i NO. 13-15- 00 208- CR

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

IN THE COURT OF APPEALS
THIRTEENTH DISTRICT CORPUS CHRISTI, TEXAS
* * * * * * * * * * * * * * * * * * * * * * * * * * * *

VIRGINIA FAYE HOLLOWAY
, APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE
* * * * * * * * * * * * * * * * * * * * * * * * * * * * On Appeal from Cause No. 14-7-9 253
in the 24 th Judicial District Court of Jackson County, Texas
* * * * * * * * * * * * * * * * * * * * * * * * * * * *

STATE’S REPLY BRIEF

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

ROBERT E. BELL
District Attorney

State Bar Card No. 02086200

Jackson County Courthouse
115 West Main Street Edna, Texas 77957

JIM VOLLERS
State Bar Card No. 20609000

2201 Westover Road Austin, Texas 78703

ATTORNEYS FOR THE STATE ACCEPTED
13-15-00208-CR
THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS
8/3/2015 12:34:32 PM
CECILE FOY GSANGER

CLERKii

IDENTITY OF PARTIES AND COUNSEL

1. Robert E. Bell Criminal District Attorney, Jackson County
State Bar Card No. 02086200 Jackson County Courthouse

115 West Main Street Edna, Texas 77957
Email: ef_mitchell@yahoo.com

Jim Vollers Attorney at Law
State Bar Card No. 20609000
2201 Westover Road Austin, Texas 78703
Email: jimvollers@att.net Attorneys for the State

2. Virginia Faye Holloway Appellant

3. W. A. Bill White Attorney at Law
State Bar Card No. 00788659

P. O. Box 7422 Victoria, Texas 77903
Email: lawbill0994@att.net Attorney for Appellant

4. Honorable Stephen Williams, District Judge

24 th Judicial District Court, Jackson County Courthouse

115 West Main Street Edna, Texas 77957
Email: kwilliams@cscd.net Trial Judgeiii TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . ii

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

. . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

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

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

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . .

. . . . 2

APPELLANT’S ISSUE PRESENTED (RESTATED) . . . . . . . . . . . . 3

APPELLANT’S SENTENCE OF 10 YEARS IN PRISON

CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT AN D AUTHORITIES . . . . . . . . . . . . . . . . . . . . . 4

PRESERVATION OF ERROR . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . 9iv INDEX OF AUTHORITIES

CASES : PAGE

Contreras v. State , 369 S.W.3d 689 ( Tex.App.

- Tyler 2012) . . . . . . . . . . . . . . . . . . . . . . 6

Harmelin v. Michigan , 501 U.S. 957, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991) . . . . . . . . . . . . . . . . . . . . . 5, 6

Harris v. State , 656 S.W.2d 481 (Tex.Crim.App. 1983) . . 5

Harris v. State , 204 S.W.3d 19 (Tex.App.

- Houston [14 th Dist] 2006, pet. ref’d). . . . . 6, 7

Jordan v. State , 495 S.W.2d 949 (Tex.Crim.App. 1973). . 5

Keeter v. State , 175 S.W.3d 756, 760 (Tex.Crim.App. 2005)

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

McGruder v. Puckett , 954 F.2d 313, 315

- 16 (5 th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mercado v. State , 718 S.W.2d 291 (Tex.Crim.App. 1986)(en banc) . . . . . . . . . . . . . . . . 5

Quintana v. State , 777 S.W. 2d 474, 479 (Tex.App.

- Corpus Christi 1989, pet. ref’d) . . . . . . . . . 5

Rummel v. Estelle

, 445 U.S. 263

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

Samuel v. State , 477 S.W.2d 611 (Tex.Crim.App. 1972). . 5

Simmons v. State , 944 S.W.2d 11, 14 (Tex.App.

- Tyler 1996, pet. ref’d) . . . . . .

. . . . . . . . . 6

Smith v. State , 721 S.W.2d 844, 855 (Tex.Crim.App. 1986) . . . . . . . . . . . . . . . . . . . . . . . 4v

Solem , 463 U.S. at 290

- 91, 103 S.Ct. 3 001 (1983) . . . . . . 5 , 6

Solis v. State , 945 S.W.2d 300, 301 (Tex.App.

- Houst on [1 st Dist.] 1997, pet. ref’d). . . . . . 4

Sullivan v. State , 975 S.W.2d 755, 757

- 58 (Tex.App.

