TODD MORICE HEFLEY, Appellant. THE STATE OF TEXAS, Appellee APPELLANT S BRIEF

Transcription

1 Nos CR, CR, CR, CR, CR, CR, CR, & CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS TODD MORICE HEFLEY, Appellant v. THE STATE OF TEXAS, Appellee On appeal from the 265 th Judicial District Court of Dallas County in Cause Nos. F YR, F MR, F XR, F XR, F XR, F YR, F XR, & F XR APPELLANT S BRIEF Counsel of Record: Lynn Richardson Katherine A. Drew Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar Number: Dallas County Public Defender s Office 133 N. Industrial Blvd., LB 2 Dallas, Texas (214) (telephone) (214) (fax) Attorneys for Appellant

2 IDENTITY OF PARTIES AND COUNSEL APPELLANT Todd Morice Hefley DEFENSE COUNSEL AT TRIAL Vanita White 3500 Oak Lawn Ave. Suite 700 Dallas, Texas APPELLANT S ATTORNEY ON APPEAL Katherine A Drew Assistant Public Defenders Dallas County Public Defender s Office 133 N. Industrial Blvd., LB 2 Dallas, Texas STATE S ATTORNEYS AT TRIAL Andrea Mosley Assistant District Attorneys Dallas County District Attorney s Office 133 N. Industrial Blvd., LB 19 Dallas, Texas STATE S ATTORNEY ON APPEAL Craig Watkins (or designated representative) Dallas County District Attorney s Office 133 N. Industrial Blvd., LB 19 Dallas, Texas ii

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... ii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 2 STATEMENT OF FACTS... 2 SUMMARY OF THE ARGUMENT ARGUMENT Point of Error, Restated The trial court abused its discretion by sentencing Appellant to imprisonment since that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. PRAYER CERTIFICATE OF SERVICE iii

4 INDEX OF AUTHORITIES CASES Brumbalow v. State, 933 S.W.2d 298 (Tex. App. Waco 1996, pet. ref d) Edwards v. State, 21 S.W.3d 625 (Tex. App. Waco 2000, no pet.) Garza v. State, 841 S.W.2d 19 (Tex. App. Dallas 1992, no pet.) Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996) Hernandez v. State, 268 S.W.3d 176 (Tex. App. Corpus Christi, 2008, no pet.) Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984)... 13, 14 Jaenicke v. State, 109 S.W.3d 793 (Tex. App. Houston [1st Dist.] 2003, pet. ref d) Montgomery v. State, 819 S.W.2d 372 (Tex. Crim. App. 1990) Montgomery v. State, 99 S.W.3d 257 (Tex. App. Fort Worth 2003, no pet.) Nunez v. State, 565 S.W.2d 536 (Tex. Crim. App. 1978) iv

5 STATUTES TEX. PENAL CODE 1.02 (1) (3) TEX. PENAL CODE 1.02 (1) (B) TEX. PENAL CODE 1.02 (1) (C) RULES TEX. R. APP. P (a) (1) (A) TEX. R. EVID. 103 (a) v

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7 TO THE HONORABLE COURT OF APPEALS: Comes Now Appellant, Todd Morice Hefley, and submits this Brief from eight convictions in the 265th Judicial District Court, the Honorable Mark Stoltz, judge. STATEMENT OF THE CASE Appellant was charged with the commission of eight separate felony offenses: 1) Theft of property ($1500-$20,000) in Cause No. F YR (CR1: 2); 1 2) Burglary of a habitation in Cause No. F MR (CR2: 2); 3) Evading arrest from a detention facility in Cause No. F XR (CR3: 2); 4) Credit card abuse in Cause No. F XR (CR4: 2); 5) Robbery in Cause No. F XR (CR5: 2); 6) Theft of property ($1500-$20,000) in Cause No. F YR (CR6: 2); 7) Possession with intent to deliver methamphetamine over 400 grams in Cause No. F XR (CR7: 2); and 8) Evading arrest from a detention facility in Cause No. F XR (CR8: 2). Appellant entered pleas of guilty to these offenses and waived his right to a jury trial. (RR2: 5, 6). The State offered judicial confessions in each case and pleas of true to the enhancement paragraphs in the burglary of a habitation and robbery cases. (RR2: 7). The trial court found that the evidence was sufficient to substantiate Appellant s guilt but took the case under advisement without a finding of guilt. (RR2: 7-8). After an extensive hearing on punishment, the trial court found Appellant guilty of all charged offenses. (RR3: 87). Appellant was sentenced to two years in a state jail facility in Cause Nos. F R, F R, F R, F , F R (CR1: 17; 1 The clerk s records will be referred to as CR1 in Cause No. F YR, CR2 in Cause No. F MR, CR3 in Cause No. F XR, CR4 in Cause No. F XR, CR5 in Cause No. F XR, CR6 in Cause No. F YR, CR7 in Cause No. F XR and CR 8 in Cause No. F XR.

