No CR. BENJAMIN GERROD MURPHY, Appellant. vs. THE STATE OF TEXAS, Appellee APPELLANT S BRIEF

Transcription

1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS 5th Court of Appeals FILED: 07/02/ :00 Lisa Matz, Clerk BENJAMIN GERROD MURPHY, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from the 282nd Judicial District Court of Dallas County, Texas In Cause No. F S APPELLANT S BRIEF Counsel of Record Lynn Richardson Riann C. Moore Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB-2 Dallas, Texas (214) (phone) (214) (fax) Attorneys for Appellant

2 LIST OF PARTIES APPELLANT Benjamin Gerrod Murphy APPELLEE The State of Texas DEFENSE COUNSEL AT TRIAL Gary Smart 3020 Matlock Road, Suite 210 Arlington, Texas STATE S ATTORNEY AT TRIAL Amy Derrick Assistant District Attorney Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas APPELLANT S ATTORNEY ON APPEAL Riann C. Moore Dallas County Public Defender s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas STATE S ATTORNEY ON APPEAL Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas ii

3 TABLE OF CONTENTS STATEMENT OF THE CASE...1 ISSUE PRESENTED...1 The trial court abused its discretion by sentencing Appellant to a term of imprisonment because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code...1 STATEMENT OF FACTS...1 SUMMARY OF ARGUMENT...3 ARGUMENT... 4 Preservation...4 Penal Code Goals...6 A Trial Court s Discretion...6 Application of the Law to the Facts...6 PRAYER...9 CERTIFICATE OF SERVICE...9 iii

4 INDEX OF AUTHORITIES Cases Brumbalow v. State, 933 S.W.2d 298 (Tex. App. Waco 1996, pet. ref d)...6 Edwards v. State, 21 S.W.3d 625 (Tex. App. Waco 2000, no pet.)...4 Garza v. State, 841 S.W.2d 19 (Tex. App. Dallas 1992, no pet.)...4 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996)...6 Hernandez v. State, 268 S.W.3d 176 (Tex. App. Corpus Christi 2008, no pet.)...5 Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984)...6 Jaenicke v. State, 109 S.W.3d 793 (Tex. App. Houston [1st Dist.] 2003, pet. ref d)...5 Montgomery v. State, 99 S.W.3d 257 (Tex. App. Fort Worth 2003, no pet.)...4 Nunez v. State, 565 S.W.2d 536 (Tex. Crim. App. 1978)...6 Statutes TEX. PENAL CODE ANN. 1.02(1)(B)...6 TEX. PENAL CODE ANN. 1.02(1)(C)...6 TEX. PENAL CODE ANN. 1.02(3)...6 TEX. PENAL CODE ANN Rules TEX. R. APP. P (a)(1)(a)...4 TEX. R. EVID. 103(a)...4 iv

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6 TO THE HONORABLE COURT OF APPEALS: COMES NOW Appellant, Benjamin Gerrod Murphy, and submits this brief on appeal from a conviction for injury to a child in the 282nd Judicial District Court of Dallas County, Texas, the Honorable Andy Chatham, judge presiding. STATEMENT OF THE CASE A grand jury charged Appellant by indictment with injury to a child in violation of TEX. PENAL CODE ANN (CR: 9). Appellant entered a plea of guilty and judicially confessed to the charge. (CR: 18-20; RR: 6). The trial court found Appellant guilty and assessed punishment at five (5) years imprisonment. (CR: 21; RR: 41). Judgment was entered on February 3, (CR: 21). Appellant gave timely notice of appeal. (CR: 25). ISSUE PRESENTED The trial court abused its discretion by sentencing Appellant to a term of imprisonment because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. STATEMENT OF FACTS Jikimi Williams was the mother to one of Appellant s children, eleven-month old Jace. (RR: 9). She also had another child, an older daughter. (RR: 10). On June 22, 2011, Ms. Williams had taken her daughter, who had been ill, to the hospital; Mr. Murphy stayed home with Jace. (RR: 10). Ms. Williams returned home, cooked dinner, and sat down with Jace on her lap. (RR: 11). She saw some injury to one side of Jace s

