NO.06-14-00217-CR 

1N THE COURT OF APPEALS 

FOR THE 

SIXTH JUDICIAL DISTRICT OF TEXAS 

PHYLLIS GWEN PRUITT 

Appellant 

v. 

STATE OF TEXAS 

Appellee 

APPEALED FROM THE 124'h JUDICIAL DISTRICT COURT 

OF GREGG COUNTY, TEXAS 

TRIAL COURT NO. 44139-B 

BRIEF OF APPELLANT 

KYLE DANSBY 

ATTORNEY AT LAW 

P.O. BOX 1914 

MARSHALL, TX 75671 

(903) 738-6162 

(888) 410-1583 (FAX) 

kdansbylaw@gmail.com 

STATE BARNO: 24059180 

1 

ACCEPTED

06-14-00217-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

2/26/2015 9:43:45 AM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 2/26/2015 9:43:45 AM DEBBIE AUTREY Clerk
TABLE OF CONTENTS 

Page 

TABLE OF CONTENTS ..................................................................................... 2 

INDEX OF AUTHORITIES ................................................................................. 3 

IDENTIFICATION OF PARTIES .......................................................................... 3 

STATEMENT OF THE CASE ................................................................................... 5 

ISSUE PRESENTED .......................................................................................... 5 

Appellant's sentence is not grossly disproportional to the crime committed in violation of 

the Eighth Amendment to the United States Constitution. This is assuming arguendo that trial 

counsel preserved this argument for appeal, as trial counsel did not object to the sentence and did 

not file a motion for new trial or motion to arrest judgment. 

STATEMENT OF FACTS ................................................................................... 5 

SUMMARY OF THE ARGUMENT.. ..................................................................... 6 

PRESERVATION OF ERROR .............................................................................. 7 

ARGUMENT ................................................................................................... 8 

PRAyER ............................................................................................................ 9 

CERTIFICATE OF COMPLIANCE ...................................................................... 10 

CERTIFICATE OF SERVICE ............................................................................. 10 

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INDEX OF AUTHORITIES 

CASES: 

Harmelin v. Michigan, 501 U. S. 957 (1991) ............................................................... 9 

Solemv. Helm, 463 U.S. 277, 291-92 (1983) .............................................................. 9 

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied ....................................... 9 

Currie v. State, 516 S. W.2d 684 (Tex. Crim. App. 1974) ................................................ 7 

High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978) ............................................ 7 

Jordan v. State, 495 S.W.2d 949,952 (Tex. Crim. App. 1973) ......................................... 8 

Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet) ........................... 7 

Escochea v. State, 139 S.W.3d 67, 80 (Tex. App.-Corpus Christi 2004, no pet.) ..................... 8 

Jacoby v. State, 227 S.W.3d 128,130 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) ............. 7 

Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.-Texarkana 2006, no pe!.) ......................... 9 

Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.-Corpus Christi 2005, pet. ref'd) .................. 8 

Wilson v. State, 955 S.W.2d 693 (Tex. App. - Waco 1997, order), disp. on merits, 3 S.W.3d 223 

(Tex. App. - Waco, 1999, pet. ref d) ............................................................... 7 

Winchester v. State, 246 S.W.3d 386,388 (Tex. App.-Amarillo 2008, pet. ref'd) .................... 9 

STATUTES: 

TEX. HEALTH & SAFETY CODE ANN. §481.115(a) (West 2013) ................................. 8 

TEX. HEALTH & SAFETY CODE ANN. §481.115 (b) (West 2013) ................................ 8 

TEX. PEN. CODE ANN. § 12.34(a) (West 2013) ......................................................... 8 

TEX. PEN. CODE ANN. § 12.35(a) (West 2013) ......................................................... 8 

TEX. R. APP. P. 33.l(a)(I) .................................................................................. 7 

IDENTIFICATION OF PARTIES 

Phyllis Gwen PlUitt: Appellant 

Gregg County Jail 

3 
101 E. Methvin, Suite 635 

Longview, TX 75601 

Kyle Dansby: Trial counsel for Appellant 

P.O. Box 1914 

Marshall, TX 75671 

kdansbylaw@gmail.com 

Kyle Dansby: Appellate counsel for Appellant 

P.O. Box 1914 

Marshall, TX 75671 

kdansbylaw@gmail.com 

Chris Botto: Assistant District Attorney at open plea & sentencing 

Gregg County District Attorney's Office 

101 E. Methvin, Suite 333 

Longview, TX 75601 

chris.botto@co.gregg.tx.us 

Zan Brown: Assistant District Attorney on appeal 

Gregg County District Attorney's Office 

101 E. Methvin, Suite 333 

Longview, TX 75601 

zan.brown@co.gregg.tx.us 

Alfonso Charles: trial judge, 124th District Court, Gregg COlmty, Texas 

101 E. Methvin, Suite 447 

Longview, TX 75601 

Terri.Shepherd@co.gregg.tx.us (court coordinator) 

