No. 05 09 00718 CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS VERNON TURNER, Appellant v. THE STATE OF TEXAS, Appellee Appeal from the Criminal District Court No. 5 of Dallas County, Texas Cause No. F05 53790 T APPELLANT S BRIEF Lynn Richardson Chief Public Defender Counsel of Record: Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office Katherine A. Drew State Bar Number: 24051202 Chief, Appellate Division 133 N. Industrial Blvd., LB 2 Dallas County Public Defender s Office Dallas, Texas 75207 (214) 653-3550 (telephone) (214) 653-3539 (fax) ATTORNEYS FOR APPELLANT
LIST OF PARTIES APPELLANT DEFENSE COUNSEL AT TRIAL APPELLANT S COUNSEL ON APPEAL STATE S COUNSEL AT TRIAL Vernon Turner Karen Lambert Attorney at Law 1920 Abrams Parkway, Suite 336 Dallas, Texas 75214 Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office 133 N. Industrial Blvd., LB 2 Dallas, Texas 75207 Audra Riley Assistant District Attorney Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Industrial Blvd., LB-19 Dallas, Texas 75207-4399 STATE S COUNSEL ON APPEAL Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Industrial Blvd., LB-19 Dallas, Texas 75207
TABLE OF CONTENTS LIST OF PARTIES... i INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 1 STATEMENT OF FACTS... 2 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 Point of Error... 4 The trial court abused its discretion by sentencing Appellant to ten years imprisonment because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. PRAYER... 9 CERTIFICATE OF SERVICE... 9 iii
INDEX OF AUTHORITIES CASES Brumbalow v. State, 933 S.W.2d 298 (Tex. App. Waco 1996, pet. ref d)... 7 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)... 7 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, 7 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)... 7 United States v. Autery, 555 F.3d 864 (9th Cir. 2009)... 6 United States v. Bras, 483 F.3d 103 (D.C. Cir. 2007)... 6 United States v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005)... 5 STATUTES TEX. PENAL CODE 1.02(1)(B)... 6 TEX. PENAL CODE 1.02(1)(C)... 6 TEX. PENAL CODE 1.02(3)... 6 RULES TEX. R. APP. P. 33.1 (a)(1)(a)... 4 TEX. R. EVID. 103(a)... 4 iv
TO THE HONORABLE COURT: Appellant Vernon Turner submits this brief in support of his appeal of the judgment of Criminal District Court No. 5 of Dallas County, Texas in Cause No. F05 53790 T. STATEMENT OF THE CASE A Grand Jury charged Appellant by indictment with capital murder. (CR1: 2). The State moved to reduce the offense to aggravated robbery. (CR: 11). Pursuant to a plea agreement, Appellant pled guilty, judicially confessed, and stipulated to the State s evidence. (CR: 14; RR: 5 6). The trial court accepted Appellant s plea, deferred adjudication of guilt, and placed Appellant on community supervision for ten years. (CR: 15; RR: 20). Thereafter, the State moved to proceed with an adjudication of guilt, alleging that Appellant violated the terms of his community supervision. (CR: 25 26). The State later withdrew that motion with the trial court s approval, and the conditions of Appellant s community supervision were modified to include electronic monitoring. (CR: 27 28). The State filed a second motion to proceed with adjudication of guilt, to which Appellant pled true. (CR: 35 39; RR: 24). The trial court found Appellant guilty and sentenced him to ten years imprisonment. (CR: 35; RR: 58). ISSUE PRESENTED Point of Error: The trial court abused its discretion by sentencing Appellant to ten years imprisonment because that punishment violates the objectives
of the system of prohibitions, penalties, and correctional measures in the Penal Code. STATEMENT OF FACTS Appellant testified at the hearing on the State s second motion to proceed with an adjudication of guilt. (RR: 27). As to the State s allegation that Appellant violated the terms of his community supervision by failing to attend three classes, Appellant explained that, as to two of the classes, he was waiting for his probation officer to notify him of the classes start dates and that, as to the third class, he registered for the class but was placed on the waiting list. (RR: 27 28). Appellant testified that he had been attending a required class to address substance abuse issues every Tuesday and Thursday. (RR: 28). Appellant testified to the interference of his electronic monitoring, which only allowed him to leave his home between the hours of 8:00 a.m. and 2:00 p.m., Monday through Friday. (RR: 29 30). Appellant testified that he had two jobs since being placed on community supervision one at Pilgrim s Pride, from which he was laid off, and another at On Stage, a temporary employment agency. (RR: 31, 37). Appellant testified that he had applied for a grant through the Martin Luther King Center to attend a truck driving school and had even begun attending classes, but he was arrested on the State s motion. (RR: 31). Appellant acknowledged that he was behind on payment of fines and court costs, but that he had not been employed steadily enough to be able to pay them. (RR: 32 33). Appellant also acknowledged using marijuana two or three times because he was trying to find a job, trying to go to school and [he] really wasn t getting enough 2
time to do all of this [because of the electronic monitoring]. And [he] had to do community service and everything was kind of piling up on [him]. (RR: 36). Appellant said that he had not completed community service because of logistical issues. Id. Appellant asked the trial court to continue him on community supervision. (RR: 33 34, 43). Br uanna Glover, Appellant s girlfriend, testified that she helped Appellant by giving him bus fare, taking him to sign up for his required classes, and by taking him to obtain a birth certificate and a social security car. (RR: 46 47). Glover testified that Appellant was trying to obtain his commercial driver license and that he was really trying to get on task with everything that it was that he needed to do and that [t]here were a couple of times that he got flustrated (sic) behind the things that it was he needed to do because he didn t feel like he could get them done. In the end he was able to get them done. (RR: 48). Glover said, that based on her experience with Appellant s efforts, he would be able to complete his community supervision. (RR: 51). Joann Turner, Appellant s mother, testified to Appellant s attempts to comply with the terms of his community supervision. (RR: 53). She said that He gets out and he looks for a job, you know. He s holding his head up to do better. But he promise me he wouldn t make that same mistake. So far he hasn t. (RR: 53). Turner testified that the electronic monitoring was holding him back a lot. (RR: 54). SUMMARY OF ARGUMENT 3
