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

CLERKIDENTI TY 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

iTABLE OF CONTENTS

I DENTITY OF P ARTIES AND C OUNSEL

................................ ................................ ......................... i

T ABLE OF C ONTENTS

................................ ................................ ................................ ................ ii

I NDEX OF A UTHORITIES

................................ ................................ ................................ ........... iii

S TATEMENT OF THE CASE

................................ ................................ ................................ ...... 1

S TATEMENT REGARDING ORAL ARGUMENT

................................ ................................ .... 1

ISSUE PRESENTED

................................ ................................ ................................ ....................... 1

STATEMENT OF THE FAC TS

................................ ................................ ................................ ......... 1

SUMMARY OF THE ARGUM ENT

................................ ................................ ................................ ... 2

ARGUMENT

................................ ................................ ................................ ............................... 2

PRAYER

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

CERTIFICATE OF SERVICE

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

CERTIFICATE OF WORD COUNT

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

iiINDEX OF AUTHORITIES

Cases

Nance v. St a t e , 946 S.W. 2d 490, 493 (Tex. App.

— Fort Wor th 1997, pet. r ef ’ d)

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

Olson v. Stat e , 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 (14 th Dist.) 1997, pet. ref ’ d).

. 4

Mitchell v. S t ate , 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 (14 th 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. P roc. sec. 3(a)(1)

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

Article 37.07, Tex. Crim. P roc. , se ction 3(g)

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

iiiBRIEF OF APPELLANT, CHRISTIAN

PAGE 1 STATEMENT OF THE CASE

Offense: Escap e F rom Custody

Verdict: Guilty; three hundred t hirty (330 ) day s confinement

– County Jail.

Date of Verdict: October 2 0, 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 St ate and the Appellant regarding punishment; this

entailed an “ open ” plea

. I d. A t the end of the hearing, the C o urt imposed a sentence of three

hundred

- thirty days in the county jail, a four

- hundred dollar fine and costs of court. I d. , 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

assessmen t of sentences

.

STATEMENT OF THE FACTS

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

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

PAGE 2 that he's had a prior probation that wa s 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 ow n knowledge of Mr. Sibley through the
years. Mr. Sibley, you just like bein g 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 s ame 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

assertion s that do not properly inform the sentencing decision

.

ARGUMENT

As noted above, the Trial Court stated :

I ’ m just go i ng to consider the offense report, the pre

- sentence reports

— which has a history of misdemeanor convictions

— and the Court ’ s own knowledge of Mr. Sibl ey through the years

.

R.R., at 13

- 14. When the Court says it is “ go ing 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. T he context of this statement strongly indicates that this amounts to

something beyond matters in evidence before the Court

— i. e., the a fore

- mentioned offenseBRIEF OF APPELLANT, CHRISTIAN

PAGE 3

report, pre

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

Sibley “ t hrough 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

doe s 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 “ like s ” being a criminal , or “ wanting ” to be one. Similarly, nothing shows the

Appellant resistant to efforts at rehabilitation.

Article 37.07, Tex. Crim. P roc. , control s 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 gui lty. (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 crimi nal 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 st a tute

further provides that notice i s r easonable “ 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 vict im

of the crime or bad act. ” Article 37.07, Tex. Crim. P roc. , se ction 3(g). The purpose of the

notice requirement is to prevent u nfair surprise to the defendant. See: Nance v. St a t e , 946

S.W. 2d 490, 493 (Tex. App.

— Fort Wor th 1997, pet. r ef ’ d); Olson v. Stat e, 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 off ense was proven beyond a

reasonable doubt. Williams v. State , 958 S

. W . 2d 844,845 (Tex. App.

— Houston ( 1 4 th Dist.)

1997, pet. ref ’ d); Mitchell v. S t ate , 931 S.W. 2d 950 (Tex. Crim. App. 1996); Johnson v.

State

, Nos. 14

- 14

- 00209

- CR, 14

- 14

- 00210

- CR (Tex. App.

– Houston (14 th Dist.) dec ’ d

March 10, 2015)(unpublished).

In the inst ant 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 reco rd

, and thus

subject to potential appellate review. T his “ 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 ” rema ined

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 g ang , a nd was averse to any effort to change

from the se predilections

. This becomes tantamount to punishing the Appellant not for the

of fense 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 remand ed 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. 06249300BRIEF 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_______________