4 
STATEMENT OF THE CASE 

Phyllis Gwen Pruitt (hereinafter referred to as "Appellant") entered an open plea of guilty to two 

COWltS of Possession of a Controlled Substance in the I 24th District Court on November 24, 

2014. C.R. 18 (43975-B);C.R, 8 (44139-B); R.R. Vol. 1,5. After receiving all exhibits into 

evidence, and after hearing all the evidence, the trial court sentenced Appellant to 7 years in the 

penitentiary and 15 months state jail, sentences to nUl concurrently. R.R. Vol. 1,41. Appellant 

filed an appeal of this sentence. 

ISSUE PRESENTED 

Appellant's sentence is not grossly disproportional to the crime committed in violation of the 

Eighth Amendment to the United States Constitution. This is assuming arguendo that trial 

counsel preserved this argument for appeal, as trial counsel did not object to the sentence and did 

not file a motion for new trial or motion to arrest judgment. 

STATEMENT OF FACTS 

Appellant was first indicted for Possession of a Controlled Substance >= 1 gram < 4 grams in 

cause number 43975-B. C.R. 4 (43975-B). The offense was alleged to have occurred on January 

20, 2014. Id. Appellant was subsequently indicted for Possession of a Controlled Substance less 

than one gram for an offense alleged to have occurred on JWle 19, 2014. C.R. 4 (44139-B). 

Appellant pled guilty to both indictments in an open plea to the trial court on November 27, 

2014. R.R. Vol. 1,5. Appellant testified. She testified she was 56 years old and primarily 

cleaned houses for a living. R.R. Vol. I, 14. Appellant testified she had two felony convictions. 

Id. at 14-5. The first felony conviction was in 1994 from the Louisiana; Appellant received and 

successfully completed probation. Id. The second felony conviction was in 2005 from Sarasota 

5 
County, Florida for the offense of possession with intent to sell; Appellant received probation 

and that probation was ultimately revoked. Id. at 15. Appellant testified that she hoped the trial 

court would place her on probation with drug rehabilitation as a condition of probation. Id. at 20. 

Appellant testified that her drug use could stem from being molested as a child. Id. at 22-3. 

Appellant stated that she felt probation with drug rehabilitation would better assist her than being 

sentenced to the penitentiary. Id. at 25. 

On cross examination, Appellant testified that in the first offense she was caught in a motel room 

with 3.4-3.5 grams of methamphetamine. Id. at 25-6. She further admitted that the drugs were 

located by police in her bra. Id. at 27. She testified that, in both instances, she was in the wrong 

place at the wrong time. Id. at 28. She stated she does not use drugs intravenously. Id. at 29. 

When she was asked why, in one of the cases, her credit card was found near drugs, used 

syringes, and used spoons, Appellmlt denied that any of the materials, except her credit card, 

were hers. Id. She later denied purchasing the 3.5 grams of methamphetamine, and testified the 

drugs were handed to her. Id. at 31. Appellant also later denied selling drugs. Id. at 32. 

The trial court noted that he did not think Appellmlt was being fully truthful in her testimony. Id. 

at 41. He then sentenced Appellant to 7 years and 15 months state jail, sentences to nm 

concurrently. Id. 

SUMMARY OF THE ARGUMENT 

Appellate counsel can locate no arguable grounds for appeal, and as a result, files the Anders 

brief with a corresponding Appellant's Counsel's Motion to Withdraw. A copy of the Brief in 

SuppOli of Motion to WithdTaw and the corresponding motion has been forwarded to Appellant 

with a letter explaining what has been done. See Exhibit A to Appellant's Counsel's Motion to 

6 
Withdraw. Appellant has been advised she has thirty days to file a pro se response or a motion 

requesting an extension of time in which to file the response, pursuant to Wilson v. State, 955 

S.W.2d 693 (Tex. App. - Waco 1997, order), disp. on merits, 3 S.W.3d 223 (Tex. App. - Waco, 

1999, pet. ref d). See Appellant's Counsel's Motion to Withdraw. 

Appellate counsel has thoroughly read and reviewed the entire appellate record in search of any 

arguable grounds of error to raise that would support either a reversal of Appellant's sentence or 

some other form of relief. After reviewing the record and researching the potential grounds for 

appeal, appellate counsel is unable to find any error for which he, in good faith, can mge a 

reversal of her sentence or any other relief. 