8 CR3: 14; CR4: 13; CR6: 15; CR8: 15; RR3: 87), thirty years in Cause Nos. F R, F R (CR2: 12; CR7: 17; RR3: 87), and forty-five years in Cause No. F R (CR5: 15; RR3: 87). ISSUE PRESENTED Point of Error The trial court abused its discretion by sentencing Appellant to imprisonment since that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. STATEMENT OF FACTS About 7:15-7:30 a.m. on October 7, 2008, Dallas Police Officer Brandon Bray and his partner 2 responded to a call about a possible offense of unauthorized use of a motor vehicle. (RR3: 4, 6). The vehicle, which was damaged, was still sitting in the complainant s driveway. (RR3: 4). The complainant described the suspect as a white male, approximately 6 feet tall, blond or light brown hair, wearing a red shirt and khaki shorts. (RR3: 4). Over the radio, Bray heard another officer put out a suspicious person call with the same description. (RR3: 4). Indeed, a helicopter unit, as well as a number of officers, were looking for a person who fit this description. (RR3: 5). 2 Bray s partner that day was Senior Cpl. Nagi. (RR3; 5). Nagi did not testify at trial. 2

9 Bray and other officers began walking the alleyways, looking for the suspect on foot. (RR3: 5, 6). As they were walking in an alleyway north of Fontana, a white male with light brown to blond hair, wearing khaki shorts and no shirt, came over a fence in front of Officer Heathcote; Bray identified Appellant as this person. (RR3: 6, 7). Appellant made eye contact with Heathcote for a moment, then jumped over the next fence going south on towards Fontana going into another backyard. (RR3: 6). The officers gave chase on foot. (RR3: 6, 7). Heathcote followed Appellant over the fence. (RR3: 7). Bray and Officer Crawford went through the alleyway towards Marsh to cut him off at the intersection of Fontana and Marsh. (RR3: 7). As they were turning the corner, they saw Appellant run up to a car stopped at the stop sign at the intersection of Fontana and Marsh. (RR3: 7, 8). Appellant opened the passenger door of the vehicle and jumped in. (RR3: 8). A few seconds after Appellant entered the vehicle a Hispanic female opened the driver s side door and pulled a young female child out of the car; both were screaming and speaking in Spanish. (RR3: 8). About the time the females got out of the car, Officer Crawford arrived at the driver s door of the vehicle. (RR3: 8). Bray saw Appellant climb over into the driver-side seat. (RR3: 9). Crawford had reached into the vehicle and was attempting to get the keys out of the vehicle. (RR3: 9). When the vehicle began moving, Crawford pulled himself completely into the vehicle so he didn t get dragged by the car. (RR3: 9). The vehicle moved perhaps

10 yards into the intersection, then lost control, did a 180, came back over the median that separated the north and south bound lanes of Marsh, and collided head on with a tree in the center of the median. (RR3: 9). Crawford was basically laying on the dashboard. (RR3: 10). He was transported to the hospital. (RR3: 9). Appellant exited the vehicle, ran across the northbound lanes of Marsh towards a school, up to a waiting a vehicle and attempted to open the passenger side door of that car. (RR3: 10). Finding the door locked, he ran around to the driver s side door and attempted to open it. (RR3: 10). Bray was able to catch up with Appellant at that point and apprehend him. (RR3: 10). Appellant had a screwdriver in his pocket. (RR3: 11). There was a pending warrant for his arrest on a burglary charge. (RR3: 11). Based on his observations that day, Bray believed that Appellant was a danger to the community. (RR3: 11). Dallas Police Officer Nathan Heathcote was one of the officers involved in arresting Appellant. (RR3: 13). He was working with Officer Crawford 3 on the day in question. (RR3: 13). Heathcote described Crawford s injuries as follows: He had several abrasions on his forehead and the rest of his head, and when he went to the hospital he was told that he had several bruised ribs from hitting the steering wheel. (RR3: 14). Crawford was out of work 3 Crawford was believed to be on vacation on the day of trial and did not testify. (RR3: 13). 4

