i 

NO. 13-15-00208-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. 14-7-9253

in the 24th 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

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 8/3/2015 12:34:32 PM CECILE FOY GSANGER Clerk
ii

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

24th Judicial District Court, Jackson County Courthouse

115 West Main Street

Edna, Texas 77957

Email: kwilliams@cscd.net

Trial Judge
iii

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 AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . 4

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

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

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

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . 9
iv

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 [14th 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 

(5th 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) . . . . . . . . . . . . . . . . . . . . . . . 4
v

Solem, 463 U.S. at 290-91, 103 S.Ct. 3001 (1983) . . . . . . 5, 6

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

(Tex.App.-Houston [1st 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 
1

NO. 13-15-00208-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. 14-7-9253

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, requesting 
2

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 the instant driving while 

intoxicated offense for which appellant was convicted in this cause 

she had been convicted of three misdemeanor driving while 
3

intoxicated offenses, two felony driving while intoxicated offenses, 

driving while her license was suspended, 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 UNUSUAL 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 AUTHORITIES

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, unusualness 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 appellant 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 know 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.-Houston 
5

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

479 (Tex.App.-Corpus Christi 1989, pet. ref’d), and Mercado 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 Court 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 the 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, twentyfive years in prison is not a grossly disproportionate 

sentence considering the evidence 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 unusual punishment.

Since Trevino involved a different type of offense, the State 

points out that Harris v. State, 204 S.W.3d 19 (Tex.App.-Houston 

[14

h Dist.] 2006, pet. ref’d) addressed the issue of proportionality 
7

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

enhanced driving while intoxicated offense was not cruel and unusual 

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 limits 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 applicable 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’s 
8

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, Attorney for Appellant at lawbill0994@att.net.

Robert E. Bell, District Attorney, Jackson County Courthouse, 

115 West Main Street, Edna, Texas 77957, Attorney for Appellee, at 

ef_mitchell@yahoo.com.

Honorable Stephen Williams, District Judge, 24th 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 2,749 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