No. 06-15-00009-CR 

__________________________________________________________________________ 

IN THE SIXTH DISTRICT COURT OF APPEALS 

AT TEXARKANA, TEXAS 

 __________________________________________________________________________ 

CHRISTIAN SIBLEY 

Appellant, 

v.

THE STATE OF TEXAS 

Appealed from the County Court At Law One 

Gregg County, Texas 

 __________________________________________________________________________ 

BRIEF OF THE APPELLANT 

 __________________________________________________________________________ 

Clement Dunn 

State Bar No. 06249300 

140 East Tyler, Suite 240 

Longview, Texas 75601 

Telephone: 903-753-7071

Fax: 903-753-8783 

ORAL ARGUMENT WAIVED 

ACCEPTED

06-15-00009-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

5/7/2015 4:42:05 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 5/8/2015 8:29:00 AM DEBBIE AUTREY Clerk
IDENTITY OF PARTIES AND COUNSEL

Appellant certifies that the following is a complete list of all parties to the trial 

court=s judgment and the names and addresses of their trial and appellate counsel.

1. Appellant: Christian Sibley

2. Appellant=s Trial Counsel: Clement Dunn

Attorney at Law

140 E. Tyler Street, Suite 240

Longview, TX 75601

TSB No. 06249300

3. Appellant=s Counsel on Appeal: Clement Dunn

Attorney at Law

140 E. Tyler Street, Suite 240

Longview, TX 75601

TSB No. 06249300

4. Attorney for the State: Reid McCain

Assistant District Attorney, Gregg County 

101 East Methvin St., Suite 333

Longview, Texas 75601

TSB No. 24076541

i
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL......................................................................................... i

TABLE OF CONTENTS................................................................................................................ ii

INDEX OF AUTHORITIES ........................................................................................................... iii

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

STATEMENT REGARDING ORAL ARGUMENT....................................................................1

ISSUE PRESENTED.......................................................................................................................1

STATEMENT OF THE FACTS .........................................................................................................1

SUMMARY OF THE ARGUMENT ...................................................................................................2

ARGUMENT ...............................................................................................................................2

PRAYER.......................................................................................................................................................................5

CERTIFICATE OF SERVICE......................................................................................................................................6

CERTIFICATE OF WORD COUNT ...........................................................................................................................6

 

ii
INDEX OF AUTHORITIES

Cases

Nance v. State, 946 S.W. 2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d)..................4

Olson v. State, No. 02-14-00143-CR (Tex. App.—Fort Worth, dec’d April 23, 2015) 

(unpublished)............................................................................................................................4

Williams v. State, 958 S.W. 2d 844,845 (Tex. App.—Houston (14th Dist.) 1997, pet. ref’d)..4

Mitchell v. State, 931 S.W. 2d 950 (Tex. Crim. App. 1996) ...................................................4

Johnson v. State, Nos. 14-14-00209-CR, 14-14-00210-CR (Tex. App. –Houston (14th Dist.) 

dec’d March 10, 2015)(unpublished) ......................................................................................4

Segundo v. State, 270 S.W. 3d 79, 87 (Tex. Crim. App. 2008) ...............................................5

Aldor v. State, 871 S.W. 2d 726, 738 (Tex. Crim. App. 1994) ................................................5

Wilkerson v. State, 736 S.W. 2d 656, 659 (Tex. Crim. App. 1987) .........................................5

Constitutional Provisions

Article 37.07, Tex. Crim. Proc. sec. 3(a)(1) .............................................................................3

Article 37.07, Tex. Crim. Proc., section 3(g) ...........................................................................4

iii
BRIEF OF APPELLANT, CHRISTIAN

PAGE 1

STATEMENT OF THE CASE

Offense: Escape From Custody

Verdict: Guilty; three hundred thirty (330) days confinement – County Jail.

Date of Verdict: October 20, 2014

Trial Court: County Court At Law One, Gregg County, Texas.