11 for a week. (RR3: 14). Based on his observations that day, Heathcote believed that Appellant was a danger to the community. (RR3: 14). Steven Weiland testified that he was just coming out of mass at St. Monica s church, located at Walnut Hill and Midway, about 5-10 minutes after 7:00 a.m., when he noticed that the window of his car had been broken out. (RR3: 16-17). As Weiland approached the driver s side he saw Appellant sitting in his car; according to Weiland, Appellant was dismantling the steering wheel. (RR3: 17). When Appellant saw Weiland, he jumped out of the car, said sorry, man, and fled on foot. (RR3: 18). According to Weiland, Appellant was pretty cool about it. (RR3: 18). Weiland called the police. (RR3: 16). Weiland testified that there was $ worth of damage to his car. (RR3: 19). On September 9, 2008, Richard Mitschke s home in Sunnyvale was burglarized while he was out of town and his wife was at work. (RR3: 20-21). Taken in the burglary were electronics, jewelry, firearms, collectibles, checkbooks, passports and credit cards. (RR3: 22). Some of the checks taken were subsequently written. (RR3: 23). Among the odds and ends that the Mitschkes got back was some of their identity related items, i.e., checkbooks and passports, organized into a file folder; these items had not been stored that way in their home. (RR3: 24). Diana Albrecht testified that on September 11, 2008, her husband went to their home in Grapevine, Texas for lunch; he found the house had been burglarized. (RR3: 27, 29). 5

12 According to Albrecht, every drawer, cabinet and closet had been gone through. (RR3: 27). Most of the family s personal property and goods were taken. (RR3: 27, 28). Later that day, after she had placed a fraud alert on her credit cars, she received a call from a Wal-Mart that someone was attempting to use one of her credit cards. (RR3: 29, 30). At the time of trial, Appellant had a charge pending in Tarrant County for the Albrecht burglary. 4 (RR3: 29). Robert Wright testified that, on October 6, 2008, he retuned to his apartment about 5:00 p.m. to find that a truck he owned had been stolen. (RR3: 32). About 2:00 a.m., he received a call from the Carrollton police that his truck had been recovered. (RR3: 33). Wright paid $ to have his vehicle released from the impound lot. (RR3: 33). The steering column was broken and the back rear bumper was messed up. (RR3: 33). He discovered a number of personal items of property in the back seat that did not belong to him. (RR3: 33). Wright claimed he had already sold the truck to a friend at the time of the theft. (RR3: 34). He had to take about a $500 beating on it just to move it. (RR3: 34). Farmer s Branch police officer Charles Purvis was on patrol around 1:00 a.m. on October 7, 2008 when he noticed a truck with its lights off at an old car dealership on Valley View. (RR3: 35). Purvis followed the truck as it drove off. (RR3: 36). He noticed the window was rolled down; he thought this was unusual, as it was raining that night. (RR3: 4 Appellant denied committing that offense. (RR3: 81-82). 6

13 36). When Purvis activated his lights, the truck took off. (RR3: 36). Purvis gave chase in his patrol car. (RR3: 36). At one point he saw the driver throw something out the window, which ultimately proved to be a bag of methamphetamine. (RR3: 37). Before the truck stopped, a female passenger bailed out; Purvis detained her. (RR3: 37, 38). The driver 5 stopped the truck but continued to flee on foot. (RR3: 38). It was later ascertained that the truck was stolen from Wright. (RR3: 39). The female was able to identify the driver of the truck. (RR3: 38). Dallas police officer James Seaberry was working as an off-duty police officer at a Wal-Mart in Garland on September 11, (RR3: 40). He came into contact with Appellant around 6:45 p.m. in the store when he was called by loss prevention officer Stevens to come and view video of a couple in the store. (RR3: 41). Seaberry saw the couple just grabbing items, not looking at prices, filling up three carts. (RR3: 41-42). According to Seaberry, they were not shopping like normal people. (RR3: 42). Seaberry notified the other off-duty officers in the store when he saw the couple heading for the door. (RR3: 42). However, the couple changed directions and went to a register where they attempted to pay for the items, which ultimately totaled $748.43, with a credit card. (RR3: 42). When asked to provide identification, Appellant ignored the cashier. (RR3: 43). Loss prevention officer Stevens then asked for Appellant s ID: Appellant began screaming and yelling that he was 5 Appellant testified that he was a passenger and not the driver of this vehicle. (RR3: 2-73). 7

