ACCEPTED
12-15-00109-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/15/2015 7:22:34 PM
Pam Estes
CLERK
CAUSE NO. 12-15-00109-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
10/15/2015 7:22:34 PM
IN THE 12th COURT OF APPEALS PAM ESTES
Clerk
OF TEXAS
LEOPOLDO TOVAR
Appellant,
vs.
THE STATE OF TEXAS,
Appellee.
APPEALING THE TRIAL COURT ACTION, CAUSE NO. 30489
ISSUANCE OF PUNISHMENT, FROM THE 3RD DISTRICT COURT
OF ANDERSON COUNTY, TEXAS
HONORABLE DEBORAH OAKS EVANS, PRESIDING
APPELLANT’SBRIEF
STEPHEN EVANS
SBN: 06717580
NO ORAL ARGUMENT REQUESTED LAW OFFICE OF STEPHEN EVANS
1000 NORTH CHURCH
P.O. BOX 754
PALESTINE, TEXAS 75802
903-723-3334 Fax: 903-723-0124
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
The parties to the trial Leopoldo Tovar Defendant
court’s judgment are:
The State of Texas Prosecution
Trial counsel were: Scott Nicholson Defense Counsel
Attorney at Law
901 N. Perry St
Palestine, Texas 75801
Anderson County District Attorney State
Anderson County Courthouse
Palestine, Texas 75801
903-723-7403
Appellate counsel are: Stephen Evans Appellant
1000 N. Church
P.O. Box 754
Palestine, Texas 75802
903-723-3334 Fax: 903-723-0124
Email: sevanslaw@aol.com
Allyson Mitchell State of Texas
Anderson County District Attorney
Anderson County District Attorney’s Office
Appellate Section
Address above
PRESDING JUDGE IS UNRELATED TO APPELLANT COUNSEL
i
TABLE OF CONTENTS
....................................... i
Identity of Parties and Counsel.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities..
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Constitutions, Codes and Statutes..
.............................................v
Statement of the Case..
................................................ 1
Issues Presented..
.............................................. 2
Statement of Facts...
........................................ 3
Summary of the Arguments..
.................................................4
Notation Glossary.
...................................5
Points, Arguments, and Authorities..
.............................................. 5
Point of Error No. 1..
......................................................... 8
Prayer.
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ii
INDEX OF AUTHORITIES
United States Court Cases
Harmelin v. Michigan, 501 U.S. 957 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Jackson v. Virginia, 443 U.S. 307, (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Solem v. Helm, 463 U.S. 277, (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Texas Court Cases
Alberto v. State, 100 S.W.3d 481, (Tex.App.-Texarkana 2003, no pet.).. . . . . . . 6
Cienfuegos v. State, 113 S.W.3d, (Tex.App.-Houston [1st Dist], pet. ref’d).. . . . . 6
Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004).. . . . . . . . . . . . . . . . . . . 6
iii
Constitutions, Codes and Statutes
......................................
U.S. Const. Amend VIII. 6
.....................................
Tex. Const. art. I, sec. 13. 6
...................................
Tex. Crim. Proc. art. 42.12.. 5
v
STATEMENT OF THE CASE
This is a direct appeal of sentence on a single felony count, derived from a motion
to revoke probation. The Appellant plead true to certain counts, and then hearing
was conducted in regard to the pending motion. After hearing to the trial court, the
presiding judge found the allegations with the exception of Allegation No. 1, as listed
in the motion, “True”, and then the Appellant was sentenced by the presiding judge,
receiving 10 years TDCJ-ID. All appropriate notices of appeal, record, and other
statutory requisites of appeal were timely filed and jurisdiction is before this court
for review of the trial court conduct. Appellant is appealing the resulting sentence
presented.
v
ISSUES PRESENTED
POINT OF ERROR ONE:
THE SENTENCE ISSUED BY THE TRIAL COURT W AS
DISPROPORTIONATE TO THE FACTS OF THE CASE, RESULTING IN A
CRUEL AND UNUSUAL PUNISHMENT ASSESSED.
1
STATEMENT OF FACTS
This case involves a motion to revoke probation, which was originally the
issued sanction for the offense of Driving While Intoxicated, 3rd or More, committed
on or about the 22nd day of January, 2011. The Appellant received a 10 year
probated sentence, which was the subject of this motion to revoke. Appellant plead
true to the allegations cited in the Motion to Revoke, but for Allegation No. 1. The
trial court conducted hearing on the matter, and after receiving testimony from both
the State and Defense, found the allegations true, but for Allegation No. 1.
(Judgment) The trial court issued sentence of 10 years TDCJ-ID, with certain time
credit as captioned in the judgment. Appellant presents argument herein that the
sentence imposed was excessive and that the matter should be remanded for
reconsideration.
