ACCEPTED
07-14-00314-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
4/17/2015 10:43:47 AM
Vivian Long, Clerk
NO. 07-14-00314-CR
FILED IN
IN THE COURT OF APPEALS 7th COURT OF APPEALS
AMARILLO, TEXAS
FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
4/17/2015 10:43:47 AM
VIVIAN LONG
CLERK
Rachel Johnson
Appellant,
v.
THE STATE OF TEXAS,
Appellee,
On Appeal from Cause No. 2013-438,766
In the 137th District Court
Lubbock County, Texas
BRIEF OF APPELLANT, RACHEL JOHNSON
Respectfully submitted,
Joel Cook
State Bar No. 24044289
Attorney at Law
810 Main Street
Lubbock, Texas 79401
(806) 747-3825 (tel.)
(806) 747-3851 (fax)
ATTORNEY FOR
APPELLANT
RACHEL JOHNSON
APRIL 17, 2015
ORAL ARGUMENTS NOT REQUESTED
NO. 07-14-00314-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
Rachel Johnson
Appellant,
v.
THE STATE OF TEXAS,
Appellee,
On Appeal from Cause No. 2013-438,766
In the 137th District Court
Lubbock County, Texas
BRIEF OF APPELLANT, RACHEL JOHNSON
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:
In accordance with rule 38.1 of the Texas Rules of Appellate
Procedure, Appellant Rachel Johnson, files her Appellant’s Brief.
ii
IDENTITY OF PARTIES AND COUNSEL
1. Trial counsel for the defendant were Robin Matthews, State Bar No.
24029711, 1703 Ave. K, Lubbock, TX 79401, (806) 763-0409 and
James M. Moore, State Bar No. 24065783, 5147 69th Street, Suite D
Lubbock, Texas 79424 Phone: (806) 747-7373, Fax: (806) 747-6031
and Philip A. Wischkaemper, Lubbock Private Defender's, Office
State Bar No. 21802750, 1504 Main Street Lubbock, Texas 79401,
Phone: (806)749-0007, Fax: (806) 749-0009. Appellate counsel for
Appellant is Joel Cook, State Bar No. 24044289, Law Offices of Wm.
Everett Seymore, 810 Main Street Lubbock, Texas 79401(806) 747-
3825 (telephone), (806) 747-3851 (facsimile).
2. Trial counsel for the State were Jaret Greaser Assistant Criminal
District Attorney SBOT No. 24045974 and Matt Morrow Assistant
Criminal District Attorney SBOT No. 24081053 Lubbock County
Courthouse, 2nd Floor P.O. Box 10536 Lubbock, Texas 79408-3536,
Phone: (806) 775-1100 Fax: (806) 775-7930.
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL…………………………………...iii
TABLE OF CONTENTS…………………………………………………...iv
INDEX OF AUTHORITIES………………………………………………....v
STATEMENT OF THE CASE……………………………………………….1
ISSUES PRESENTED……………………………………………………...2
STATEMENT OF FACTS…..…………………………………………..…..2
SUMMARY OF THE ARGUMENT...………………………………………..3
STANDARD OF REVIEW………………………………………………….4
ARGUMENT……………………………………………………………...5
I. The sentence of the trial court violates the state and federal
constitutional prohibition on cruel and unusual punishment.
