No CR. RICHARD HARRIS, Appellant. vs. THE STATE OF TEXAS, Appellee APPELLANT S BRIEF

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1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS 5th Court of Appeals FILED: 02/01/ :00 Lisa Matz, Clerk RICHARD HARRIS, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from the Criminal District Court No. 3 of Dallas County, Texas In Cause No. F J APPELLANT S BRIEF Counsel of Record Lynn Richardson Riann C. Moore Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No N. Riverfront Boulevard, LB-2 Dallas, Texas (214) (phone) (214) (fax) Attorneys for Appellant

2 LIST OF PARTIES APPELLANT Richard Harris APPELLEE The State of Texas DEFENSE COUNSEL AT TRIAL Matthew Seymour Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB-2 Dallas, Texas STATE S ATTORNEY AT TRIAL Jason Fine Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB-19 Dallas, Texas APPELLANT S ATTORNEY ON APPEAL Riann C. Moore Dallas County Public Defender s Office 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 133 N. Riverfront Blvd., LB-19 Dallas, Texas ii

3 TABLE OF CONTENTS LIST OF PARTIES...ii ISSUE PRESENTED...1 The trial court abused its discretion by sentencing Appellant to a term of imprisonment for four years because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code....1 STATEMENT OF THE FACTS...1 SUMMARY OF ARGUMENT...3 ARGUMENT... 3 PRAYER...6 CERTIFICATE OF SERVICE...6 iii

4 INDEX OF AUTHORITIES Cases Brumbalow v. State, 933 S.W.2d 298 (Tex. App. Waco 1996, pet. ref d)...4 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996)...4 Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984)...4 Lovill v. State, 319 S.W.3d 687 (Tex. Crim. App. 2009)...3 Nunez v. State, 565 S.W.2d 536 (Tex. Crim. App. 1978)...4 Statutes TEX. PENAL CODE 1.02(1)(B)...3 TEX. PENAL CODE 1.02(1)(C)...4 TEX. PENAL CODE 1.02(3)...4 TEX. PENAL CODE iv

5 TO THE HONORABLE COURT OF APPEALS: COMES NOW Appellant, Richard Harris, and submits this brief on appeal from a conviction in the Criminal District Court No. 3 of Dallas County, Texas, the Honorable Gracie Lewis, judge. STATEMENT OF THE CASE Appellant was charged with theft, enhanced, in violation of TEX. PENAL CODE ANN (CR: 5). Appellant entered a plea of guilty, entered a plea of true to the enhancement paragraphs, was found guilty by the trial court and sentenced to four years imprisonment. (CR: 10; RR3: 9, 23). The appellant filed a motion for new trial which was overruled by operation of law. (CR: 27-29). Notice of appeal was timely filed. (CR: 23-25). ISSUE PRESENTED Point of Error The trial court abused its discretion by sentencing Appellant to a term of imprisonment for four years because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. STATEMENT OF THE FACTS Appellant was admonished that he was charged with the offense of theft enhanced and that the range of punishment was 180 days to two years in jail and a fine of up to $10,000. (RR2: 4). The State initially made a sentencing recommendation of nine months in State Jail. (CR: 11). However, the appellant was informed that the State filed notice of its intent to enhance the punishment range, alleging therein that he had been

6 convicted of two prior state jail felonies. (RR2: 4; CR: 12). Appellant told the court he wanted a couple years [probation] or something like that, because I really need to get back to my job. (RR2: 5). The appellant pleaded guilty and judicially confessed; the proceedings were continued so that the appellant could meet with the probation department for a presentence interview. (RR2: 6, 8, 10; CR: 13-17). At the punishment hearing, the appellant pleaded true to the enhancement paragraphs. (RR3: 7). The trial court was informed that the appellant was gainfully employed. (RR3: 4). The report prepared by the Probation Department recommended SAFPF special needs. 1 (RR3: 10). The basis of the recommendation appears to be, at least in part, the appellant s substantial history of mental health issues and his medications required. (RR3: 10). In addition, the report indicated that the appellant had a very long criminal history and the evaluator thought it would be best for the appellant to go to inpatient treatment because it would be an easier way for him to take his medication. (RR3: 11). Rather than inpatient treatment through special needs, the appellant was asking the trial court for outpatient treatment and probation. (RR3: 11). The appellant testified he has lived with his boss since he was twenty-three years old. (RR3: 12). His employer s wife has made sure, in the past, that the appellant took his medication. (RR3: 13). However, his employer closes his business in December and 1 The record does not define this program. The recommendation of treatment in a [SAFPF] special-needs unit is a common and appropriate response to any defendant with special medical needs, such as diabetics, those with certain 2

7 travels to Kansas. (RR3: 13). Sometimes, the appellant travels with him; this year, he did not. (RR3: 13). Appellant testified he goes to a clinic, specifically designated for mental health and retardation, where a urine test is administered. (RR3: 14). He testified he can go to an outpatient program and will not drink, but will only take his medication, which can be confirmed by the urine test. (RR3: 14). Appellant testified he was fifty-one years old. (RR3: 16). He explained he has never received outpatient treatment. (RR3: 16). The trial court assessed punishment at four years imprisonment in the Texas Department of Criminal Justice Institutional Division, and a fine of $500. (RR3: 23). SUMMARY OF ARGUMENT The trial court abused its discretion by sentencing Appellant to four years incarceration because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. This Court should vacate the sentence and remand the case for a new punishment hearing. ARGUMENT 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 1.02(1)(B). It is the duty of the trial court to prescribe such disabilities or chronic diseases, and pregnant females. Lovill v. State, 319 S.W.3d 687, 694 (Tex. Crim. App. 2009) (Johnson, J. Concurring). 3

8 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. Id. 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). Appellant concedes that his sentence was within the statutorily authorized range for his offense. Application of the Law to the Facts Appellant testified that when his employer is out of town, he is apt to drink and he might forget to take his medication which is required to control his mental health problems. The evaluation reviewed by the trial court contained information that the appellant admitted his problem, and the evaluation recommended SAFPF special-needs. Obviously, the record suggests that Appellant is not beyond redemption and that he could 4

9 be rehabilitated. When it is clear that rehabilitation is possible, as it is 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 for four years. This is particularly true in Appellant s case where Appellant has a history of mental illness, admitted his drinking issues, and had the support of his employer and employer s wife. It would also be improper to ignore the fact that there is wide and inconsistent sentencing in Texas and that, ostensibly, there are numerous defendants currently serving less severe sentences for the offense such as Appellant s, as well as other offenses with circumstances much worse than Appellant s offense. A sentence of four years incarceration in the instant case was not necessary to prevent the likely recurrence of Appellant s criminal behavior, does not meet the objective of rehabilitation, and does not recognize differences in rehabilitative possibilities among individual defendants. Incarcerating Appellant for four years is merely punitive and does not further the Penal Code s goal of rehabilitation. Under the circumstances of this case, Appellant urges this Court to find that the trial court abused its discretion in sentencing Appellant to forty years incarceration in his case and remand this case for a new punishment hearing. 5

10 PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court will reverse the punishment verdict and remand this case for a new punishment hearing. Respectfully submitted, Lynn Richardson Riann C. Moore Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No 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 personal service on January 31, Riann C. Moore 6