2
SUMMARY OF THE ARGUMENTS
POINT OF ERROR ONE:
The evidence presented by the state during the motion hearing failed to
provide factually and constitutionally sufficient support for the sentence of the
trial court.
3
NOTATION GLOSSARY
R.R. .............................. Reporter’s Record
C.R. .............................. Clerk’s Record
4
POINTS, ARGUMENTS, AND AUTHORITIES
THE SENTENCE ISSUED BY THE TRIAL COURT WAS DISPROPORTIONATE
TO THE FACTS OF THE CASE, RESULTING IN A CRUEL AND UNUSUAL
PUNISHMENT ASSESSED.
I.
As shown by the record, ( R.R., Vol. 1, pg. 11), the Appellant entered a
plea of “True” to all of the allegations contained in the subject Motion to Revoke,
but for Allegation No. 1, which was a new unadjudicated offense. The trial court
heard evidence from the State in support of its motion and the sought sanction,
as well as evidence presented by the Appellant in regard to his personal
character, facts of income and support, as well as his general demeanor and
behavior while on probation. Upon the conclusion of the evidence, the Trial
Court found the plead allegations true, revoking the probation, and issuing
sentence of 10 years, TDCJ-ID. Admittedly, the sentence issued by the trial
court was well within that statutory range. However, the Appellant would submit
that the sentence should be subject to review, in that the evidence submitted
during the punishment phase of trial would strongly support the imposition of
community supervision, being deferred adjudication, as was within the realm of
options available to the court in this circumstance. Tex.Code Crim. Proc. art.
42.12.
5
A reasonable review of the imposed sentence would seem to show that the
sentence is without reproach as it was within the statutory parameters, but still
subject to a standard of review as to sufficiency under Jackson v. Virginia, 443
U.S. 307, (1979), and followed under this State’s holdings such as Zuniga v.
State, 144 S.W.3d 477 (Tex.Crim.App.,2004). A reviewing court should make a
determination as to whether the evidence submitted supports the sentence
imposed. Here, the trial court was provided with insufficient evidence to support
the finding of a new criminal offense, by even the applicable standard of a
preponderance of the evidence, and the Appellant presented witnesses
supporting that the trial court would have been better advised to issue
modification of the probation at worst. ( R.R., Vol. 1, Pg 52 thru 94.)
The adequate proportionality of an imposed sentence, as governed by the
8th Amend. U.S. Const., and Art. 1, Sec. 13 of the Texas Constitution, has been
developed through the holding authored in Solem v. Helm, 463 U.S. 277 (1983),
Harmelin V. Michigan, 501 U.S. 957 (1991), Alberto v. State, 100 S.W.3d 481,
(Tex.App.-Texarkana 2003, no pet.), and generally Cienfuegos v. State, 113
S.W.3d 481 (Tex.App-Houston [1st Dist.], 2003, pet. ref’d).
While the foregoing citations do express in their holdings that due
deference is accorded to the trial court in its sentencing result, such action is not
wholly immune from review by an appellate court where there are significant
6
factors present that would demonstrate that the resulting sentence was in fact
disproportionate to the facts of the case and the evidence submitted. A threshold
comparison of the gravity of the offense against the severity of the sentence
should be conducted, to pursue a finding as to whether the sentence is in fact
disproportionate given the facts of the case and the evidence presented during
the trial of the matter. The evidence presented did not exhibit any true threat to
the community that would merit incarceration, but rather would have maintained a
productive member of that community, contributing to the welfare of his family
and dependents as well.
Appellant presents that the option of modified community supervision was cast
aside without due and appropriate consideration, and that such was tantamount to
an abuse of discretion by the trial court, which should merit the entry of an order to
vacate the imposed sentence, and remand for retrial with instructions to give
adequate review of the evidence in support of the imposition of modified
community supervision.
7
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
that this Court vacate the sentence of the trial court and remand for new trial, and
for such other and further relief as he may show himself deserving, at law and in
equity.
Respectfully submitted,
/s/ Stephen Evans
STEPHEN EVANS
LAW OFFICE OF STEPHEN EVANS
1000 NORTH CHURCH
P.O. BOX 754 PALESTINE,
TEXAS 75802
903-723-3334 FAX: 903-723-0124
SBN: 06717580
ATTORNEY FOR APPELLANT
8
CERTIFICATE OF SERVICE
This is to certify that a copy of this brief has been forwarded via electronic
email attachment delivery, to the office of the Anderson County District Attorney,
on the 15th day of October, 2015.
/s/ Stephen Evans
STEPHEN EVANS
CERTIFICATE OF COMPLIANCE
This is to certify that the foregoing brief is in compliance with the
Texas Rules of Appellate Procedure, (2013), in the word content of the brief,
with such brief containing 1,329 words.
October 15, 2015
/s/ Stephen Evans
Stephen Evans
9
Leopoldo Tovar v. State
Combined Opinion