CONCLUSION…………………………………………………….……...9
PRAYER…………………………………………………….…………...10
CERTIFICATE OF SERVICE ……………………………………….……...11
CERTIFICATE OF COMPLIANCE …………………………….…….……...11
iv
TABLE OF AUTHORITIES
Page(s)
CASES
Harmelin v. Michigan,
501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)…….3,4,6
Johnson v. State,
864 S.W.2d 708 (Tex.App.-Dallas 1993) (en banc), aff'd, 912 S.W.2d
227 (Tex.Crim.App.1995)……………………………….…..3
Lackey v. State,
881 S.W.2d 418 (Tex.App.-Dallas 1994, writ ref'd)…...…….3,4
McGruder v. Puckett,
954 F.2d 313 (5th Cir.1992)…………………………………..4
Samuel v. State,
477 S.W.2d 611 (Tex.Crim.App.1972)……………………….3
Solem v. Helm,
463 U.S. 277 103 S.Ct. 3001 (1983)…………………………..3,4,5,6
v
STATUTES:
TEX. PEN.CODE ANN. § 29.02………………………………………....…..……..1
TEX. PEN.CODE ANN. § 29.03……………………………………..….………….1
TEX.CODE CRIM.PROC.ANN. Art. 42.12(3)……………………………………..8
SECONDARY SOURCES:
Kevin M. Beavers et al., The Nurture Versus Biosocial Debate in Criminology: On The
Origins Of Criminal Behavior And Criminality, 377-78 (2014)………….…...…….7
Lindsay M. Howden & Julie A. Meyer, Age and Sex Composition: 2010 (May 2011),
http://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf…………………….…..8
vi
STATEMENT OF THE CASE
Appellant, Rachel Johnson (“Rachel”) was charged by indictment
with a single count of Aggravated Robbery.1 After a bench trial, she was
convicted of the lesser-included offense of Robbery.2 On July 21, 2014, the
trial court sentenced her to six years in the Texas Department of
Corrections-Institutional Division.3 Rachel filed a Motion for New Trial,
alleging that the outcome of the case was “contrary to the law and the
evidence,” and a Notice of Appeal on July 28, 2014.4 The trial court
certified her right to appeal on August 1, 2014.5
1 CR.7. (The Clerk’s Record will be cited to as “CR” followed by the page number, and
the Reporter’s Record will be cited to as “RR” followed by the volume and page
number).
2 CR.68. (Robbery is a 2nd degree felony carrying a punishment range of 2-20 years while
the charge of Aggravated Robbery is a first degree felony with a punishment range of 5-
99 years to life). TEX. PEN.CODE ANN. §§ 29.02-3 (Vernon Supp.2012).
3 Id.
4 Id. at 62-66.
5 Id. at 67.
1
ISSUES PRESENTED
Did the trial court’s sentence of six years of confinement in TDCJ-ID
constitute cruel and unusual punishment?
STATEMENT OF FACTS
Rachel was eligible for probation.6 Her only prior conviction was for
a misdemeanor deferred adjudication.7 The trial court convicted her of the
lesser included offense of Robbery.8 The testimony of the responding
officer indicated that Rachel looked “…not very comfortable…” holding the
pellet gun during the robbery.9 During testimony of the victim, Rachel
apologized in open court for her actions.10 There was testimony from the
probation office that she would be a good candidate for probation.11
6 CR. 49-50.
7 RR.VI.6.
8 CR.68
9 RR.III.23.
10 RR.III.195.
11 RR.V.126; 131 (checked in regularly); RR.V.132 (no positive drug tests while on pre-
trial release); RR.VI.111.
2
SUMMARY OF THE ARGUMENT
The trial court’s decision to sentence Rachel to six years in the
penitentiary was cruel and unusual punishment when she was eligible for
probation and her criminal history was comprised of one prior misdemeanor
deferred adjudication. The Supreme Court has held that there is a narrowly
applied “proportionality rule” that can be applied to punishments that are
grossly disproportional to the underlying criminal activity giving rise to the
sentence. While the Supreme Court has applied the three-factor test laid out
in Solem in the past in assessing disproportionate sentences, recent decisions
indicate that the standard used to resolve these types of cases may not
require strict adherence to that test. It would seem that the harshness of the
sentence when compared to the gravity of the conduct may be sufficient to
warrant a reversal of a particular sentence without inquiry into the remaining
Solem factors. We would ask this Court to consider that Rachel’s sentence
in this case is grossly disproportionate to the gravity of her offense and that
this factor alone supports a finding that her sentence is cruel and unusual.
