DARIUS JAMAL RUSTIN, Appellant. THE STATE OF TEXAS, Appellee APPELLANT'S BRIEF

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1 No CR No CR No CR No CR 5th Court of Appeals FILED: 07/05/ :00 Lisa Matz, Clerk IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS DARIUS JAMAL RUSTIN, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from the 283rd Judicial District Court of Dallas County, Texas In Cause Nos. F10-!6642-T, F T, F T, F T APPELLANT'S BRIEF Counsel of Record Lynn Richardson Chief Public Defender Dallas County, Texas Katherine A. Drew Assistant Public Defender 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 Darius Jamal Rustin APPELLEE The State of Texas DEFENSE COUNSEL AT TRIAL Valencia Bush N Central Expy Ste 400 Dallas, Texas STATE'S ATTORNEY AT TRIAL Chris Pryor Assistant District Attorneys Dallas County District Attorney's Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas APPELLANT'S ATTORNEY ON APPEAL Katherine A. Drew 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

3 TABLE OF CONTENTS LIST OF PARTIES... ii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUES PRESENTED... 2 STATEMENT OF FACTS... 2 SUMMARY OF ARGUMENT... 8 ARGUMENT... 9 Point oferror 1, Restated... 9 The trial court improperly overruled Appellant's objection to testimony which speculated about Appellant's state of mind vis-a-vis one of the robbery complainants. (RR3: 15) Point oferror 2, Restated The trial court abused its discretion by sentencing Appellant to terms of imprisonment because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. Point of Error 3, Restated The judgments in all cases should be modified to properly reflect the proper section of the Penal Code Appellant was found to have violated. PRAYER CERTIFICATE OF SERVICE lll

4 INDEX OF AUTHORITIES Cases Asberry v. State, 813 S.W.2d 526 (Tex. App.-Dallas 1991, pet. ref' d) Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) 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.) Fairow v. State, 943 S.W.2d 895 (Tex. Crim. App. 1997) Garza v. State, 841 S.W.2d 19 (Tex. App.-Dallas 1992, no pet.) Gipson v. State, 844 S.W.2d 738 (Tex. Crim. App. 1992) 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)... 16, 17 Jaenicke v. State, 109 S.W.3d 793 (Tex. App.-Houston [1stDist.]2003, pet. ref'd) 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) Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002) iv

5 Statutes TEX. PENAL CODE 1.02(1)(B) TEX. PENAL CODE 1.02(l)(C) TEX. PENAL CODE 1.02(3) TEX. PENAL CODE TEX. PENAL CODE TEX. PENAL CODE , 19 TEX. PENAL CODE , 8, 19 Rules TEX. R. APP. P. 33.1(a)(1)(A) TEX. R. APP. P. 43.2(b) TEX. R. APP. P TEX. R. EVID. 103(a) TEX. R. EVID v

6 TO THE HONORABLE COURT OF APPEALS: COMES NOW Appellant, Darius Jamal Rustin, and submits this brief on appeal from four convictions in the 283rd Judicial District Court of Dallas County, Texas, the Honorable Rick Magnis, judge presiding. STATEMENT OF THE CASE Appellant was charged with the commission of four aggravated robberies in violation of TEX. PENAL CODE (CR1: 7; CR2: 6; CR3: 8; CR4: 10). 1 Appellant was a juvenile at the time three of the offenses were committed: Cause Nos. F T ( CR), F T ( CR), and F T ( CR. (CR1: 7, 15; CR2: 6, 12; CR3: 8, 14; RR3: 42, 111). The juvenile court waived jurisdiction and certified Appellant to stand trial as an adult on those cases. 2 (RR. SUPP: 8, 10-12). Appellant plead guilty to all four indictments. (RR2: 4, 5). The trial court found Appellant guilty on his pleas and assessed punishment at twenty-five (25) years' imprisonment in each case. (CRl: 67; CR2: 44; CR3: 43; CR4: 44; RR3: 153). 1 The clerk's record in Cause No. F T ( CR) will be referred to as CRl, the clerk's record in Cause No. F T ( CR) will be referred to as CR2, the clerk's record in Cause No. FI T ( CR) will be referred to as CR3, and the clerk's record in Cause No. FI T ( CR) will be referred to as CR4. One reporter's record from the felony trial was prepared and will be referred to as RR1 through RR3. A supplemental reporter's record, with a separate exhibit volume, was filed from the transfer proceedings held in juvenile court and will be referred to as RR. SUPP. 2 Appellant agreed to the transfer. (RR. SUPP: State's Exhibit I).