7 face. (RR: 11). Her daughter walked toward her, and noticed injury to the other side of Jace s face. (RR: 11). Ms. Williams testified she gathered the children and walked down the street to a park. (RR: 11). She attempted to telephone her mother; there was no answer. (RR: 12). Mr. Murphy telephoned her and left a message on her cell phone where he explained what had happened involving Jace. (RR: 12). His explanation, in pertinent part, was that he was playing with him... slapping his face around. I was not doing it hard so if I accidentally scratched him it was not on purpose.... (CR: 11). At one point, Mr. Williams told his mother that the injuries were a result of playing. (RR: 34). Ms. Williams, at some point, contacted the police and she took Jace to Children s Medical Center. (RR: 12). (CR: 11). The police report lists the following injuries to the child: 1) parallel bruising to the right cheek, 2) vertical parallel bruising to the left cheek, 3) small red bruise on the outer aspect of the left eye, 4) small right subconjunctival heme, 5) bruising to the top of the right ear, 6) scattered bruising to the chest wall and 7) large bruised loop mark on the abdominal wall[.] Ms. Williams testified that had Mr. Murphy known she was going to call the police as a result of the child s injuries, he probably would have tried to choke me or anything.... (RR: 15). She testified he has done this before. (RR: 16). Mr. Murphy was eventually arrested and released on bond. (RR: 15). Ms. Williams testified she learned that Mr. Murphy, while on bond, was arrested again in Arlington for felony family violence on another woman which involved choking. (RR: 15, 17). 2

8 Ms. Williams testified that Mr. Murphy can be a nice person at times when he want[s] to be. But he can also be he can also have a very bad attitude. Very bad. (RR: 16). Ms. Williams testified she does not want Mr. Murphy around her children, none of my kids have to go through none of that anymore. My little girl was just, like, nervous every day she went to school every day. (RR: 18). Ms. Williams testified that Mr. Murphy has an anger control problem, and he would benefit from anger management counseling and parenting classes. (RR: 21). Gloria Andrews, Ms. Williams grandmother, testified her main concern about Mr. Murphy is that he uses drugs and is violent. (RR: 25). Delores Murphy, Mr. Murphy s mother, testified that if he were released on probation, he would be living with her. (RR; 29). She was asked about the conditions of Mr. Murphy s probation in Tarrant County for the offense which occurred while he was on bond in the instant case. (RR: 33). Specifically, his probation includes attending and completing a batterer s intervention program, completing anger control counseling, reporting to probation, and submitting to random urinalysis screenings. (RR: 33, 34). She testified there should be no reason for Mr. Murphy to be unsuccessful at completing the terms of probation because she and her husband have made themselves available to do whatever it takes to help him successfully complete his probation. (RR: 34). SUMMARY OF ARGUMENT The trial court abused its discretion by sentencing Mr. Murphy to a term of imprisonment. Because Mr. Murphy was a good candidate for probation, this sentence does not meet the objective of rehabilitation but is merely punitive. 3

9 ARGUMENT The trial court abused its discretion by sentencing Appellant to a term of imprisonment because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. A prison sentence in this case does not meet the objective of rehabilitation. Rather, the sentence is merely punitive. Consequently, the trial court abused its discretion. Preservation Appellant anticipates that the State may argue that this issue is not preserved for appellate review because Appellant did not object to the sentence at the time it was pronounced. A specific objection is not required, however, when the basis of the objection or the ground for an appeal is apparent from the context. See TEX. R. EVID. 103(a) (requiring an objection stating the specific ground of objection, if the specific ground was not apparent from the context ); TEX. R. APP. P (a)(1)(a) (requiring a specific objection unless the specific grounds were apparent from the context ). Many circumstances exist in which an objection is not required to preserve a ground for appellate review. See, e.g., Montgomery v. State, 99 S.W.3d 257, (Tex. App. Fort Worth 2003, no pet.) (holding that no objection was necessary as to a court s failure to sua sponte withdraw a defendant s guilty plea and enter a not guilty plea when the evidence reasonably raises an issue as to innocence); Edwards v. State, 21 S.W.3d 625, (Tex. App. Waco 2000, no pet.) (holding that no objection was necessary as to a deadly weapon finding when the jury did not find that the defendant used or exhibited a deadly weapon); Garza v. State, 841 S.W.2d 19, 23 (Tex. App. Dallas 1992, no pet.) (holding that no objection was necessary as to the amount of restitution). At least two 4

10 Texas courts have specifically held that fundamental error in punishment, such as the failure to consider the full range of punishment, can be raised under certain circumstances for the first time on appeal. See Hernandez v. State, 268 S.W.3d 176, 184 (Tex. App. Corpus Christi 2008, no pet.); Jaenicke v. State, 109 S.W.3d 793 (Tex. App. Houston [1st Dist.] 2003, pet. ref d). Further, a specific objection to this sentence would have served no useful purpose in this case. Appellant had freely and voluntarily entered a plea of guilty and judicially confessed to the offense. (CR: 18-20; RR: 4). Appellant specifically asked the trial court for probation. (RR: 37). His mother testified that Appellant would be supported by his family if placed on probation. (RR: 33-24). Furthermore, his attorney specifically argued for probation as follows: [H]e was previously placed on probation in Tarrant County just a month ago for five years deferred adjudication for the assault that you ve heard about. We d ask that he be placed on deferred adjudication in this case also. I don t believe the terms and conditions a term of imprisonment is going to achieve the goals of the justice system in this particular case. I think he will benefit from all the programs that are available in this case. (RR: 38). Consequently, the only real issue before the trial court was whether to place Appellant on probation or to incarcerate him for a period of time within the statutory limits. An objection under these circumstances to the exact terms of years assessed was unnecessary and would have been redundant. Due to the evidence presented and the arguments advanced, Appellant is entitled to have this Court consider his arguments on the merits. 5

