1

CASE NO. 12-15-00171CR 

IN THE TWELFTH COURT OF APPEALS 

TYLER, TEXAS 

JIMMY ANDREW DAVIS, JR., Appellant 

Vs. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 

3RD Judicial District Court, 

Anderson County, Texas 

(Trial Court No. 31760) 

Honorable MARK CALHOON 

BRIEF OF APPELLANT 

MARK W. CARGILL 

TBC# 00787201 

701 N. Elm 

Palestine, Texas 75801 

903/729-8011 

COUNSEL FOR APPELLANT 

ORAL ARGUMENT WAIVED 

ACCEPTED

12-15-00171-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

9/28/2015 11:22:57 AM

Pam Estes

CLERK

 RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 9/28/2015 11:22:57 AM PAM ESTES Clerk
2

PARTIES

JIMMY ANDREW DAVIS, JR. APPELLANT

Mark W. Cargill

Attorney for Defendant/Appellant

701 N. Elm

Palestine, Texas 75801

Allyson Mitchell 

District Attorney

500 N. Church Street

Palestine, Texas 75801
3

TABLE OF CONTENTS

Page

Table of Contents........................................................................................................ 3

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

Statement of the Case................................................................................................ 6

Point of Error Number One.............................................................................. 6

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

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

Summary of Argument .......................................................................................... 6

Argument ..................................................................................................................... 7

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

Certificate of Service................................................................................................ 10
4

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

Bell v. State, 233 S.W. 3d 583 (Tex. App. Waco 2007, pet dismissed) 8, 9

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

Hoitt v. State, 28 S.W. 3d 162 (Tex. App. Texarkana 2000, no pet) 8,9

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

McCoy v. State, 932 SW 2d 720, (Tex. App. 1996, pet refused) 8,9 

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
5

CASE NO. 12-15-00171CR

IN THE TWELFTH COURT OF APPEALS

TYLER, TEXAS

JIMMY ANDREW DAVIS, JR. Appellant

Vs.

THE STATE OF TEXAS, Appellee

On Appeal from the

3RD Judicial District Court,

Anderson County, Texas

(Trial Court No. 31760)

Honorable MARK CALHOON

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, JIMMY ANDREW DAVIS, JR. the Appellant, and files this his 

Brief of Appeal in the above-entitled and numbered cause. 
6

STATEMENT OF THE CASE

On March 24, 2015, Defendant, JIMMY ANDREW DAVIS, JR., was found guilty 

of MANUFACTURING AND DELIVERY OF A CONTROLLED SUBSTANCE PG1 <1G, 

DRUG FREE ZONE in a jury trial, on 6/5/2015 the Court sentenced him to 30 years 

in the Texas Department of Criminal Justice Institutional Division. Defendant timely 

appealed. 

ISSUE PRESENTED

POINT OF ERROR NUMBER ONE

The trial court errored in rendering judgment and sentencing Appellant to 30

years 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 punishment trial and other 

testimony from Defendant and other witnesses to render their sentence. 

(Sentencing RR Vol. 1, page 12)

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 if 

cruel and unusual treatment. To sentence a Defendant to a sentence that is 
7

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 

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 survies: 

Sloem 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 
8

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. - 

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 charged with a 3rd degree felony offense of

Manufacturing/Delivering of Controlled Substance PG1<1G, drug free zone. 

Appellant was found guilty to the charged offense but his 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 10 years or less than 2 years and in addition to the 

imprisonment, may be assessed a fine not to exceed $10,000.00. Additionally, 

Defendant had enhancements of previous convictions which made the range of 

punishment not more than 99 years to life or less than 25. 

The sentence of 30 years’ incarceration is grossly disproportionate. 

In terms of other manufacturing/delivery of controlled substance PG1<1G 

drug free zone cases, the facts which made up the gist of the manufacturing/delivery 
9

of controlled substance PG1<1G drug free zone, now before this Court, this Court 

must conclude that the punishment assessed, the sentence of 30 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 his punishment is excessive. Punishment for the worst possible 

manufacturing/delivery of a controlled substance PG1<1G, drug free zone cannot 

exceed a 10 years sentence life with enhancements. Appellant was sentenced to 30 

years. It is clear that other much more serious manufacturing/delivery of a 

controlled substance PG1<1G drug free zone 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. Thirty years’ confinement in prison is 

not proportionate for the offense of manufacturing/delivery of a controlled 

substance PG 1<1G drug free zone 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. 
10

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

cargillaw@earthlink.net

Attorney for Appellant

CERTIFICATE OF SERVICE

This is the certify that on September 27, 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 27th day of September 2015, I, Mark W. Cargill, hereby certifies that this 

brief has a word count of 1598.

_______________________________________________

Mark W. Cargill

 Mark W Cargill Mark W Cargill Mark W Cargill