NO.06-14-00217-CR 1N THE COURT OFAPPEALS FORTHE SIXTH JUDICIAL DISTRICT OFTEXAS 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 ATTORNEYAT 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

CLERKTABLE OF CONTENTS Page TABLE OF CONTENTS.....................................................................................2 INDEX OFAUTHORITIES.................................................................................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 EighthAmendment 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 amotion for new trial or motionto arrestjudgment. 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

2INDEX 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.3d469, 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. onmerits, 3 S.W.3d 223 (Tex. App.
- Waco, 1999, pet. refd) ...............................................................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. CODEANN. §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 CountyJail 3101 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: trialjudge, 

### 124th District Court, Gregg COlmty, Texas 101 E. Methvin, Suite 447 Longview, TX 75601 Terri.Shepherd@co.gregg.tx.us (court coordinator)

4STATEMENT OF THE CASE Phyllis Gwen Pruitt (hereinafter referred to as "Appellant") entered an open plea ofguiltyto two COWltS ofPossession ofa Controlled Substance in the I24th District Court onNovember 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 inthe penitentiary and 15 months statejail, sentences to nUl concurrently. R.R. Vol. 1,41. Appellant filed an appeal ofthis sentence. ISSUE PRESENTED Appellant's sentence is not grossly disproportional to the crime committed 

### in violation ofthe Eighth Amendment to the United States Constitution. This is assuming arguendo that trial counsel preserved this argument for appeal, as trial counsel did notobject to the sentence and did not file a motion for new trial or motion to arrestjudgment. STATEMENT OF FACTS Appellant was first indicted for Possession ofa Controlled Substance >=1 gram 

### < 4 grams in cause number 43975-B. C.R. 4 (43975-B). The offense was alleged to have occurred onJanuary 20, 2014. Id. Appellant was subsequently indicted for Possession ofa Controlled Substance less than one gram for an offense alleged to have occurred onJWle 19, 2014. C.R. 4 (44139-B). Appellant pled guilty to bothindictments in an openpleato the trial court onNovember 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 in2005 from Sarasota

5County, Florida for the offense ofpossession with intent to sell; Appellantreceivedprobation and thatprobation was ultimatelyrevoked. Id. at 15. Appellant testified that she hoped the trial court wouldplace her onprobation with drug rehabilitation as a condition ofprobation. 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 drugrehabilitation would better assist her thanbeing sentenced to the penitentiary. Id. at 25. Oncross examination, Appellant testified that in the first offense she was caught in a motel room with 3.4-3.5 grams ofmethamphetamine. Id. at 25-6. She further admitted that the drugs were locatedbypolice in her bra. Id. at 27. She testified that, in both instances, she was inthe 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 ofthe cases, her credit card was found near drugs, used syringes, and used spoons, Appellmlt denied that any ofthe materials, except her credit card, were hers. Id. She later denied purchasing the 3.5 grams ofmethamphetamine, 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 inhertestimony. Id. at 41. He then sentenced Appellant to 7 years and 15 months statejail, sentences to nm concurrently. Id. SUMMARY OF THE ARGUMENT Appellate counsel can locate no arguable grounds for appeal, and as aresult, files the Anders briefwith a corresponding Appellant's Counsel's Motion to Withdraw. A copy ofthe Briefin SuppOli ofMotion to WithdTaw and the corresponding motion has been forwarded to Appellant with a letter explaining what has beendone. See Exhibit A to Appellant's Counsel's Motion to

6Withdraw. Appellanthas been advised she has thirty days to file apro se response or a motion requesting an extension oftime 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. refd). See Appellant's Counsel's Motion to Withdraw. Appellate counsel has thoroughlyread and reviewed the entire appellate record in search ofany arguable grounds oferror to raise that would support either a reversal ofAppellant's sentence or some other form ofrelief. Afterreviewing the record and researching the potential grounds for appeal, appellate counsel is unable to find any error for whichhe, in good faith, can mge a reversal ofher sentence or any other relief. Appellate counsel is aware that he has a dutyto advance all arguable grounds oferror that would Appellant a reversal ofsentence or any other relief. Counsel must demonstrate whythere 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 Comtthe following majorissue reviewed: PRESERVATION OF ERROR Trial counsel appears to have waived this issue for appeal. Trial counsel did not object to the sentence when itwas 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).

7ARGUMENT Appellant's sentence is not grossly disproportional to the crime committed. While the sentences are on the higher end ofthe punishmentrange, 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 arrestjudgment. As long as the sentence falls within the punishment range ofthe statute, then courts have long held that the punishment is not grossly disproportional. SeeJordan 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 guiltyto two indictments for Possession ofa Controlled Substance. The first indictment alleged possession ofless 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 byno less than two years and no more than 10 years in a penitentiary. TEX PEN. CODE ANN. §12.34(a). Forthis 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 statejail felony is punishable byno less than 180 days and no more than two years in a statejail facility. TEX PEN. CODE ANN. §12.35(a). Forthis chm'ge, Appellant was sentenced to fifteen months in a statejail facility. R.R. Vol. 1,41. These sentences were orderedto run concurrently. 

### ld. Eventhough a sentence falls within the statutorypunishment range, appellate comis must detel'lnine whether the sentence is grossly dispropoliional under the Appellant's federal 8constitutional 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 ofthe offense compared to the severity ofthe 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 inthe samejurisdiction, and sentences for the same crime in otherjurisdictions. 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 ofthe 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. Theinitial comparison does create an inference that the sentence is grossly disproportional. Based onthe testimony ofAppellant, her criminal history, and the fact that she committed a second felony while out ofbond 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 thisjurisdiction or any otherjurisdiction. 

### PRAYER Wherefore, premises considered, appellate counsel respectfully requests thatAppellant's Counsel's Motion to Withdraw as Counsel be granted or for such other and further reliefto whichAppellant maybe entitled. Respectf'ully submitted, Kyle Dansby Attorney at Law P.O. 1914 9Marshall. TX 75671 (903) 738-6162 (888) 410-1583 (fax) kdansbylaw@gmail.com /s/ Kyle Dansby

Kyle Dansby State BarNo: 24059180 Attorney for Appellant

CERTIFICATE OF COMPLIANCE I certifythat this briefcontains 1,562 words according to the computerprogramused to prepare this document.

CERTIFICATE OF SERVICE /s/ Kyle Dansby Kyle Dansby

A copy ofthis briefwas sent via email to ZanBrown, attorney for Appellee, onthe 24th day of February, 2015. /s/ Kyle Dansby Kyle Dansby

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