11 Penal Code Goals One of the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code is the rehabilitation of persons convicted of violations of the code. TEX. PENAL CODE ANN. 1.02(1)(B). It is the duty of the trial court to prescribe such punishment as may be necessary to prevent likely recurrence of criminal behavior and to prescribe penalties that are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitative possibilities among individual offenders. TEX. PENAL CODE ANN. 1.02(1)(C) & 1.02(3). A Trial Court s Discretion Appellate courts review a sentence imposed by a trial court for abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). When the standard of review is abuse of discretion, the record must contain some evidence to support the decision made by the trial court. Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App. Waco 1996, pet. ref d). A reviewing court generally should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101 (Tex. Crim. App. 1996). Additionally, as a general rule, a sentence within the proper range of punishment will not be disturbed on appeal. See Jackson, 680 S.W.2d at 814; see also Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978). Application of the Law to the Facts Here, Mr. Murphy was involved in two assaultive-type cases within months of each other. Trial counsel argued, He s 28 years old. He s not a 19 year-old kid who s had a lot of prior problems. His problems appear to have occurred within the last year. 6

12 (RR: 38). All the testimony concurred that Mr. Murphy had an anger management problem, but there were people in his life who would help him through this difficult time if given the opportunity. There was no evidence from the CATS evaluation or presentence report indicating Mr. Murphy had hard substance abuse issues. (RR: 38). Mr. Murphy s mother also testified that when Mr. Murphy was around Jace, he was fine. (RR: 31). Mr. Murphy has three older boys, and Mrs. Murphy testified there has never been a question of Mr. Murphy being violent with his other three boys. (RR: 31-32). Mr. Murphy had paid child support for the three boys, and worked some temporary and some permanent jobs. (RR: 32). His work involved industrial forklifts, cherry pickers, warehouse. That type of thing. (RR: 32). In addition, Mr. Murphy took responsibility for his conduct by pleading guilty. (RR: 4). The State seemed concerned that Mr. Murphy be given the opportunity to complete the programs offered by probation in Tarrant County. The prosecutor argued, in pertinent part, as follows: The State has offered him two years in prison. The fact of the matter is, if he goes to prison for two years and he gets out, he can still complete all the conditions of his probation if his sentences are run concurrently, because he ll still have three years left on his Tarrant County probation. (RR: 39-40). Even with this case pending, Mr. Murphy received probation in Tarrant County. It can only be deduced that the trial court in Tarrant County thought Mr. Murphy was a good candidate for probation. Notably, while there was some injury in this case, there was no evidence adduced at trial, other than the guilty plea, indicating that Mr. Murphy s intent was to harm the 7

13 child or that the injury was life-threatening. Mr. Murphy explained in a voice message that he was essentially rough-housing with the child. (State s Ex. 3). Mr. Murphy s mother testified she believed her son when he explained that the injuries were the result of playing. (RR: 35). When all the facts of this case are considered, it can be concluded that Appellant was a good candidate for probation, which is what his attorney requested. There is no reason to believe that Appellant would not be successful on probation. And, if he was not, the trial court had the full range of punishment available to it for just such an eventuality. It is well known that there is wide and inconsistent sentencing in Texas and that, ostensibly, there are numerous defendants currently on probation for the same offenses as Appellant s, as well as other offenses with circumstances much worse than Appellant s offense. Where rehabilitation is possible, as it clearly was in this case, it is a disservice to the public for a court to ignore the present overcrowding of penal facilities in Texas and submit a defendant to a punitive term of confinement. The prison sentence assessed in the instant case does not meet the objective of rehabilitating Appellant or permit recognition of differences in rehabilitative possibilities among offenders. Under the circumstances of this case, Appellant urges this Court to find that the trial court abused its discretion and remand this cause for a new punishment hearing with instructions to place Appellant on probation. 8

14 PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court will remand for a new punishment hearing. Respectfully submitted, Lynn Richardson Riann C. Moore Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No Dallas County Public Defender s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas (214) (phone) (214) (fax) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on the Dallas County Criminal District Attorney s Office (Appellate Section), 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by hand delivery on June 29, Riann C. Moore 9