- Corpus Christi 1998, no pet.) . . . . . . . . . . 6

Trevino v. State , 174 S.W.3d 925 (pet. ref’ d) . . . . . . . . . 4, 5 , 6

TEXAS RULES OF APPELLATE PROCEDURE :

Rule 33.1(a)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 NO. 13

- 1 5

- 00 208

- CR

IN THE COURT OF APPEALS

THIRTEENTH DISTRICT

CORPUS CHRISTI, TEXAS

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

VIRGINIA FAYE HOLLOWAY
,

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

* * * * * * * * * * * * * * * * * * * * * * * * * * * * On Appeal from Cause No. 1 4

- 7

- 9 25 3
in the 24th Judicial District Court of Jackson County, Texas
* * * * * * * * * * * * * * * * * * * * * * * * * * * *

STATE’S REPLY BRIEF

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW, THE STATE OF TEXAS, appellee herein, by

and through the Criminal District Attorney of Jackson County, Texas,

and files this, its reply brief in the above

- styled cause, requesting2

that the judgment of the trial court be in all things affirmed, and as

grounds therefore would show unto the Court the following:

STATEMENT OF THE CASE

Appellant was indicted for the offense of felony driving while

intoxicated. The indictment also alleged a prior felony conviction for

driving while intoxicated making the charge a second degree felony.

Appellant waived a jury and entered her plea of guilty to the court

without a recommendation. (R. Vol. 2, pp. 4

– 8). Appellant pled

true to the enhancement paragraph alleging a prior final felony

conviction for the offense of driving while intoxicated. (R. Vol. 2, p.

8). Evidence was presented to the court by both the State and the

appellant, and at the conclusion of the evidence, the court found

appellant guilty of the offense alleged in the indictment and assessed

punishment at ten (10) years in the Texas Department of Criminal

Justice. (R. Vol. 3, p. 50).

STATEMENT OF FACTS

This record reveals that prior to th e instant driving while

intoxicated offense for which appellant was convicted in this cause

she had been convicted of three misdemeanor driving while3

intoxicated offenses, two felony driving while intoxicated offenses,

driving while her license was suspend ed, assault on a public servant,

retaliation, silent abusive calls to 911 and criminal mischief.

Additionally, she had been charged with two other misdemeanor

driving while intoxicated offenses which were disposed of by

consideration when she pled guilty on other offenses. The evidence

also indicated that she was an alcoholic; however, attempts to treat

her while on probation were unsuccessful.

APPELLANT’S ISSUE PRESENTED (RESTATED)

APPELLANT’S SENTENCE OF 10 YEARS IN PRISON

CONSTITUTES CRUEL AND UNUS UAL PUNISHMENT.

SUMMARY OF THE ARGUMENT

Appellant voiced no objection in the trial court on the grounds

which she now presents and the issue has been waived. Nothing has

been preserved for review. Even if the issue had been preserved for

review, the punishment assessed is within the statutory range of

punishment set by the legislature and, especially in light of

appellant’s prior convictions is not excessive for the offense

committed and is not cruel and unusual punishment.4 ARGUMENT AND AUTHORITIE S

PRESERVATION OF ERROR

This record is clear that appellant made no objection to her

sentence to the trial court either at sentencing or at any post

- trial

motion, nor did she ever lodge an objection, under constitutional or

other grounds, to the alleged disparity, cruelty, unusua lness or

excessiveness of the sentence. It has long been the rule that even

constitutional claims can be waived by failure to object. Smith v.

State , 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). In order to

preserve an error for appellate review, the appel lant must present a

timely objection to the trial court, state the specific grounds for the

objection, and obtain a ruling. Tex. R. App. P. , Rule 33.1(a), “All a

party has to do to avoid the forfeiture of a complaint on appeal is to

let the trial judge kn ow what he wants, why he thinks himself entitled

to it, and to do so clearly enough for the judge to understand him at

a time when the trial court is in a proper position to do something

about it.” Keeter v. State , 175 S.W.3d 756, 760 (Tex.Crim.App.

2005) . This Court, in Trevino v. State , 174 S.W.3d 925 (pet. ref’d ),

relying upon Solis v. State , 945 S.W.2d 300, 301 (Tex.App.

- Houston5

[1 st Dist.] 1997, pet. ref’d), Quintana v. State , 777 S.W.2d 474,

479 (Tex.App.

- Corpus Christi 1989, pet. ref’d), and Mercad o v.

State , 718 S.W.2d 291 (Tex.Crim.App. 1986)(en banc), concluded

that by failing to object to the trial court’s sentence below, appellant

forfeited his complaint on appeal that his sentence constituted cruel

and unusual punishment. In Trevino , this Cou rt went on to

conclude that even absent forfeiture appellant’s punishment which

fell within the limits prescribed by valid statute was not excessive,

cruel or unusual, citing Harris v. State , 656 S.W.2d 481

(Tex.Crim.App. 1983); Jordan v. State , 495 S.W.2d 949

(Tex.Crim.App. 1973); and Samuel v. State , 477 S.W.2d 611

(Tex.Crim.App. 1972).

