NO. ___________________

Court of Appeals No. 02-14-00472-CR 

TO THE

COURT OF CRIMINAL APPEALS 

OF TEXAS 

JERMAINE EUGENE WHATLEY

 Petitioner, 

V.

THE STATE OF TEXAS,

Appellee.

PETITION FOR DISCRETIONARY REVIEW

 

Paul Francis

State Bar No. 07359600

P.O. Box 13369

1178 West Pioneer Parkway

Arlington TX 76013-6367 

(817) 543-2600 Telephone 

(817) 549-7098 Facsimile

pfrancis@birch.net E-mail

ATTORNEY FOR PETITIONER,

 JERMAINE EUGENE WHATLEY

PD-0884-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/15/2015 4:09:00 PM

Accepted 7/17/2015 2:13:06 PM

ABEL ACOSTA

CLERK
ii

IDENTITY OF TRIAL JUDGE, PARTIES TO JUDGMENT 

OR ORDER, AND COUNSEL

TRIAL JUDGE: The Honorable Ruben Gonzalez, Jr., 

judge of the 432nd District Court

of Tarrant County, Texas

 

APPELLANT: Jermaine Eugene Whatley

COURT APPOINTED 

COUNSEL ON APPEAL: Paul Francis

1178 W. Pioneer Parkway

Arlington TX 76013

COUNSEL AT TRIAL: George Dewayne Huston

THE HUSTON FIRM, P.C.

100 East 15th Street, Ste 620

Fort Worth, Texas 76102

APPELLEE: The State of Texas

COUNSEL ON APPEAL: Debra Windsor

Assistant District Attorney

Tarrant County Justice Center 

401 W. Belknap

Fort Worth TX 76196-0001

COUNSEL AT TRIAL: Kimberly D’avignon

Tarrant County Justice Center 

401 W. Belknap

Fort Worth TX 76196-0001
iii

TABLE OF CONTENTS

IDENTITY OF TRIAL JUDGE, PARTIES TO JUDGMENT OR 

ORDER, AND COUNSEL ..........................................................................ii

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

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

STATEMENT REGARDING ORAL ARGUMENT ....................................1

STATEMENT OF THE CASE.....................................................................1

STATEMENT OF PROCEDURAL HISTORY ............................................2

GROUNDS FOR REVIEW (ISSUES)...........................................................2

The court of appeals failed to correctly apply the law when it held that the 

trial court did not fail to consider the full range of punishment when the 

thrust of the state’s evidence and argument was that the court should 

sentence the appellant to prison because the complaining witness wanted that 

particular punishment and the trial court participated in and followed such 

recommendation.

ARGUMENT .............................................................................................3

PRAYER FOR RELIEF ............................................................................11

CERTIFICATE OF COMPLIANCE (word count) .....................................12

CERTIFICATE OF SERVICE............................................................12

APPENDIX...............................................................................................13
iv

INDEX OF AUTHORITIES

Cases

Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010)...........................10

Ellison v. State, 201 S.W.3d 714 (Tex. Crim. App. 2006)........................................4

Ex parte Brown, 158 S.W.3d 449 (Tex.Crim.App.2005)..................................9

Fryer v. State, 68 S.W.3d 628 (Tex. Crim. App. 2002) ............................................8

Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014).........................................9

Gross v. State, 730 S.W.2d 104 (Tex.App.-Texarkana 1987, no pet.) ............5

Hayden v. State, 296 S.W.3d 549 (Tex.Crim.App.2009)...................................4

Hughes v. State, 787 S.W.2d 193 (Tex.App.—Corpus Christi 1990, pet. 

ref'd).......................................................................................................................5

Johnson v. State, 987 S.W.2d 79 (Tex.App.-Houston [14th Dist.] 1998, pet. 

ref'd).......................................................................................................................5

Sanchez v. State, 989 S.W.2d 409 (Tex. App.—San Antonio 1999, no pet.)..9

Sattiewhite v. State, 786 S.W.2d 271 (Tex.Crim.App.1989), cert. denied, 498 

U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990)...........................................5

Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003)..............................5

Taylor v. State, 109 S.W.3d 443 (Tex. Crim. App. 2003).........................................5

Teixeira v. State, 89 S.W.3d 190 (Tex.App.-Texarkana 2002, pet. ref'd).......9

Wright v. State, 962 S.W.2d 661 (Tex.App.-Fort Worth 1998, no pet.) .........5

Statutes

Tex.Code Crime. Proc. art. 37.07, § 3(a)(1)........................................................4

Rules

Tex.R.App.P. 66.3(b) ..............................................................................................3
1

NO. _________________________

TO THE

COURT OF CRIMINAL APPEALS 

OF TEXAS

JERMAINE EUGENE WHATLEY

 Petitioner

V.