7 ISSUES PRESENTED Point of Error 1 The trial court improperly overruled Appellant's objection to testimony which speculated about Appellant's state of mind vis-a-vis one of the robbery complainants. (RR3: 15). Point of Error 2 The trial court abused its discretion by sentencing Appellant to terms of imprisonment because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. Point of Error 3 The judgments in all cases should be modified to properly reflect the proper section of the Penal Code Appellant was found to have violated. STATEMENT OF FACTS Facts of Cause Nos. F T ( CR), Fl T ( CR), and Fl T ( CR) Roddie Rodriguez On the evenmg of November 2, 2009, Roddie Rodriguez was working as a waitress/cashier at Mariscos 2000 restaurant when four people came into the restaurant wearing masks and costumes. (RR3: 9-11). Since it was so close to Halloween, Rodriguez initially thought they might be looking for candy until she noticed that two people had guns while a third had a knife. (RR3: 12, 24). The tallest of the four came up to Rodriguez and hit her with the gun. (RR3: 12, 15, 20). He demanded money. (RR3: 13). Rodriguez gave him the money from the cash register, but the gunman demanded more and hit her again. (RR3: 14 ). He also grabbed her blouse, lifted her skirt, tore her 2

8 pantyhose and hit her against a wall. (RR3: 14, 15). In all, she was hit three times with a weapon and once with a fist. (RR3: 16). She also had scratches on her neck. (RR3: 19). There were two customers in the restaurant at the time. 3 (RR3: 11, 16). One was trying to call the police on her cell phone. (RR3: 16). The men took their purses and their cell phones. (RR3: 16). While Rodriguez gave a statement to the police, she was not able to identify anyone from a photographic lineup. (RR3: 22, 23, 26). Elizabeth Odeyemi Elizabeth Odeyemi testified that she knew Appellant from Richardson High School and considered him a friend. (RR3: 28, 29). On November 2, 2009, Appellant asked if he could borrow her car, a white Mitsubishi Gallant, to go to a job interview. (RR3: 29). Odeyemi refused, but offered to take Appellant where he needed to go. (RR3: 29). She picked Appellant up that morning. (RR3: 30). Appellant again asked to borrow her car, saying he was going to a job interview with Jamal Martin, and this time Odeyemi agreed. (RR3: 30). Appellant dropped her off at her boyfriend's house. (RR3: 30). Odeyemi did not see her car again that day, though she spoke several times throughout the day to Appellant, who gave various reasons why the car had not been returned to her. (RR3: 31, 32, 33). Her car was returned to her about two weeks later. (RR3: 34). 3 Though the record is less than clear, it can be assut11ed from the indictments that the other two customers were Maria Soto and Lissette Soto. (CR2: 6; CR3: 8). 3

9 Odeyemi testified that Appellant was very "open" about his gang membership. (RR3: 34). Her boyfriend was a member of the same gang. (RR3: 35). She did not, however, know that Appellant was a heavy drug user. (RR3: 34, 37, 38). Tonya Taylor Tonya Taylor, a Dallas Police Detective, testified that she was one of the investigators on the Mariscos 2000 robbery. (RR3: 39). She identified a photograph of a vehicle, a white Gallant, in which two guns, 4 masks, robes, money and receipts were found. (RR3: 39; State's Exhibits 9-14, 19). She quickly developed four suspects - Appellant, Jamal Martin, Jonathan James and Telvin Dewberry. (RR3: 40-41). Taylor interviewed Appellant several hours after his arrest. (RR3: 42). She testified that Appellant was uncooperative and did not appear to be under the influence of any substance. (RR3: 41, 43). Facts of Cause No. Fl T ( CR) On June 4, 2010, Diego Cruz was hanging out and drinking beer with friends in the parking lot of an apartment complex in Richardson when three black men approached the group. (RR3: 47, 48, 49). One of the men grabbed "Fernando" 4 and "said for us to give them everything." (RR3: 49, 50). One of them, who was wearing a striped shirt, put a gun to Fernando's head. (RR3: 52). This same robber also hit Cruz. (RR3: 53). Cruz did not want to give up his property, so he began walking away towards his sister's apartment in that complex. (RR3: 55). The robber with the striped shirt followed and hit Cruz on his 4 Cruz explained that two of his companions that night were named Fernando. (RR3: 54). 4