This case involves a prosecution for the offense of Class A misdemeanor Escape. 

C.R., at 4. The Appellant entered a plea of guilty to the Court. R.R. at 5. This occurred 

without an agreement between the State and the Appellant regarding punishment; this 

entailed an “open” plea. Id. At the end of the hearing, the Court imposed a sentence of threehundred-thirty days in the county jail, a four-hundred dollar fine and costs of court. Id., at 

14.

STATEMENT REGARDING ORAL ARGUMENT

Believing the instant case contains issues capable of resolution on the basis of the 

record and the brief Appellant respectfully does not request oral argument. 

ISSUE PRESENTED

The Appellant respectfully submits that the Trial Court based its sentence on matters 

not properly in evidence before the Court and therefore not appropriate as factors in the 

assessment of sentences. 

STATEMENT OF THE FACTS

At the conclusion of the hearing in the instant case, the Trial Court stated:

THE COURT: The Court can consider the fact
BRIEF OF APPELLANT, CHRISTIAN

PAGE 2

that he's had a prior probation that was revoked, and he

received a 330-day sentence, I do believe. He has other

misdemeanor convictions.

I'm just going to consider the offense report, the

pre-sentence report -- which has a history of misdemeanor

convictions -- and the Court's own knowledge of Mr. Sibley through the 

years.

Mr. Sibley, you just like being a criminal. You

just do. And you want to be a criminal, so I'm going to treat

you like a criminal. You don't want to be rehabbed. You want

to be a gang member. You want to be tough.

So I've got a little misdemeanor case -- the maximum

is a year -- so there's not a lot I can do to you. But I am

going to sentence you to 330 days in the county jail and a

$400 fine, plus cost of court. This has not been a plea

agreement, so you have the right to appeal it if you want.

It's the same sentence you got for your last revocation. I

don't know if you're going to ever change your ways or not,

but I've got your number.

R.R., at 13-14. 

SUMMARY OF THE ARGUMENT

The Trial Court erred in basing its sentence on matters not in evidence and on 

assertions that do not properly inform the sentencing decision. 

ARGUMENT

As noted above, the Trial Court stated: 

I’m just going to consider the offense report, the pre-sentence reports—

which has a history of misdemeanor convictions—and the Court’s own 

knowledge of Mr. Sibley through the years.

R.R., at 13-14. When the Court says it is “going to consider,” inter alia, “the Court’s own 

knowledge of Mr. Sibley through the years,” the record contains no explanation of what this

might encompass. The context of this statement strongly indicates that this amounts to 

something beyond matters in evidence before the Court—i.e., the afore-mentioned offense 
BRIEF OF APPELLANT, CHRISTIAN

PAGE 3

report, pre-sentence report, and criminal history. The Court states this “knowledge” of Mr. 

Sibley “through the years” as a separate, and distinct, basis for the sentence.

The Court did not articulate what this “knowledge” comprises; “the Court’s own 

knowledge of Mr. Sibley through the years” places this consideration within, as stated, “the 

Court’s own knowledge,” not facts in evidence before the Court at the hearings. The record 

does not reflect that the Court took “judicial notice” of any particular matter at all. To the 

extent that an inference might arise that the Court judicially noticed its own knowledge, the 

record fails to reflect the contents of this knowledge being “judicially noticed.”

The Court went further:

Mr. Sibley, you just like being a criminal. You

just do. And you want to be a criminal, so I'm going to treat

you like a criminal. You don't want to be rehabbed. You want

to be a gang member. You want to be tough.

R.R. 14. The Appellant respectfully submits that no record evidence demonstrates that the

Appellant “likes” being a criminal, or “wanting” to be one. Similarly, nothing shows the 

Appellant resistant to efforts at rehabilitation. 

Article 37.07, Tex. Crim. Proc., controls the admissibility of evidence at the 

punishment phase of a trial:

Sec. 3. Evidence of prior criminal record in all criminal cases after a 

finding of guilty.