THE STATE OF TEXAS

Appellee

 

PETITION FOR DISCRETIONARY REVIEW

To the Honorable Court of Criminal Appeals of Texas:

Petitioner, Jermaine Eugene Whatley, submits this petition for 

discretionary review and requests that the Court consider the following 

issues: 

I.

STATEMENT REGARDING ORAL ARGUMENT

Petitioner waives oral argument unless the state is granted oral argument. 

II.

STATEMENT OF THE CASE

APPELLANT, Jermaine Eugene Whatley, was indicted for Aggravated 

Assault with a Deadly Weapon. (CR 5) He entered a plea of guilty to the 
2

indictment with no recommendation as to punishment. (CR- 34-41) The 

court convicted Appellant of Aggravated Assault with a Deadly Weapon, 

ordered a pre-sentence investigation, and held a hearing on punishment on 

November 14, 2014. (RR 1) The court assessed punishment at 15 years

TDC. (CR 45, RR 47) 

III.

STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals assigned case number 02-14-00472-CR. The 

judgment (and opinion) of the Court of Appeals affirming the trial court 

was issued April 23, 2015. Following a motion for rehearing the court of 

appeals issued a new opinion May 28, 2015 affirming the judgment. A copy 

of the judgment and opinion is attached as an Appendix to this Petition. 

The most recent Motion for Rehearing was overruled on June 18, 2015. 

IV.

GROUNDS FOR REVIEW

1. The court of appeals failed to correctly apply the law when it held that 

the trial court did not fail to consider the full range of punishment when the 

thrust of the state’s evidence and argument was that the court should 

sentence the appellant to prison because the complaining witness wanted that 
3

particular punishment and the trial court participated in and followed such 

recommendation. 

The court of appeals has decided an important question of state law 

that has not been, but should be, settled by the Court of Criminal Appeals. 

Tex.R.App.P. 66.3(b) The question is whether and when the trial court’s 

consideration of inadmissible evidence on punishment at the request of the 

state impacting the sentencing decision constitutes a failure to consider the 

full range of punishment.

The Questions for Review: 

1. Does the trial court’s development and consideration of inadmissible 

evidence on punishment impacting the sentencing decision, i.e., the wishes of 

the complaining witness, constitute a failure to consider the full range of 

punishment? 

V.

ARGUMENT

The trial Court Punishment Hearing

The petitioner sought probation. (RR 4, CR 40) The complaining 

witness1 testified at the punishment hearing. (RR 6-30) Following the 

hearing the court sentenced the defendant to 15 years in prison, only 5 years 

 

1 She will be referred to as AB for privacy purposes. 
4

short of the maximum sentence. (RR 47, CR 45) In summary, according to 

the complainant the appellant had not been an alcohol or drug user, or acted 

violently towards her or anyone else, until the two incidents in January, 

2014. (RR 19) The appellant has been a good father to their son. (RR 21) 

He just snapped. The acts of violence were totally out of character for the 

appellant. (RR 22) She said he is a good person, and that everything just 

came together to make him commit the act. (RR 24)

The Law

During punishment, evidence may be offered on matters the trial court 

deems relevant to sentencing. Tex.Code Crime. Proc. art. 37.07, § 3(a)(1).

Relevant evidence in the punishment phase is helpful to the factfinder in 

determining the appropriate sentence for a particular defendant in light of 

the facts of the case. Hayden v. State, 296 S.W.3d 549, 552 

(Tex.Crim.App.2009). 

Although the trial court has great discretion generally in considering 

evidence for purposes of punishment decisions, the determination of what is 

relevant is a policy decision. Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. 