10 forehead with a gun. (RR3: 55). Cruz testified that he told the robber "No, I'm not going to give you anything." (RR3: 55). Cruz was pulled into his sister's apartment and did not see a subsequent fight in the parking lot, though he did hear two or three gunshots. (RR3: 56, 59). Cruz was shown a photographic line-up, but he could not identify anyone. (RR3: 58). Jose Maldonado, who goes by the name "Fernando," was with Cruz in the parking lot when the three black men approached his group. (RR3: 61, 62, 62). One of the men put a gun to Maldonado's head and demanded his wallet, cell phone and money. (RR3: 62, 63). Maldonado complied. (RR3: 63). Cruz was going towards an apartment when the same man went and hit Cruz with a gun. (RR3: 64). Maldonado grabbed him, pulled him to the ground, and started struggling with the gunman. (RR3: 64). As they were struggling, he shot twice; the bullets went past Maldonado. (RR3: 64). The gunman was also calling for help. (RR3: 66). Maldonado broke his finger in the fight. (RR3: 64). Maldonado was able to get away to his aunt's apartment. (RR3: 66). He testified that some of the other men also fired guns. (RR3: 66). Maldonado said that all the attackers appeared to be young men, but he was unable to identify anyone from a photographic line-up. (RR3: 69). Jeremiah Goode was working as a security guard at the La Mirada Apartments in Richardson on June 4, (RR3: 70, 71). The complex was classified as high risk with lots of thefts and assaults occurring. (RR3: 71). Goode was patrolling about 9:00 p.m when he heard gunshots; two were close together with a third being later and louder. (RR3: 72, 73). Goode and Sgt. Stegman went to investigate. (RR3: 73). They saw three 5

11 people fleeing "at a full sprint." (RR3: 73). Stegman was able to detain one of the men, who wore a white shirt and was described as being "in front" of the others; this person was subsequently identified as Christopher Jarred. (RR3: 73, 74, 76). Goode detained one of the men who wore a striped shirt; he was subsequently identified as Appellant. (RR3: 73, 74, 75). The third man, who was stocky, got away. (RR3: 76). Weapons were retrieved and Appellant and Jarred were held for the Richardson police. (RR3: 78). Gang Association Ryan Brookhart, a Richardson police officer, testified that he knew Appellant from working as an officer at Appellant's school. (RR3: 80). Appellant had admitted to Brookhart being a member of the Northside Goons, or NSG, a street gang with ten!mown members in Richardson. (RR3: 81, 86, 87). According to Brookhart, Appellant was very forthcoming and "matter of fact" about his gang membership. (RR3: 82). Appellant's Testimony Appellant, testifying in his own behalf, admitted he sought gang membership at around 11 or 12 years of age. (RR3: 89-92, 112). He had no father or male role model and thought his fellow gang members loved him. (RR3: 92, 93 ). He also began using drugs at an early age, progressing from marijuana to PCP and other forms of pharmaceuticals with the help of the older gang members. (RR3: 91, 94, 95, 119, 120). He had never received any form of drug treatment. (RR3: 103). Appellant told the trial court that he stole to get money for more drugs. (RR3: 101). Indeed, he had ingested a number of drugs on the day ofthe robbery at Mariscos (RR3: 100, 121). He had only vague recollections of that day as he was "wacked 6

12 out." (RR3: ). As Appellant explained, PCP can make people "do a lot of crazy things." (RR3: 110). On June 4, 2010, the day of the parking lot incident, he had also ingested a variety of drugs. (RR3: 127). He apologized to the victims, expressed remorse for his actions and assured the trial court that he would not want to put anyone's life in jeopardy. (RR3: 101, 110). Appellant was initially released on a personal recognizance bond. (RR3: 102). He continued, however, to ingest drugs. (RR3: 102). Additionally, he was being hounded and threatened by his fellow gang members who urged him not to speak about his activities with anyone in the court system. (RR3: 103, 104). It was this pressure that caused him to commit another offense, hoping he would be left alone. (RR3: 106, 107). Appellant testified that he had become very depressed and was even suicidal while on bond. (RR3: 104). He wanted to get off drugs and to change his life. (RR3: 104, 112). He specifically asked the trial court for help and treatment. (RR3: 110, 112, ). Testimony Supporting Appellant's Application for Probation Appellant's mother, Makala Wilson, testified that she was only 17 years old when Appellant was born. (RR3: 130). His father was incarcerated during his tender years and even after his release was not a part of Appellant's life. (RR3: 131). As a child, Appellant had always done things for attention. (RR3: 131). He had far more anger issues towards his father than his mother had realized. (RR3: 131 ). Wilson testified that her son was sincere about his desire for rehabilitation and wanting help with his drug addiction. (RR3: 132, 133). She told the trial court that she 7