14 being harassed and saying that he was leaving. (RR3: 43). Stevens told him that he was being detained until they could figure out whether the card was stolen. 6 (RR3: 43). Appellant and the female were taken to the loss prevention office. (RR3: 43). At one point Appellant began fighting with Stevens and Seaberry. (RR3: 45). Appellant managed to avoid a Taser and ran out of the store, with Stevens and Seaberry giving chase. (RR3: 45). He was ultimately apprehended after more fighting and a second application of the Taser. (RR3: 45-46). In the chase, Seaberry injured his knee, which required surgery and a three month absence from work. (RR3: 45, 47). Seaberry believed that Appellant was high on drugs. (RR3: 48). Garland Police Detective Mike Skillings, who was also working off-duty at the Wal- Mart the night Appellant was arrested, was led by the female accompanying Appellant to a motel room. (RR3: 49, 50). After obtaining a warrant for the room, he discovered a number of items, including property belonging to both the Albrechts and the Mitschkes. (RR3: 50). Also discovered were syringes and drug paraphernalia associated with drug use. (RR3: 52). Skillings testified that he believed Appellant was intoxicated or high that night. (RR3: 51). Wanda Kudwa, Appellant s mother, testified that Appellant was diagnosed with a 6 It was ultimately determined that the card was Diana Albrecht s card. (RR3: 43). Also discovered were five other cards, some of which belonged to Richard Mitschke, a checkbook and drug paraphernalia. (RR3: 44, 47). The only card Appellant had was Albrecht s; the others were on the unidentified female. (RR3: 47, 48). 8

15 mental illness, i.e., a major depressive disorder, when he was seventeen-years-old and incarcerated. (RR3: 53, 54). Kudwa testified that, while her son had been in prison most of his life, he had never received any sort of treatment or rehabilitation for his mental illness. (RR3: 54). He had tried to commit suicide at one point. (RR3: 54). Kudwa testified that her son was a good person, particularly when not on drugs. (RR3: 55, 57). He needed medication and is a different person when he takes it. (RR3: 55). According to Kudwa, Appellant needs to be introduced to the world. (RR3: 55). He has a supportive family who would help him if he were placed on probation. (RR3: 55). Shelley Hamilton, Appellant s cousin, testified that Appellant was a good person who had served as a stand-in father for her nine-year-old son. (RR3: 58, 61). She believed that Appellant had gotten on the wrong track and could not figure out how to get back on the right track. (RR3: 62). However, when Appellant was not in his right frame of mind he does things that none of the family would expect him to do. (RR3: 61). Hamilton testified that Appellant needed medication and rehabilitation. (RR3: 61). Bud Ward, Appellant s grandfather, testified that he had worked with addicts in the past and recognized that his grandson had an addiction that needed aggressive treatment. (RR3: 65, 67). He believed Appellant needed in-patient treatment for 2-3 years in order for it to be successful. (RR3: 67). Appellant, testifying in his own behalf, confirmed that he had been diagnosed at the 9

16 age of seventeen with a major depressive disorder while incarcerated. (RR3: 69). He was put on medication while at a unit called Skyview, then paroled to Metrocare, where they were to simply monitor his medication. (RR3: 70). While in the federal penitentiary at Leavenworth, he had become addicted to hard drugs. (RR3: 74). Appellant did not remember most of the offenses to which he pled guilty. (RR3: 73). At the time the offenses were committed, he was going without food and sleep for days at a time and shooting up ice. (RR3: 73). Appellant was, in his own words, out of his mind. (RR3: 73). Most of the time his experiences, including the offenses, were just a blur. (RR3: 73, 80). He did not remember the Wal-Mart incident at all. (RR3: 74). Appellant was accepted into the drug program at Cenikor, but later learned he would not qualify for admission due to his mental illness. (RR3: 71). He knew that SAFPF had been recommended for him. (RR3: 72). While there was a long wait for admission to that program, he was willing to do whatever it would take to qualify for that program. (RR3: 72). Appellant admitted that he had been incarcerated most of his adult life. (RR3: 69). He had never had his own apartment, never owned a car, and had not spent a Christmas with his family since he was sixteen years old. (RR3: 76). He wanted to break the cycle of addiction in his life and make a success storey out of this mess. (RR3: 75-77). 10

