1 CAUSES 13

- 15

- 00374

- CR

IN THE TH IR TEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT

CORPUS CHRISTI, TEXAS

VINCENT ORISBEL BARRERA

, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

APPELLANT’S BRIEF

Trial Cause 14 -9- 9313

Jackson Co. District Court

Submitted by

W. A. (BILL) WHITE

Attorney for Appellant

POB 7422, Victoria, TX 77903

(361) 575

- 1774 voice & fax

TBN 00788659

ORAL ARGUMENT NOT REQUESTED

13-15-00374-CR ACCEPTED

13-15-00374-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

9/15/2015 4:33:27 PM

Dorian E. Ramirez

CLERK2 IDENTITY OF PARTIES AND COUNSEL

Appellant was repre sented at trial by Brenna Crane,

Attorney at Law, 302 West Forr est St. , Victoria, TX

77901

. Appellant is represented on appeal by W. A.

(Bill) White, Attorney at Law, POB 7422, Victoria, TX

77903

- 7422.

During trial , appe l lant was a resident of Jackson

County , Texas. Appellant is currently incarcerated in

IDTDCJ.

The State was repre sented at trial by Robert E.

Bell, D. A., of the Jackson County District Attorney’s

Office, 115 W. Main Street, Room 205, Edna, TX 77957

. App ellant anticipates that Jim Vollers , Attorney at

Law, 2201 Westover Road, Austin, TX 78703, will handle

the State’s reply brief in this cause.3 TABLE OF CONTENTS

Page

Index of Authorities 4

Appellant’s Brief 5

Statement of Case and Statement of Facts 5

Issue Presented 6

Summary of Argument 6

Argument 6

Sole Issue 6

Prayer 8

Certificate of Service 9

Certificate of Compliance 94 INDEX OF AUTHORITIES

Cases Page

Coker v. Georgia

, 433 U.S. 584 (1977) 8

Solem v. Helm

, 463 U.S. 277 (1983) 8

Tro p v. Dulles, 356 U.S. 86 (1958) 8

Weems v. United States

, 217 U.S. 349 (1910) 7

Constitutional Provisions

U.S. Const. amend VIII 85 CAUSE 13

- 15

- 00374

- CR

Trial Cause 14

- 9

- 9313

VINCENT ORISBEL BARRERA IN THE THIRTEENTH

VS. COURT OF APPEALS AT

THE STATE OF TEXAS CORPUS CHRISTI, TEXAS

APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW A PPELLANT, VINCENT ORISBEL BARERA

,

through counsel, W. A. (BILL) WHITE, Attorn ey at Law,

show ing :

STATEMENT OF CASE AND STATEMENT OF FACTS

Appe llant was indicted in September 2014 for

tampering with physical evidence, a third degree

felony

. The indictment alleged four pr ior felony

conviction s in enhancement paragraph s , making the

offense that of habitual felon (2 5 to 99 years or life

in IDTDCJ ). The indicted crime was alleged to have

occurred on or about 7/24 /14 in Jackson County, Texas.

Ap pellant, with counsel, pled “ not guilty ” t o his

indictment without plea agreement on 7/1 5 /15 in open6

court , and “true” to the four enhancement paragraphs.

(RR Vol. 2, pp. 9

- 12). All i ssue s of guilt/innocence

and punishment were tried before the bench on 7 / 1 5 / 1 5

a n d 7/16/15 , without a jury . At the conclusion of

evidence and argument, the trial court found appellant

guilty of the indicted offense and assessed punishment

at 4 0 years in IDTDCJ

. (RR Vol. 3, pp. 10

- 11)

ISSUE PRESENTED

APPELLANT’S SENTENCE OF 4 0 YEARS IN PRISON FOR THIS

CRIME CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

SUMMARY OF ARGUMENT

Appellant shou ld have received a prison sentence

shorter than 4 0 years for this theft

- related crime

under evolving standards of decency echoed in the

eighth amendment.

ARGUMENT

SOLE ISSUE

Appellant visited a convenience store in Jackson

County on 7/24/14 in the daytime during an hour when7

the store had no patrons, only owners and employees. A

child of the owners had left her cell phone sitting on

the edge of a beer tray inside the store an d walked

off. Appellant took the phone and later, according to

the State, removed and erased its “sim” card, scrubbing

the phone of all ownership indicia (pho tos, screensaver

art, contacts, text messages, etc.). According to the

State, this “scrubbing” o f the sim card amounted to

tampering with physical evidence.

An objection on grounds of cruel and unusual

punishm ent grounds was rais ed by trial cou nsel when

appellant was sentenced to 4 0 years in prison. This

objection was overruled by the trial court. (RR Vol. 3,

p. 11). A 40

- year sentence is disproportionate to

appellant’s offense in this cause.

The constitutional principal of proportionality has

been recognized explicitly in the U.S. Supreme Court

for over a hundred years. See generally Weems v. United

States, 217 U.S. 349 (1910). A criminal sentence must

be proportionate to the crime for which the defendant8

has been convicted. Solem v. Helm, 463 U.S. 277, 291

(1983). A court must consider the severity of the

penalty in deciding whether it is di sproportionate.

See, e.g., Coker v. Georgia, 433 U.S. 584, 598 (1977).

The prohibition again st cruel and unusual punishment is

contained with in the eight h amendment to our federal

constitution. See U.S. Const. amend VIII.

Applying evolving standards of d ecency that mark

the progress of a maturing society [ see generally Trop

v. Dulles, 356 U.S. 86 (1958)] , appellant’s prison

sentence in this cause should be v aca ted and rendered

for far less than 4 0 years.

Appellant, although he has an extensive criminal

history, committed a completely nonviolent property

crime in this cause. A 40

- year sentence is simply too

high for such an offense.

PRAYER

Ap pellant prays that his sentence be vacated in

this cause and rendered for less than 4 0 years

.9 Respectfully submitted,

/s/ W. A. White

W. A. (BILL) WHITE

ATTORNEY FOR APPELL ANT

POB 7422, Vict., TX 77903

(361) 575

- 1774 voice/ fax

TBN 00788659

CERTIFICATE OF SERVICE

I certify that a true and correct copy or duplicate

original of the for egoing has been provided to Robert

E. Bell, D.A., Jackson Co. District Attorney’s Off ice,

115 W. Main Street, Room 205, Edna, TX 77957 via U.S.

mail, fax , electronic delivery , o r hand

- delivery on

this the 15 th day of September 2015

.

/s/ W. A. White

W. A. White

CERTIFICATE OF COMPLIANCE

I certif y that this brief contains 91 9 words.

/s/ W. A. White

W. A. White