3
STANDARD OF REVIEW
Texas courts have held that a punishment is not cruel and unusual if it
is within the range authorized by statute.12 However, at least one Texas
court has concluded that sentences are reviewed to determine whether the
sentence imposed is grossly disproportionate to the crime.13 The Eighth
Amendment requires that the punishment assessed must be proportionate to
the crime.14 The Solem court set out three factors a reviewing court should
consider when determining whether an assessed sentence is disproportionate
to the offense (1) the offense's gravity and the penalty's harshness, (2) the
sentences imposed on others in the same jurisdiction for this offense, and (3)
the sentences imposed for the same offense in other jurisdictions.15 A
majority of the Harmelin court voted to affirm Harmelin's sentence, but only
four justices supported the continued application of all three Solem factors.16
12Johnson v. State, 864 S.W.2d 708, 725 (Tex.App.-Dallas 1993) (en banc), aff'd, 912
S.W.2d 227 (Tex.Crim.App.1995); Samuel v. State, 477 S.W.2d 611, 614
(Tex.Crim.App.1972).
13Lackey v. State, 881 S.W.2d 418, 421 (Tex.App.-Dallas 1994, writ ref'd) (adopting the
Fifth Circuit's interpretation of Solem and Harmelin in McGruder, 954 F.2d at 316).
14Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); but see
Harmelin v. Michigan, 501 U.S. 957, 991-93, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)
(Scalia, J., plurality op.).
15 Solem, 463 U.S. at 292.
16 See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.1992).
4
Under this standard of review, this Court should initially compare the
gravity of appellant's offense against the severity of the sentence. Only if the
Court finds that the punishment is grossly disproportionate to the offense
should it then consider the remaining Solem factors.17 The Eighth
Amendment does not require strict proportionality between crime and
sentence, but rather forbids only extreme sentences that are grossly
disproportionate to the crime.18
ARGUMENT
Rachel was sentenced to six years of confinement for robbing
someone with a pellet gun for a few hundred dollars.19 Rachel is a forty-four
year old single mother of eight children. She is physically well beyond her
“prime” in terms of potential criminal activity. She is eligible for probation
and only has one “prior conviction,” being a misdemeanor deferred
adjudication. Lastly, the probation department, which is tasked with
supervising probationers and making certain findings to the trial court
regarding sentencing, indicated to the judge prior to sentencing that Rachel
would be a good candidate for probation. Based on these factors, she should
17 See Lackey, 881 S.W.2d at 421.
18 Harmelin, 501 U.S. 957, 959, 111 S.Ct. 2680, 2683
19 RR.III.193.
5
have been given probation because the ordered punishment is grossly
disproportionate to her crime.
In Solem, the defendant was sentenced to life without parole for
issuing a “no account” check for $100.20 He was sentenced under South
Dakota’s recidivist statute based on prior felony convictions.21 After
reviewing prior decisions and the meaning and intent of the 8th Amendment,
the Supreme Court found that the sentence was grossly disproportionate to
the offense and reversed the trial court’s sentence.22
In coming to that conclusion, the court initially looked at the offense
in comparison to the sentence, but also looked at other sentences imposed on
criminals in the same jurisdiction and the sentences imposed for the same
crime in other jurisdictions.23 This came to be known as the Solem test.
However, in Harmelin, the court would revisit its 8th Amendment
jurisprudence and held that the three factor test is not always required:
“Solem is best understood as holding that comparative
analysis within and between jurisdictions is not always
relevant to proportionality review. The Court stated that “it
20 Solem, 463 U.S. at 281.
21 Id.
22 Id. at 303.
23 Id. at 291-92.
6
may be helpful to compare sentences imposed on other
criminals in the same jurisdiction,” and that “courts may
find it useful to compare the sentences imposed for
commission of the same crime in other jurisdictions.”
However, it did not make such inquiries mandatory.24
It would seem that if this Court finds that the sentence is grossly
disproportionate as a threshold matter, than it could, but does not necessarily
have to, consider the other Solem factors. In fact, Solem stated that in
determining unconstitutional disproportionality, “no one factor will be
dispositive in a given case” and that (“[N]o single criterion can identify
when a sentence is so grossly disproportionate that it violates the Eighth
Amendment”.25
The Supreme Court has held that there must be “some” proportionality
between a crime and its punishment, and that grossly disproportionate
sentences will be found unconstitutional. The question this Court must first
answer is whether the gravity of Rachel’s action justifies the severity of the
punishment. Solem’s crime dealt with a very low dollar amount, but he was
essentially sentenced for his extremely long criminal history. Here, Rachel’s
crime dealt with a similarly small monetary amount and her actions, while
24Harmelin, 501 U.S. 1004-5, quoting Solem, supra, 463 U.S. at 291-92 (emphasis
added).