17 SUMMARY OF THE ARGUMENT The trial court abused its discretion in sentencing Appellant to imprisonment in all cases because those sentences do not meet the objective of rehabilitating Appellant from his long-term drug addiction. Imprisoning Appellant without permitting him to benefit from intensive drug treatment is merely punitive, and does not further to Penal Code s goal of rehabilitation. ARGUMENT Point of Error, Restated The trial court abused its discretion by sentencing Appellant to imprisonment since that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. When all the facts of these cases are considered, it is clear that the trial court, by sentencing Appellant to multiple terms of imprisonment, abused its discretion. These sentences violate the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code in that imprisonment does not meet the objective of rehabilitation. In light of Appellant s long-term drug addiction, and his desire for drug treatment, any sentence of imprisonment, without provisions for intensive drug treatment, is overly harsh and designed to thwart proper rehabilitation. Preservation Appellant anticipates that the State may argue that this issue is not preserved for 11

18 appellate review since Appellant did not object to the sentences at the time they were pronounced. A specific objection is not, however, required at trial 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, for example, Montgomery v. State, 99 S.W.3d 257, (Tex. App. Fort Worth 2003, no pet.) (holding that no objection was necessary 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 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 to the amount of restitution). At least two 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 circumstance, 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). 12

19 In the case at bar, a specific objection to the sentences assessed would have served no useful purpose. Appellant had entered pleas of guilty to the offenses charged and judicially confessed to the crimes. (RR3: 5-7). The only real issue before the trial court was the appropriate sentence to assess in each case. Having specifically pled for drug treatment and rehabilitation, and having presented witnesses to testify that he needed rehabilitation and treatment, Appellant put the trial court on notice that a prison term of any length, without drug treatment, was objectionable. 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 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 permit recognition of differences in rehabilitation possibilities among individual offenders. TEX. PENAL CODE 1.02 (1) (C), (3). A Trial Court s Discretion Appellate courts review sentences imposed by a trial court for an 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 13

20 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); Montgomery v. State, 819 S.W.2d 372, 391 (Tex. Crim. App. 1990). 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; Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978). Appellant concedes that his sentences were all within the statutorily authorized ranges. Application of the Law to the Facts There is nothing in the record to suggest that Appellant is beyond redemption or that he could not be successfully rehabilitated with proper treatment. What is clear from the record is that prison would not solve Appellant s drug addiction or provide the requisite treatment necessary. Indeed, Appellant first became addicted to hard drugs while incarcerated at the federal prison at Leavenworth. There is no reason to believe that a Texas prison would do any better at providing Appellant with a drug free environment, much less with the intensive treatment needed due to his many years of drug use. Even the officers who testified to Appellant s involvement believed he was either intoxicated or high. (RR3: 48, 51). Incarceration, without intensive drug treatment, could easily result in Appellant becoming incapable of rehabilitation due to his addiction. 14

21 The record was uncontradicted that Appellant had never received any drug treatment. Moreover, due to his mental illness, he was not eligible for many drug programs. The only possible source of help for Appellant was a court ordered stay in SAFPF. It is clear that the trial court did not truly consider rehabilitation is assessing punishment. Rather, the trial court s sentences were designed to be punitive. (RR3: 86-87). This is hardly conducive to rehabilitation. Multiple terms of imprisonment for Appellant do not meet the objective of rehabilitating Appellant. Imprisoning Appellant without permitting him to benefit from intensive drug treatment is merely punitive, and does not further to 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 multiple terms of imprisonment and remand these cases for new punishment hearings. 15

22 PRAYER Based upon the foregoing arguments, Appellant prays for a new punishment trial in all cases. Respectfully submitted, Lynn Richardson Chief Public Defender, Dallas County Katherine A. Drew Assistant Public Defender Dallas County Public Defender s Office State Bar Number: N. Industrial Blvd. LB 2 Dallas, Texas (214) (phone) (214) (fax) Attorney for Defendant on Appeal Only CERTIFICATE OF SERVICE I, the undersigned certify that a true and correct copy of Appellant s Brief was served to Craig Watkins, District Attorney of Dallas County, on this 17th day of February, 2010, by hand delivery to the to Craig Watkins, District Attorney of Dallas County, Appellate Section, 133 North Industrial Boulevard, Dallas, Texas Katherine A. Drew 16