ACCEPTED
06-15-00081-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
8/10/2015 5:43:32 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00081-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE COURT OF APPEALS
8/11/2015 9:36:00 AM
SIXTH DISTRICT OF TEXAS DEBBIE AUTREY
AT TEXARKANA Clerk
BOBBY JOE EVENS,
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On Appeal from the 196th Judicial District Court
Of Hunt County, Texas
Trial Court Cause No. 27,364
Honorable Andrew Bench, Judge Presiding
APPELLANT’S BRIEF
Elisha M. Hollis (SBN 24083189)
2608 Stonewall Street
P. O. Box 1535
Greenville, Texas 75403
Tel. (903)450-2473
Fax (903)200-1290
Email: ElishaHollis@gmail.com
ORAL ARGUMENT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
Appellant: Bobby Joe Evens
Defense Counsel at Trial: Mr. Chris Castanon
2000 E. Lamar Blvd.
Suite 600
Arlington, TX 76006
Appellant’s Attorney on Appeal: Mr. Elisha M. Hollis
2608 Stonewall Street
PO Box 1535
Greenville, TX 75403
Appellee’s Attorney at Trial: Ms. Keli Aiken
Assistant District Attorney
Hunt County District Attorney
2507 Lee Street, 4th Floor
Greenville, TX 75401
Appellee’s Attorney on Appeal: Ms. Keli Aiken
Assistant District Attorney
Hunt County District Attorney
2507 Lee Street, 4th Floor
Greenville, TX 75401
Trial Judge: Hon. Andrew Bench
196th Judicial District Court
2507 Lee Street, 3rd Floor
Greenville, TX 75401
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TABLE OF CONTENTS
Identities of the Parties and Counsel .......................................................................... 2
Table of Contents ....................................................................................................... 3
Index of Authorities ................................................................................................... 4
Statement of the Case................................................................................................. 5
Issues Presented ......................................................................................................... 6
Statement of the Facts ................................................................................................ 6
Issues and Authorities ................................................................................................ 9
I. Insufficient Evidence ..................................................................................... 9
A. The evidence was legally insufficient to support a finding of guilt by
the jury. ........................................................................................................... 9
II. Grossly Disproportionate Sentence .......................................................... 11
A. The 8th amendment to the United States Constitution prohibits
grossly disproportionate sentences.. .......................................................... 11
B. The sentence in this case was grossly disproportionate to the severity
of the offense... .............................................................................................. 13
Prayer ....................................................................................................................... 14
Certificate of Service ............................................................................................... 15
Certificate of Compliance with Rule 9.4 ................................................................. 15
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INDEX OF AUTHORITIES
FEDERAL CASES:
Harmelin v. Michigan, 501 U.S. 957 (1991) ........................................................... 12
Solem v. Helm, 463 U.S. 277 (1983) ....................................................................... 11
McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992)........................................ 12
STATE CASES:
Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.-Texarkana 1999, no pet.)........ 12
Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005) .............................. 9
Washington v. State, 127 S.W.3d 197 (Tex. App. Houston 2003) ............................ 9
U. S. CONSTITUTION
U.S. Const. Am. VIII ............................................................................................... 11
TEXAS CONSTITUTION:
TX. Const. Art. 1 Sec. 13 ......................................................................................... 11
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NO. 06-15-00081-CR
IN THE COURT OF APPEALS
SIXTH DISTRICT OF TEXAS
AT TEXARKANA
BOBBY JOE EVENS,
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On Appeal from the 196th Judicial District Court
Of Hunt County, Texas
Trial Court Cause No. 27,364
Honorable Andrew Bench, Judge Presiding
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
NOW COMES counsel for appellant and respectfully submits this brief
pursuant to the rules of the Texas Rules of Appellate Procedure.
STATEMENT OF THE CASE
This is an appeal from the judgment and sentence in a criminal case in the
5
196th District Court in Hunt County, Texas. The Appellant was indicted on May
27, 2011 for Possession of a Controlled Substance, with Intent to Deliver, Namely:
Cocaine, Four Grams or More but Less than Two Hundred Grams. After entering a
plea of Not Guilty, Appellant elected to be tried and sentenced by a jury.
On April 10, 2015 the jury found Appellant guilty and made a finding of true
to two or more enhancements. The jury assessed punishment at 75 years in the
Texas Department of Criminal Justice – Institutional Division. Appellant filed a
notice of appeal on May 05, 2015.
ISSUES PRESENTED
ISSUE ONE: The evidence presented in this case was legally insufficient to
support a conviction of the Appellant.
ISSUE TWO: The consecutive sentence in this case is unconstitutional under the
8th amendment of the United States Constitution in that it is grossly
disproportionate to the offense and is therefore cruel and unusual.
STATEMENT OF FACTS
Appellant, BOBBY JOE EVENS (hereinafter, “Appellant”) was indicted on
May 27, 2011 for Possession of a Controlled Substance, with Intent to Deliver,
Namely: Cocaine, Four Grams or More but Less than Two Hundred Grams (CR 6-
6
7)1. Appellant entered a plea of Not Guilty on August 17, 2011 (CR 8), and elected
to be tried and sentenced by a jury on April 06, 2015. (RR vol. 4, 5:18-23).