13 would be supportive as his mother. (RR3: 134). Wilson specifically asked the trial court to try and rehabilitate her son. (RR3: 134 ). Christopher Ambers, Appellant's probation officer from January 2008 to January 2009 at the Youth Village program, testified that he believed Appellant's mother was very supportive of her son. (RR3: 138, 140, 143). He was aware of Appellant's gang membership. (RR3: 140). Ambers also testified that he believed Appellant had a lot of anger issues, though he had seen progress during Appellant's time at Youth Village. (RR3: 139, 140). While Appellant never tested positive for drugs following a home pass, Ambers testified that he would not have been surprised if Appellant had gotten heavily into drugs. (RR3: 144, 146). SUMMARY OF ARGUMENT Issue 1: The trial court improperly admitted speculative testimony over Appellant's timely objection. Admission of this evidence cannot be deemed harmless as there can be no assurance under the facts of this case that the error did not contribute to the sentences assessed. Issue 2: The trial court abused its discretion by sentencing Appellant to terms of imprisonment. These sentences do not meet the objective of rehabilitation, nor do the sentences address Appellant's drug addiction, mental health issues, or lack of education. Rather, the sentences are merely punitive. Issue 3: Alternatively, the judgments in all cases should be modified to properly reflect that Appellant was found guilty of violating TEX. PENAL CODE as opposed to TEX. PENAL CODE

14 ARGUMENT Point of Error 1, Restated The trial court improperly overruled Appellant's objection to testimony which speculated about Appellant's state of mind vis-a-vis one of the robbery complainants. (RR3: 15). During direct examination, Roddie Rodriguez testified as to the actions of one of the four robbers as follows: (RODRJGUEZ) After that I remember he grabbed me from my blouse. He hit me against the wall. And after that I don't remember because I woke up with bruises that I don't remember being hit. Q Okay. And as far as-- What were you wearing that day? A I had a mini-skirt and a buttoned-up shirt. Q Okay. And where were your bruises at? A I had them in the back and I had one on my right breast. Q Okay. And when this guy was grabbing your clothing, what did you think that he was trying to do? A I thought his intentions were to take me into the office because he tore my -- my hose were torn. Q Okay. Your hose that-- You had hose on your legs? A Yes. Q Okay. And what did you think that his intention was if he got you back in that room? MS. BUSH: Judge, I'm going to object. That calls for speculation. THE COURT: Overruled. A His intentions were to rape me because he opened up my blouse, he raised my mini-skirt, and he tore my pantyhose. 9

15 In Spanish I begged him to leave me alone, to not harm me, and a friend of his told him to stop, to not do anything to me. ** Q Okay. The guy that hit you with the pistol and that you thought was trying to rape you, what height was he compared with the other guys? A He was the tallest one. (RR3: 14-15). Detective Taylor testified that, among the four suspects she developed for this robbery, Appellant was the tallest. (RR3: 41 ). Rodriguez, however, could not identify Appellant. (RR3: 22, 23, 26). Appellant recognizes that the Rules of Evidence permit the admission of "opinion testimony" by lay witnesses if those opinions are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. TEX. R. Evm Case law holds that "perception" refers to a witness's interpretation of information acquired through his own senses or experiences at the time of the event, i.e., things the witness saw, heard, smelled, touched, felt, or tasted. Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002). The witness must have personally observed or experienced the events about which he is testifying.!d. (citing Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997)). Here, while Rodriguez personally experienced the events which caused her to believe that the robber was trying to rape her, her testimony was not as to what she thought the robber's intentions might be or her perception of his intentions. Rather, she testified as to what the robber's actual intentions were, i.e. "his intentions were to rape 10