App. 2006) 

As a matter of public policy a witness may not recommend a particular 

punishment to the trier of fact. See Sattiewhite v. State, 786 S.W.2d 271, 
5

290 (Tex.Crim.App.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 226, 112 

L.Ed.2d 181 (1990); see also Hughes v. State, 787 S.W.2d 193, 196 

(Tex.App.—Corpus Christi 1990, pet. ref'd); Simpson v. State, 119 S.W.3d 

262, 272 (Tex. Crim. App. 2003) (“The wishes of the victim's family 

members as to the defendant's fate fall beyond the parameters of victimimpact evidence and are not admissible.”)2

A victim's testimony regarding what punishment should be assessed 

should be excluded from evidence. Wright v. State, 962 S.W.2d 661, 663 

(Tex.App.-Fort Worth 1998, no pet.) (holding testimony was not relevant to 

jury's punishment determination); Hughes v. State, 787 S.W.2d 193, 196 

(Tex.App.-Corpus Christi 1990, pet. ref'd) (same); Gross v. State, 730 

S.W.2d 104, 105–06 (Tex.App.-Texarkana 1987, no pet.); Johnson v. State,

987 S.W.2d 79, 87 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd)

The Record

During the course of her testimony the complaining witness expressed 

her desire that the appellant not be granted probation, but be put 

“somewhere else” meaning prison. (RR 25-26) The trial judge quizzed the 

victim on her desires as to the punishment to be meted out to the appellant 

 

2 Although not admissible, there is no constitutional prohibition against a witness expressing a 

desire for leniency. Taylor v. State, 109 S.W.3d 443, 451 (Tex. Crim. App. 2003)
6

(RR 28) and her reluctance to state it bluntly for fear that she would have to 

explain her recommendation to his child at a later date. The state expressly 

based its closing argument on this request and her concerns and the trial 

court, took pains to divert the blame from the victim to the court in making 

the punishment she had sought. (RR 47) 

The judge not only did not disregard her punishment recommendation, 

but at RR 28 had the following exchange with the complainant: 

THE COURT: All right. It weighs heavily on you making a 

recommendation in terms of the sentencing, correct?

THE WITNESS: Correct.

THE COURT: And that you have to be facing those children, the 

knowledge that you're the one that made the recommendation?

THE WITNESS: Yes. That -- that's what weighs most heavily for 

me.

THE COURT: All right. You understand that's my 

responsibility?

THE WITNESS: Yes.

THE COURT: Okay.

THE WITNESS: And that's why I look to you for you to...
7

At that point the record trails off and the court asked another question. 

From the context it is clear the witness was asking the judge to follow her 

recommendation of prison, but give her cover with her child. 

The trial court did not instruct the witness to refrain from giving 

recommendations. 

The state continued its theme that the court should be guided by the 

desires of the witness. In closing the state, referring to the victim’s testimony 

recommending prison said “And as this Court is aware, women who are put 

in this position are necessarily put in a position where some day they're 

going to have to explain to their children what happened.” (RR 41) 

“And AB told you right here that that is really where her heart is bleeding 

right now. She doesn't know how to say to this Court, Please, I need help, I 

am scared, I need protection, and justify that to her children later. And that's 

why the system is set up like this, because it shouldn't be her job to say, I 

sent him to prison. It's the Court's job to say, We can't trust you out there, 

we're going to take you at your word that you're violent when you commit 

an act like this.” (RR 41-42) And at RR 43 “...we are asking for 20 years 

because that's the most we can get for protection.” 
8

Continuing with her emotional plea to the court to follow the wishes 

of the witness “And so it becomes our job to say we're going to give you 

some peace, we're going to give you some safety.” RR 42-43 

According to the state’s argument it becomes the court’s job to follow 

the desire of the witness to have the appellant imprisoned but to do it in a

way that she can deny to her children that she had anything to do with it. 

Her testimony is in marked contrast to her statement in the PSI at page 

5 that she had no recommendation as to punishment.3

The court of appeals denied there was proof of failure to consider the 

full range of punishment by following the wishes of the complaining witness, 

stating that “The trial judge clearly stated on the record that he was taking 

into account the matters described in the PSI as well as the circumstances of 

the offense in making his decision.” (Page 3 of Opinion)

However this conclusion is undercut by the record which indicates that 

the state itself urged the trial court to follow the wishes of the complainant. 

