. The State presented as 

evidence to the Court the Stipulation and Waiver of the Pre-Sentence 

Report, the Stipulation and Judicial Confession, and the Pre-Sentence

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

Division of the Texas Department of Criminal Justice. 
SUMMARY OF ARGUMENT

The punishment assessed by the trial Court was excessive in relation 

to the crime committed. The punishment was excessive and 

unconstitutional as it (1) makes no measurable contribution to acceptable 

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 because 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 unusual punishment has been incorporated by 

the United States Supreme 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 behind their recommendation was 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 between the course of action recommended by the 

probation department and the sentence imposed by the court, fifteen years 
incarceration 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 disproportionality between the sentence and the 

offense is a violation of the cruel and unusual provision 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. Dulles, 356 U. S. 

86 (1958); and Weems v. United States, 217 U. S. 349 (1910), 

to the effect that the Eighth 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 acceptable 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 Eighth 

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 

concerning a particular sentence history and precedent, 

legislative attitudes, and the response of juries reflected in their 

sentencing decisions are to be consulted
In 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 acceptable goals of punishment. And in the alternative, the 

Defendant’s revocation based solely on technical violations of his 

probation, against the recommendation of the probation department, is 

grossly out of proportion to the severity of the crime.

It is true that Texas courts 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 disproportionate 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 against 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 differs 
significantly from other constitutional criminal rights because it serves a 

broad societal purpose, and that the waiver of this right differs from the 

waiver of other criminal rights because 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 view. Could the Texas legislature assign punishment for a 

Class C misdemeanor at life, a state jail felony at castration, if the 

defendant voluntarily waives it as part of an ill-advised plea agreement? 

The 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

impossible.
PRAYER

The Defendant respectfully requests 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 Gonzales
CERTIFICATE 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 Patricio 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. LAMERSON
RULE 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 1,891 per the Word software used to write this 

document.

/S/ John Michael Lamerson

JOHN M. LAMERSON