The trial court s sentence of ten years imprisonment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. ARGUMENT Point of Error The trial court abused its discretion by sentencing Appellant to ten years imprisonment because that punishment violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code. The trial court abused its discretion. Appellant s sentence was not necessary to prevent 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. Preservation Appellant anticipates that the State will 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. 33.1 (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, 259 60 (Tex. App. 4
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, 626 27 (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). Further, a specific objection to the sentence would have served no useful purpose in this case. Appellant had entered a plea of true to the State s motion to revoke his probation. (CR: 35 39; RR: 24). The only real issue before the trial court was the appropriate sentence. Defense counsel called Appellant, Appellant s girlfriend, and Appellant s mother, all on the issue of sentence. Counsel asked the trial court not to revoke Appellant s probation and to let him remain on probation (RR3: 57). Counsel stressed the positive influence of Appellant s girlfriend and that part of Appellant s difficulty in complying with the conditions of his probation was due to the electronic monitoring. (RR: 56 57). Counsel also recounted how Appellant attended all of his drug treatment classes, how he 5
was pursuing work where available, and how he was diligently pursuing the other classes he was required to take. (RR: 56). Hence, due to the evidence presented and the arguments advanced, a specific objection to the sentence was not required and would, in fact, have been redundant. C.f. United States v. Castro-Juarez, 425 F.3d 430, 434 (7th Cir. 2005) ( Since the district court will already have heard argument and allocution from the parties and weighed the relevant [statutory sentencing] factors before pronouncing sentence, we fail to see how requiring the defendant to then protest the term handed down as unreasonable will further the sentencing process in any meaningful way. ); United States v. Bras, 483 F.3d 103, 113 (D.C. Cir. 2007) (following Castro Juarez); United States v. Autery, 555 F.3d 864, 870 71 (9th Cir. 2009) (same). Moreover, Appellant filed a motion for new trial attacking the judgment. (CR: 41). Because Appellant pled no contest, judicially confessed, and stipulated to the State s evidence, it is obvious that the motions for new trial attack the court s sentencing determination. The motions for new trial were therefore sufficient to preserve error. 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 6
recognition of differences in rehabilitative possibilities among individual offenders. TEX. PENAL CODE 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 her sentence was within the statutorily authorized range. 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 rehabilitated. The evidence did establish that Appellant had diligently pursued work, including two different jobs and applying for a grant to attend a truck driving school, and regularly attended his drug treatment class. (RR: 28, 31, 37. The evidence also established that he had the support of a girlfriend who assisted him in pursuing a commercial driver license. (RR: 46 47). Appellant s drug use was minimal, and it was clear that Appellant s electronic monitoring was a hindrance to pursuing a 7
productive life. (RR: 29 30, 36, 54). Finally, Appellant was diligent in his attempts to take the required classes under the terms of his probation. (RR: 27 28). It is clear that the trial court did not consider rehabilitation is assessing punishment. (RR: 58). 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. This is particularly true in Appellant s case where Appellant was making diligent efforts to pursue a career. It would also be irresponsible to ignore the fact that there is wide and inconsistent sentencing in Texas and that, ostensibly, there are numerous defendants currently on probation for the offense such as Appellant s, as well as other offenses with circumstances much worse than Appellant s offense. A sentence of imprisonment in the instant case does not meet the objective of rehabilitating Appellant or permit recognition of differences in rehabilitative possibilities among offenders. Imprisoning Appellant for ten years 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 ten years imprisonment and remand this cause for a new punishment hearing. 8
PRAYER WHEREFORE, PREMISES CONSDIERED, Appellant prays that this Court will reverse the sentence and remand this cause for a new punishment hearing. Respectfully submitted, Lynn Richardson Chief Public Defender Dallas County Katherine A. Drew Chief, Appellate Division Dallas County Public Defender s Office Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office State Bar Number: 24051202 133 N. Industrial Blvd., LB 2 Dallas, Texas 75207 (214) 653-3550 telephone (214) 653-3539 fax Attorneys for Appellant CERTIFICATE OF SERVICE A copy of this brief has been hand-delivered to the Dallas County Criminal District Attorney s Office, Appellate Division, 133 N. Industrial Blvd., Dallas, Texas 75207 on November, 2009. Brian W. Portugal 9
CERTIFICATE OF COMPLIANCE I certify that this submitted CD or e-mail attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted on a CD or by e-mail attachment; 2. The CD or e-mail attachment is labeled with the following information: A. Case Name: B. The Appellate Case Number: C. The Type of Brief: D: Party for whom the brief is being submitted: E. The Word Processing Software and Version Used to Prepare the Brief: 3. The CD or e-mail attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of Texas Rules of Appellate Procedure 9.8 and 38.1(k). 4. The CD or e-mail attachment is free of viruses or any other files that would be disruptive to the Court=s computer system. The following software, if any, was used to ensure the brief is virus-free:. 5. I understand that a copy of this brief may be posted on the Court s website and that the electronically filed copy of the brief becomes part of the Court s record. 6. Copies have been sent to all parties associated with this case. (Signature of filing party and date) (Printed name) (Firm) 10