See RR 41-43. After having specifically presented evidence and argument 

to the court to put the defendant in prison at the request of the complainant, 

the recitation by the court that it considered the PSI (Opinion page 3, RR 46-

 

3 Had she made such a statement in the PSI it would have been admissible solely in that format. 

See Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App. 2002)
9

47) does not cure the damage done or indicate the state’s very asseverations 

had no effect. In fact, the mention in the court’s recitation that “it is not AB

responsibility to sentence you; it's mine” at RR 46 indicates how deeply 

enmeshed her involvement was in the court’s decision. Why would the court 

feel compelled to even make such a comment in the absence of the overriding 

influence her testimony had? 

Failure to consider the full range of punishment is a violation of 

defendant’s due process rights. See Sanchez v. State, 989 S.W.2d 409, 411 

(Tex. App.—San Antonio 1999, no pet.) Consideration of the full range of 

punishment is also an independent duty of the trial court, regardless of lack 

of objection by the defendant. See Grado v. State, 445 S.W.3d 736, 741 (Tex. 

Crim. App. 2014) [“The unfettered right to be sentenced by a sentencing judge 

who properly considers the entire range of punishment is a substantive right 

necessary to effectuate the proper functioning of our criminal justice system.”]

(Emphasis added) 

A court denies due process of law and due course of law when it 

arbitrarily refuses to consider the full range of punishment for an offense or 

refuses to consider the evidence and imposes a predetermined sentence. Ex 

parte Brown, 158 S.W.3d 449, 454 (Tex.Crim.App.2005); Teixeira v. State, 

89 S.W.3d 190, 192 (Tex.App.-Texarkana 2002, pet. ref'd). Finders of fact, 
10

whether trial judges or juries, must consider the full range of punishment. 

Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010) In fact the 

inability to do so is grounds to strike potential jurors. Id. at 185. Inherent in 

that obligation is the responsibility of not considering incompetent evidence 

that has been declared by public policy to not be relevant. Reliance on 

incompetent evidence is, at best, the same as relying on no evidence. At 

worst it distorts the exercise by the court of its responsibility to discharge its 

independent duty and prevents the consideration of the full range of 

punishment. 

Even if a pre-determined sentence has not been promised, at what 

point does the consideration of incompetent evidence and the state’s 

arguments based on it, so taint the punishment process as to violate this 

right, thereby denying the defendant due process of law? 

It is the Petitioner’s position that when the state, as here, adopts the 

strategy of using a complaining witness as an arm of the state to advocate for 

a specific punishment and the witness’s request for a specific punishment is 

developed, delved into by the trial court, and cultivated by the prosecutor 

who then weaves her emotional argument around such an improper request, 

substantial constitutional considerations are implicated and the trial court 

who participates and is influenced has failed to properly consider the full 
11

range of punishment. The court of appeals had the obligation to recognize 

and correct this failure to afford the defendant due process and its failure to 

do so is error which should be corrected by the Court of Criminal Appeals. 

VI.

PRAYER FOR RELIEF

Based on the above and foregoing, the Petitioner respectfully requests 

that the Court of Criminal Appeals, grant the Petition for Discretionary 

Review, and upon consideration of the case to vacate the court of appeals’ 

judgment, find that the trial court failed to properly consider the full range of 

punishment as set out herein, and remand the case to the trial court for a 

new punishment hearing. Petitioner requests all other relief to which he is 

entitled. 

Respectfully submitted,

Law Office of Paul Francis

P.O. Box 13369

1178 W. Pioneer Parkway

Arlington TX 76013-6367

(817) 543-2600 Telephone

(817) 549-7098 Facsimile

pfrancis@birch.net Email

By: /s/ Paul Francis

Paul Francis

State Bar No. 07359600

ATTORNEY FOR PETITIONER,

JERMAINE EUGENE WHATLEY
12

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that the number of words in this 

document, as computed in accordance with Tex.R.App.P. 9.4(i) using the 

Word Count function of Microsoft Word is 1,888.

/s/ Paul Francis

Paul Francis 

CERTIFICATE OF SERVICE

A true and correct copy of the above and foregoing was served upon 

the following persons in accordance with Texas Rule of Appellate Procedure 

9.5, on this July 15, 2015. 

Debra Windsor

Tarrant County Justice Center 

401 W. Belknap

Fort Worth TX 76196-0001

Lisa C. McMinn

State Prosecuting Attorney

P.O. Box 13046

Capitol Station

Austin, Texas 78711

/s/ Paul Francis

Paul Francis 
13

APPENDIX
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00472-CR

Jermaine Eugene Whatley

v.