16 me." (RR3: 15). Absent more, this is a matter about which she could have no personal knowledge. As a result, her testimony that the robber's intentions were to rape her was speculative and based on her own fears of what might happen. This is particularly true since the record was not clear that Appellant was the robber to whom she was referring. Defense counsel's objection was meritorious and should have been sustained. The harm from permitting this testimony is apparent from the record. TEX. R. APP. P When asked about these events during cross-examination, Appellant testified that he could remember little to nothing about the robbery: Q Okay. So you went into that restaurant. And you guys planned out how you were going to go in there, right? A Sir, I don't really remember. You know what I'm saying? Q Okay. Because you guys were organized, right? A No, sir. Q I mean it wasn't like you guys all just went rushing to the counter. You guys were all positioned at different places in that restaurant; is that correct? A Sir, I don't remember. Q And those guys knew exactly what you guys were in there for and it wasn't to rape anybody, right? A I don't remember it. I don't feel that it was to rape anybody. Q Okay. Because there was a plan, right? You guys were going to go in there and rob the place and you were going to get out of there; is that right? A Sir, I don't remember. Q When did you guys buy those masks? 11

17 A I don't-- I don't remember where the masks came from. (RR3: 123). Appellant's recollection was so impaired that he could not even defend against Rodriguez's allegations of attempted rape. Additionally, during final argument to the trial court, the prosecutor argued as follows: "I mean it's not a plausible story. He's conveniently forgotten the things thatthe things that reveal to the Court who he is. He's conveniently forgotten that he was thinking about raping Roddie Rodriguez. He's conveniently-." (RR3: 151). Trial counsel objected that this was a misstatement of the evidence and that there was "no evidence that my client attempted to rape anybody." (RR3: 151, 152). The trial court sustained the objection. (RR3: 152). Nevertheless, the prosecutor continued as follows: "Judge, he's conveniently forgotten assaulting this woman, grabbing her, the holes in her hose. I mean she testified to all these things." (RR3: 152). Defense counsel made the "same objection" which the trial court overruled. (RR3: 152). The prosecutor essentially used Rodriguez's speculation concerning a rape attempt by one of the robbers to argue to the trial court that Appellant was not remorseful, was not committed to change and was a continuing danger to society. (RR3: 153). Immediately after hearing this argument, the trial court rejected Appellant's plea for probation and sentenced him to 25 years imprisonment. (RR3: 153). There is no longer a presumption a trial court will disregard inadmissible evidence. Gipson v. State, 844 S.W.2d 738, (Tex. Crim. App. 1992). Under the facts of this case, it caunot be said that Rodriguez's speculative testimony did not 12

18 influence the fact-finder or had but a slight effect on the sentence assessed. Appellant's substantive rights were violated. Appellant is entitled to a reversal and to a new trial. Point of Error 2, Restated The trial court abused its discretion by sentencing Appellant to terms of imprisonment because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. Prison sentences in these cases do not meet the objective of rehabilitation. Nor do the sentences address Appellant's drug addiction. Rather, the sentences are 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 sentences at the time of pronouncement. 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. APP. P. 33.l(a)(l)(A) (requiring a specific objection "unless the specific grounds were apparent from the context"); TEX. R. Evro. l03(a) (requiring an objection "stating the specific ground of objection, if the specific ground was not 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 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 13

19 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 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 these sentences would have served no useful purpose in this case. Appellant had freely and voluntarily entered pleas of guilty and judicially confessed to the offenses. (RR2: 4, 5). Appellant specifically asked the trial court for help. (RR3: ). Trial counsel also made an impassioned plea for probation and treatment: MS. BUSH: Your Honor, I want to argue to the Court that I believe that this is a child that is worth saving. I want to point out to the Court that he was sixteen years old when he committed this offense. That drug abuse is a cancer on our society, and that's the only antibiotic for it is treatment and intervention. This kid is a kid who has been taking his pain to the street. I believe that the testimony of the probation officer indicates that he is rehabilitatable. There has never been any appropriate intervention in his life that would cause him to change. Judge, his life is within your hands. And as you can see, he's relatively an intelligent young man... I believe this kid now is ready to change, he has changed, and that he's willing to do whatever it takes, Judge. And that if he doesn't, it's going to be in your hands. And I am not asking for a slap on the wrist in regards to this because the things he did were very, very serious, but I must point out to you, I believe that he was drug addicted. I think the evidence is that he was drug 14