Appellate counsel is aware that he has a duty to advance all arguable grounds of error that would 

Appellant a reversal of sentence or any other relief. Counsel must demonstrate why there are no 

arguable grounds to be advanced. High v. State, 573 S.W.2d 807,812 (Tex. Crim. App. 1978); 

Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974). Therefore, cOIDlsel presents to the 

Comt the following maj or issue reviewed: 

PRESERVATION OF ERROR 

Trial counsel appears to have waived this issue for appeal. Trial counsel did not object to the 

sentence when it was pronounced, and trial counsel did not file a motion for new trial or arrest of 

judgment. Failure to do either oftllese results in a waiver. See Tex.R.App.P. 33.1 (a)(l); Jacoby 

v. State, 227 S.W.3d 128, 130 (Tex. App.-Houston [1st Dist.] 2006, pet. refd); Castaneda v. 

State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet). 

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ARGUMENT 

Appellant's sentence is not grossly disproportional to the crime committed. While the sentences 

are on the higher end of the punishment range, the sentences do not constitute cruel and unusual 

punislullent lmder the Eighth Amendment. This assumes arguendo that trial counsel properly 

preserved this issue for appeal, as trial counsel did not object to the sentence nor did he file a 

motion for new trial or motion to arrest judgment. 

As long as the sentence falls within the punishment range of the statute, then courts have long 

held that the punishment is not grossly disproportional. See Jordan v. State, 495 S.W.2d 949, 

952 (Tex. Crim. App. 1973); Trevino v. State, 174 S.W.3d 925,928 (Tex. App.-Corpus Christi 

2005, pet. reEd); see also Escochea v. State, 139 S.W.3d 67,80 (Tex. App.-Corpus Christi 2004, 

no pet.). Appellant pled guilty to two indictments for Possession of a Controlled Substance. The 

first indictment alleged possession of less tban four grams, but more than one gram. C.R. 4 

(43975-B). This offense is a third degree felony. TEX HEALTH & SAFETY CODE ANN. 

§481.115(c) (West 2013). A third degree felony is punishable by no less than two years and no 

more than 10 years in a penitentiary. TEX PEN. CODE ANN. §12.34(a). For this charge, 

Appellant was sentenced to seven years in the penitentiary. R.R. Vol. 1,41. The second 

indictment alleged possession ofless than one gram. C.R. 4 (44139-B). This offense is a state 

jail felony. TEX. HEALTH & SAFETY CODE ANN. §481.115(b) (West 2013). A state jail 

felony is punishable by no less than 180 days and no more than two years in a state jail facility. 

TEX PEN. CODE ANN. § 12.35(a). For this chm'ge, Appellant was sentenced to fifteen months 

in a state jail facility. R.R. Vol. 1,41. These sentences were ordered to run concurrently. ld. 

Even though a sentence falls within the statutory punishment range, appellate comis must 

detel'lnine whether the sentence is grossly dispropoliional under the Appellant's federal 

8 
constitutional rights. Winchester v. State, 246 S.W.3d 386,388 (Tex. App.-Amarillo 2008, pet. 

ref'd); Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.-Texarkana 2006, no pet.). First, courts 

look at the gravity of the offense compared to the severity of the sentence. Solem v. Helm, 463 

U.S. 277, 291-92 (1983); McGruder v. Puckett, 954 F.2d 313,316 (5th Cir.), cert. denied. 

Appellate courts then consider sentences for similar crimes in the same jurisdiction, and 

sentences for the same crime in other jurisdictions. See Solem, 463 U.S. at 292. In light of 

Harmelin v. Michigan, courts do not address the second and third issue unless the initial 

comparison of the gravity and severity create an inference that the sentence is grossly 

disproportional. Harmelin v. Michigan, 501 U.S. 957 (1991); McGruder, 954 F.2d at 316. 

The initial comparison does create an inference that the sentence is grossly disproportional. 

Based on the testimony of Appellant, her criminal history, and the fact that she committed a 

second felony while out of bond for the first felony, there is no inference that the sentence is 

grossly disproportional. Since no inference is created, the other two elements are not considered, 

and no evidence was placed in the record for the Court to review sentences for the same crime in 

this jurisdiction or any other jurisdiction. 

PRAYER 

Wherefore, premises considered, appellate counsel respectfully requests that Appellant's 

Counsel's Motion to Withdraw as Counsel be granted or for such other and further relief to 

which Appellant may be entitled. 

Respectf'ully submitted, 

Kyle Dansby 

Attorney at Law 

P.O. 1914 

9 
Marshall. TX 75671 

(903) 738-6162 

(888) 410-1583 (fax) 

kdansbylaw@gmail.com 

/s/ Kyle Dansby 

Kyle Dansby 

State Bar No: 24059180 

Attorney for Appellant 

CERTIFICATE OF COMPLIANCE 

I certify that this brief contains 1,562 words according to the computer program used to prepare 

this document. 

CERTIFICATE OF SERVICE 

/s/ Kyle Dansby 

Kyle Dansby 

A copy of this brief was sent via email to Zan Brown, attorney for Appellee, on the 24th day of 

February, 2015. 

/s/ Kyle Dansby 

Kyle Dansby 

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