(a)(1) Regardless of the plea and whether the punishment be assessed by the 

judge or the jury, evidence may be offered by the state and the defendant as to any 

matter the court deems relevant to sentencing, including but not limited to the prior 

criminal record of the defendant, his general reputation, his character, an opinion 

regarding his character, the circumstances of the offense for which he is being tried, 

and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other 

evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt 

by evidence to have been committed by the defendant or for which he could be held 

criminally responsible, regardless of whether he has previously been charged with or 

finally convicted of the crime or act.
BRIEF OF APPELLANT, CHRISTIAN

PAGE 4

Id., sec. 3(a)(1). Further, Article 37.07, section 3(g) incorporates the notice requirement of 

Rule 404(b), Tex. R. Evid., and provides that the State must give a defendant reasonable 

notice of its intent to introduce extraneous-offense evidence at punishment. The statute

further provides that notice is reasonable “only if the notice includes the date on which and 

the county in which the alleged crime or bad act occurred and the name of the alleged victim 

of the crime or bad act.” Article 37.07, Tex. Crim. Proc., section 3(g). The purpose of the 

notice requirement is to prevent unfair surprise to the defendant. See: Nance v. State, 946 

S.W. 2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d); Olson v. State, No. 02-14-

00143-CR (Tex. App.—Fort Worth, dec’d April 23, 2015) (unpublished). When the trial 

court (instead of a jury) assesses punishment, it may determine that an extraneous offense is 

relevant to punishment and admit such evidence, but the court may then only consider the 

extraneous offense in assessing punishment if it finds the offense was proven beyond a 

reasonable doubt. Williams v. State, 958 S.W. 2d 844,845 (Tex. App.—Houston (14

th Dist.) 

1997, pet. ref’d); Mitchell v. State, 931 S.W. 2d 950 (Tex. Crim. App. 1996); Johnson v. 

State, Nos. 14-14-00209-CR, 14-14-00210-CR (Tex. App. –Houston (14th Dist.) dec’d 

March 10, 2015)(unpublished).

In the instant case, the Court relied on its own knowledge, which amounts to facts 

not in evidence—and certainly not proven in the courtroom and on the record, and thus 

subject to potential appellate review. This “evidence,” existing outside of the record, could 

not be subject to the standard, statutorily required, of being proven beyond a reasonable

doubt. The Appellant had no notice of what this “knowledge” of the Court entailed; even as 

the Court stated this as a basis for its sentencing decision, the “knowledge” remained 

obscure. 
BRIEF OF APPELLANT, CHRISTIAN

PAGE 5

This “knowledge,” however, translated into the Court’s stating that the Appellant 

“liked” being a criminal and a member of a gang, and was averse to any effort to change 

from these predilections. This becomes tantamount to punishing the Appellant not for the 

offense for which he was convicted, or even for specific extraneous acts, but for being a 

criminal generally. This has long been deemed improper by the appellate judiciary in Texas. 

See, e.g., Segundo v. State, 270 S.W. 3d 79, 87 (Tex. Crim. App. 2008); Aldor v. State, 871 

S.W. 2d 726, 738 (Tex. Crim. App. 1994); and Wilkerson v. State, 736 S.W. 2d 656, 659 

(Tex. Crim. App. 1987).

PRAYER

The Appellant respectfully requests this case be reversed and remanded for a new 

hearing on punishment. 

Respectfully submitted,

__/s/ Clement Dunn_______________

140 East Tyler Street, Suite 240

Longview, Texas 75601

(903) 753-7071 Fax: 903-753-8783

State Bar No. 06249300
BRIEF OF APPELLANT, CHRISTIAN

PAGE 6

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this brief was delivered to the Gregg 

County District Attorney=s Office, Longview, Texas on this 7

th

 day of May 2015.

__/s/ Clement Dunn_______________

CERTIFICATE OF WORD COUNT

I hereby certify that a total of 1746 words are included in this brief.

__/s/ Clement Dunn_______________