20 addicted. When you let him out, he's still doing drugs. And I believe that he has a great feeling. He has a love for his family. But I believe that the circumstances surrounding his gang activity had a lot to do with where he was and what he did at that juncture in his life. So I'm going to ask the Court to take a chance on this young man. And I know you've taken a chance on him before, but he's not the same person. He's not sixteen years old. He's not a juvenile any more. He's eighteen, and I think he's ready to go forward. He does have some support out here and they believe in him and I believe in him. And I think the probation officer who just spoke to you indicated that there is something about this kid that if we can get a hold of him now at eighteen years old, maybe we can salvage him. So I'm going to ask the Court to do what you believe is appropriate in terms of trying to rehabilitate him, give him a chance to get off of drugs. And he is off drugs now, and we can see the clarity of his mind, and he does have a mind. And I think that if you intervene, Judge, and give him some structure in his life, I think we have an opportunity to save just one. (RR3: ). The only real issue before the trial court was whether to place Appellant on probation, and obviously in a treatment program for his drug addiction, 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. Additionally, motions for new trial were filed in three of the four cases. 5 (CR1: 80; CR2: 53; CR4: 53). The motions alleged that the verdicts were contrary to the law and to the evidence. (CRl: 80; CR2: 53; CR4: 53). The "verdicts" referred to in the motions were obviously the punishments assessed, as Appellant had entered pleas of guilty and 5 No motion for new trial appears in the clerk's record in Cause No. F T ( CR). All motions filed bore the other three cause numbers. (CRI: 80; CR2: 53; CR4: 53). It is logical to assume that this cause number was omitted inadvertently and the motion for new trial was meant to apply to all four cases. 15

21 the only issue for the trial court was the appropriate punishment. If any additional steps are required to preserve this issue for appellate review, the motions for new trial serve as adequate preservation. Due to the evidence presented, the arguments advanced, and the motions for new trial, Appellant is entitled to have this Court consider his arguments on the merits. 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 which permit recognition of differences in rehabilitative possibilities among individual offenders. TEX. PENAL CODE 1.02(l)(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,

22 S.W.2d at 814; see also Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978). Appellant concedes that his sentences are within the statutorily authorized range. TEX. PENAL CODE 12.32; Application of the Law to the Facts The record is undisputed that Appellant had a drug problem and was under the influence of drugs at the time he committed these offenses. (RR3: 100, 121, 127). Appellant began using drugs at an early age, progressing from marijuana to PCP and other forms of pharmaceuticals with the help of older gang members. (RR3: 91, 94, 95, 119, 120). Appellant stole to get money for more drugs. (RR3: 101). He had never received any form of drug treatment. (RR3: 103). Appellant wanted to get off drugs and to change his life. (RR3: 104, 112). He specifically asked the trial court for help and treatment. (RR3: 110, 112, ). Appellant's mother testified that her son was smcere about his desire for rehabilitation and wanted help with his drug addiction. (RR3:!32,!33). She vowed to be supportive of this effort and specifically asked the trial court to try and rehabilitate her son. (RR3:!34). Defense counsel made a strong plea for probation and treatment, noting that Appellant had the disadvantage of youth when he committed these crimes, but as an adult he was ready and willing to change. (RR3: ). When all the facts of this case are considered, it can be concluded that Appellant was a good candidate for probation. There is no reason to believe that, if Appellant received proper help, including treatment for his drug addiction, he would not be 17

23 successful on probation. This is particularly true since Appellant himself recognized that his life needed to change. 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 offenses. Where rehabilitation is possible, as it clearly 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. This is particularly true since drugs were responsible for Appellant's criminal conduct and Appellant had never received drug treatment. The prison sentences assessed in the instant cases do 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 these causes for a new punishment hearing. Point of Error 3, Restated The judgments in all cases should be modified to properly reflect the proper section of the Penal Code Appellant was found to have violated. This Court has the authority to correct the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, (Tex. App.-Dallas 1991, pet. ref d). 18

24 The record shows that Appellant was charged with and convicted of aggravated robbery in all four cases. (RR2: 4-5; RR3: 152). Aggravated robbery is proscribed by TEX. PENAL CODE However, all four judgments reflect that Appellant violated TEX. PENAL CODE (CRl: 67; CR2: 44; CR3: 43; CR4: 44). Because the record provides this Court the necessary information it needs, the Court should modify the judgments to accurately reflect the proper section of the Penal Code Appellant was found to have violated. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court will remand this case for a new punishment hearing. In the alternative, Appellant prays that this Court will modify the judgments to accurately reflect the proper section of the Penal Code Appellant was found to have violated. Lynn Pride Richardson Chief Public Defender Dallas County, Texas Ka erine A. Drew Assistant Public Defender State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas (214) (phone) (214) (fax) 19

25 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, loth Floor, Dallas, Texas, 75207, by hand delivery July 5,