The State of Texas

§

§

§

§

§

From the 432nd District Court

of Tarrant County (1359834D)

May 28, 2015

Per Curiam

(nfp)

JUDGMENT ON REHEARING

After reviewing appellant’s motion for rehearing, we deny the motion, but 

we withdraw our April 23, 2015 opinion and judgment and substitute the 

following.

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court’s judgment. It is ordered that the judgment of 

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS 

PER CURIAM
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00472-CR

JERMAINE EUGENE WHATLEY APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1359834D

----------

MEMORANDUM OPINION ON REHEARING1

----------

Having considered appellant Jermaine Eugene Whatley’s motion for 

rehearing, we deny the motion, but we withdraw our prior opinion of April 23, 

2015 and substitute the following in its place.

Jermaine Eugene Whatley brings a single point on appeal challenging his 

fifteen-year sentence for aggravated assault with a deadly weapon. Appellant 

 1

See Tex. R. App. P. 47.4.
2

pled guilty pursuant to an open plea, and the trial court sentenced him after 

hearing evidence from the complainant and another witness and after reviewing 

a presentence investigation report (PSI).

Appellant complains that the trial judge improperly based his sentence on 

the complainant’s desire that appellant not be given community supervision. He 

points to part of the State’s closing argument as supporting this conclusion. He 

also complains about the State’s characterizing him as a violent criminal. 

Although appellant did not object at trial to any of these matters, he contends that 

he is not complaining about these matters but instead the trial court’s act of 

basing its punishment on the complainant’s recommendation rather than the law. 

Recognizing that he failed to make the trial court aware of this particular

complaint as well, appellant argues that he has in essence shown that the trial 

court did not consider the full range of punishment and that this type of argument 

need not be raised in the trial court to be preserved on appeal.2

 See Grado v. 

State, 445 S.W.3d 736, 739–43 (Tex. Crim. App. 2014) (holding that the right to 

be sentenced after consideration of the entire applicable range of punishment is 

 2

Appellant also contends that it is not necessary to complain about a trial 

judge’s own action in the trial court, citing Texas Rule of Appellate Procedure 

33.1(c). See Tex. R. App. P. 33.1(c). But this rule states that a party need not 

file a formal exception to a trial court ruling to preserve a complaint about that 

ruling, nor does the ruling need to be made in a signed, separate order for a 

party to be able to complain about it on appeal. Id. In any event, the trial court 

must have made a ruling for the matter to be preserved, as contemplated by rule 

33.1(a)(2). Tex. R. App. P. 33.1(a)(2). Here, the trial court was not given the 

opportunity to make a ruling on the complaint.
3

a category-two Marin right, which must be implemented unless a defendant has 

affirmatively, plainly, freely, and intelligently waived it).

At the conclusion of the trial, the trial judge stated,

After considering the evidence that’s been presented to the 

Court both in the form of the [PSI], your plea of guilty, the Court in 

good conscience cannot place you on probation, not under these 

circumstances.

And it is not [the complainant’s] responsibility to sentence you; 

it’s mine. And she has to face those children, and she faces those 

children with scars on her caused by you. Could have taken her life.

Under the circumstances, the Court hereby sentences -- finds 

you guilty, receives and accepts your plea, finds you guilty, finds the 

deadly weapon to be true, [and] sentences you to 15 years in the 

Institutional Division of the Texas Department of Criminal Justice.

Considering appellant’s argument only to the extent of his complaint that the trial 

judge did not consider the entire applicable range of punishment, we conclude 

and hold that he has not shown that the trial court improperly failed to do so 

simply because the complainant indicated during her testimony that she did not 

want appellant placed on community supervision and the trial court subsequently 

did not place appellant on community supervision. The trial judge clearly stated 

on the record that he was taking into account the matters described in the PSI as 

well as the circumstances of the offense in making his decision. Moreover, the 

prosecutor elicited testimony from the complainant that appellant committed this 

offense while on probation for committing a prior assault against the complainant, 

a matter which the PSI officer considered a factor against the imposition of 

community supervision.
4

We overrule appellant’s sole point and affirm the trial court’s judgment.

PER CURIAM

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: May 28, 2015