In the present appeal, appellant also complains that her

sentence of ten years is disproportionate to the crime. In Trevino

this Court addressed that issue by pointing out:

“ Importantly, as Trevino argues, it has been held that a sentence within the range of punishment may still violate the Eighth Amendment if it is grossly disproportionate to
the offense committed. Solem, 463 U .S. at 290

– 91, 103 S.Ct. 3001 (1983) . However, the viability and mode of application of proportionate analysis in non

- death penalty
cases has been questioned since the Supreme Court's
decision in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct.6

2680, 115 L.Ed.2d 836 (1991 )

. See McGruder v. Puckett, 954 F.2d 313, 315

– 16 (5th Cir.1992) (discussing the various opinions issued in Harmelin, 501 U.S. at 957,
111 S.Ct. 2680

, and their impact on the Solem decision).

In t he present case, even if error had been preserved as to this argument, and assuming for purposes of Trevino's argument the viability of a proportionality review, twenty

five years in prison is not a grossly disproportionate sentence considering the evidenc e presented as to the offense. We need not consider its application today because the proportionality issue was not preserved and
because no evidence as to the last two Solem factors was
submitted to the trial court. See Solem, 463 U.S. at 292,
103 S.Ct. 3001 ; Sullivan v. State, 975 S.W.2d 755, 757

– 58 (Tex.App.

- Corpus Christi 1998, no pet.) ; Simmons v. State, 944 S.W.2d 11, 14 (Tex.App.

- Tyler 1996, pet. ref'd) .” ( Trevino , supra, 174 S.W.3d 928, 929)

It appears that the issues involved in Trevino , supra, and the

instant case are very similar. The only difference being that Trevino

dealt with a different offense. However, in Contreras v. State , 369

S.W.3d 689 (Tex.App.

- Tyler 2012 ), the court found that a nine year

sentence for driving while intoxicated was more serious than the

sentence in Rummel v. Estelle

, 445 U.S. 263

, but did not constitute

cruel and un u sual punishment.

Since Trevino involved a different type of offense, the State

p oints out that Harris v. State , 204 S.W.3d 19 (Tex.App.

- Houston

[1 4 h Dist.] 2006, pet. ref’d ) addressed the issue of proportionality7

and found that a sentence of 25 years for a conviction of an

enhanced driving while intoxicated offense was not cruel and u nusual

punishment. In that cause, the appellant had five prior DWI

convictions, two of which were felonies. In addition for two other

offenses, the Harris court pointed out that under a recidivist statute,

a sentence is based not merely on that defendant ’s most recent

offense but also on the propensities he demonstrated over a period

of time during which he had been convicted and sentenced for other

crimes. That court noted that if the trial court assesses punishment

within the statutorily prescribed lim its on an individual who has

demonstrated a prolonged and pronounced inability to bring his

conduct into conformity with the criminal laws of the State of Texas,

the punishment is not cruel and unusual.

The Harris court holding and comments are applicab le to the

facts of the instant case.

CONCLUSION

Since the issue raised by appellant in this cause has been

waived by a failure to preserve the issue for review, and for the

further reason that even if properly presented for review appellant’s8

punishment is not cruel and unusual in this cause, the judgment of

the trial court should be in all things affirmed.

Respectfully submitted,

Robert E. Bell District Attorney
State Bar Card No. 02086200 Jackson County Courthouse

115 W . Main Street Edna, Texas 77957

/s/ Jim Vollers_______________
Jim Vollers
State Bar Card No. 20609000
2201 Westover Road Austin, Texas 78703

ATTORNEYS FOR THE STATE

CERTIFICATE OF SERVICE

I hereby certify that on this the 3 rd day of August , 2015 , a true and correct copy of the foregoing was served electronically through the electronic filing manager on the party listed below:

W.A. Bill White, Attorney at Law, P. O. Box 7422 , Victoria, Texas 77903, A ttorney for A ppellant at lawbill0994@att.net

.

Robert E. Bell, District Attorney, Jackson County Courthouse, 115 West Main Street, Edna, Texas 77957, A ttorney f or A ppellee, at ef_mitchell@yahoo.com

.

Honorable Stephen Williams, District Judge, 24 th Judicial District Court, Jackson County Courthouse, 115 West Main Street, Edna, Texas 77957, Trial Judge, at kwilliams@cscd.net

.9

If the email of the party or attorney to be served was not on file with the electronic filing manager, the pleading was served by
email.

/s/ Jim Vollers
Jim Vollers

CERTIFICATE OF COMPLIANCE

I certify that this document contains 2,7 49 words (counting all

parts of the document).

/s/ Jim Vollers

________________ Jim Vollers
2201 Westover Rd. Austin, Texas 78703 (512) 478

- 6846
SBN 20609000 JimVollers@att.net

COUNSEL OF RECORD