25 Solem, 463 U.S. 291, n. 17.
7
callous and indifferent to the well-being of her victim, do not support six
years of incarceration.
Research indicates that Rachel is unlikely to commit any other crime
in the future, let alone another robbery.26 Scientists have noted a direct link
between age and criminal activity and found that “[a]ge is a consistent
predictor of crime, both in the aggregate and for individuals. The most
common finding across countries, groups, and historical periods shows that
crime—especially “ordinary” or “street” crime—tends to be a young
person’s activity.”27 Young being a relative term, but typically defined as
under the age of 25.28 Rachel is rapidly approaching middle age, if not
already within that demographic. While there are various definitions of
what defines middle age, The US census bureau defines it as 45-64.29 This
indicates that Rachel is rapidly declining in terms of future dangerousness
and likelihood to re-offend and that her crime in this case was most likely an
isolated incident, unlikely to be repeated.
Kevin M. Beavers et al., The Nurture Versus Biosocial Debate in Criminology: On The
26
Origins Of Criminal Behavior And Criminality, 377-78 (2014).
27 Id. at 393.
28 Id. at 377.
29 Lindsay M. Howden & Julie A. Meyer, Age and Sex Composition: 2010 (May 2011),
http://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf.
8
Rachel was eligible for probation.30 She had no been prior felony
conviction and received a sentence under 10 years for the instant offense.
Furthermore, her only “prior” was a misdemeanor deferred adjudication
from 2004, that was ultimately completed.31 There was circumstantial
evidence offered throughout the case, and direct testimony from the
probation department, that Rachel would indeed be a good candidate for
probation. Rachel had no pre-trial bond issues and no positive drug tests
while awaiting her trial. Being middle-aged, with no prior felony
convictions, and the ability for success on probation casts doubt on the trial
court’s decision to incarcerate Rachel, and calls into question the
proportionality of that decision in light of her crime.
CONCLUSION
Typically, if the Court determines that the sentence is disproportionate
to the crime, then it moves to the other Solem factors, but after Harmelin the
remaining factors may, or may not be, continuing points of inquiry for the
Court to consider when determining the overall constitutionality of a
30 See TEX.CODE CRIM.PROC.ANN. Art. 42.12(3).
31 RR.V.7; RR.VI.6.
9
sentence. In that light, We would ask this Court to consider that six years in
the penitentiary is grossly disproportionate to Rachel’s actions and that this
factor, standing alone, is sufficient to make her sentence cruel and unusual.
PRAYER
We respectfully request this Court to reverse the decision of the trial
court in respect to the punishment given to Rachel, and remand the case for a
new sentencing hearing consistent with the arguments and authorities cited
herein.
Respectfully submitted,
Joel Cook
State Bar No. 24044289
Attorney at Law
810 Main Street
Lubbock, Texas 79401
(806) 747-3825 (tel.)
(806) 747-3851 (fax)
joel_cook@outlook.com
/s/ Joel Cook
Joel Cook, Attorney for the
Appellant
CERTIFICATE OF SERVICE
10
I certify that on April 17, 2014, a true, correct, and complete copy of
this Appellant’s Brief was delivered to counsel for the State.
/s/ Joel Cook
JOEL COOK
CERTIFICATE OF COMPLIANCE
This is to certify that this document is in compliance with the word
limit set in Rule 9.4.(i)(2)(B) as determined by Rule 9.4.(i)(2) and is hereby
acknowledged in this Certificate in accordance with the Texas Rules of
Appellate Procedure 9.4.(i)(3). This document contains 1651 words.
/s/ Joel Cook
JOEL COOK
11