On April 09, 2015, trial on the merits began. (RR vol. 5, 1:1-25). The state
called Investigator Warren Mitchell who testified that on May 26, 2011 he was
conducting surveillance on the Appellant and Misty Brigham who were suspects
of a drug conspiracy. (RR vol. 5, 42:14-43:22). The Appellant and Brigham were
moving things from a hotel room to their vehicles. (RR vol. 5, 43:23-44:14). After
they had finished, the Appellant drove off with Brigham following him. (RR vol. 5,
44:8-9). Investigator Mitchell then called for an officer to do a traffic stop on the
Appellant. (RR vol. 5, 45:10-13). Officer Stillwagoner testified that he conducted a
traffic stop on the Appellant for a malfunctioning brake light. (RR vol. 5, 28:14-
18). Misty Brigham who was following the Appellant stopped when the Appellant
was pulled over. (RR vol. 5, 29:11-14). Investigator Warren Mitchell testified that
he approached Misty Brigham and she ultimately turned over some marijuana to
him. (RR vol. 5, 49:3-9). After Arresting her for possession of marijuana, Ms.
Brigham was taken to the Greenville Police Station. (RR vol. 5, 51:20-25). Once
there, she asked to use the restroom. (RR vol. 5, 53:3-6). Investigator Felicia White
was then called to do a search of Ms. Brigham in which 187.3 grams of crack
1
References to the Clerk’s Record are designated as “CR #”, references to the Reporter’s Record
are designated RR Vol. ___, page #: line #, and State and Defendant’s exhibits are designated SX
and DX, respectively).
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cocaine was found. (RR vol. 5, 67:1). Ms. Brigham told them that the drugs
belonged to the Appellant. (RR vol. 5, 55:16-22).
The State called Misty Brigham who testified that she was the girlfriend of
the Appellant at the time of this incident. (RR vol. 5, 104:7-8). According to Ms.
Brigham, the Appellant had placed the crack cocaine in her purse. (RR vol. 5,
97:20). When she got pulled over she then moved the drugs from her purse to her
underwear. (RR vol. 5, 97:3-5). She stated that the Appellant was planning on
taking the crack cocaine back later. (RR vol. 5, 98:9-12).
The State also presented, and the trial court admitted, prior testimony of the
Appellant through SX 29. (RR vol. 5, 71:6). In the testimony the following
dialogue takes place between an attorney and the Appellant:
Q Now, in regards to Misty Brigham, back in May of 2010, were you aware that she was
stopped with over 200 grams of crack cocaine?
A Yes, sir.
Q And whose crack cocaine was that that she was carrying on May 26, 2010?
A It was mine.
Though the State relied on this prior testimony to claim that the Appellant had
admitted that the 187.3 grams of crack cocaine found on Misty Brigham was his,
the Appellant testified that this testimony was taken out of context and was not
such an admission. (RR vol. 5, 139:4-24). The Appellant testified that he had given
Misty Brigham 14 grams of crack cocaine for her to take to his nephew on that
day. (RR vol. 5, 139:14-17). She then met his nephew Chase Grant and delivered
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the 14 grams to him. (RR vol. 5, 139:16-17). The Appellant contended that he had
no knowledge of the larger quantity of crack cocaine Misty Brigham was carrying
and stated that when he was asked whether the crack cocaine was his he was
referring to that 14 grams. (RR vol. 5, 141:6-9).
At the close of evidence the jury found the Appellant guilty of manufacture
or delivery of the crack cocaine (RR vol. 5, 224:20-24) and sentenced him to 75
years in the Texas Department of Criminal Justice. (RR vol. 6, 85:23). In
sentencing the Appellant, the trial court ordered that the 75 year sentence was to
run consecutive to a Life sentence the Appellant had received in a prior case. (RR
vol. 6, 96:9-17).
ISSUES AND AUTHORITIES
I. Insufficient Evidence
A. The evidence was legally insufficient to support a finding of guilt by the
jury.
In a criminal case, an appellant may raise legal sufficiency for the first time
on appeal. Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ]
2003, pet. Dism'd). When reviewing legal sufficiency of the evidence, a court
must look at all of the evidence in the light most favorable to the verdict to
determine whether any rational Trier of fact could have found the essential
elements of the offense were proven beyond a reasonable doubt. Jackson v.
9
Virginia, 443 U.S. 307, 319; Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim.
App. 2005).
In the present case, there was no reliable evidence that the Appellant
manufactured or delivered the crack cocaine in question. Outside of testimony
from the Appellant, the State presented evidence that Misty Brigham was arrested
with 187.3 grams of crack cocaine on her person (RR vol. 5, 67:1), that Misty
Brigham immediately claimed it belonged to the Appellant (RR vol. 5, 97:20), that
the Appellant was with Misty Brigham the day of her arrest (RR vol. 5, 44:6-14),
that Misty Brigham released her car to the Appellant (RR vol. 5, 50:23-51:2), and
that a police K-9 alerted to the presence of a drug on the door handles of
Appellant's vehicle. (RR vol. 5, 31:19-32:2). These things alone provide very little
proof that the Appellant was connected to the 187.3 grams of crack cocaine in
question. Knowing Misty Brigham and having her car released to him does not
mean that the Appellant is her accomplice. Also, the fact that Misty Brigham
claimed that the drugs were not hers is not surprising at all. Furthermore, the fact
that a police K-9 alerted to the door handle of Appellant's vehicle is not unexpected
since he was helping her move and she was putting things in his vehicle while in
possession of drugs including the crack cocaine and the marijuana that was also on
her.
Thus, the evidence that is really in question comes from the testimony of the
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Appellant. Appellant testified that the crack cocaine in Misty Brigham's possession
was not his. When confronted with prior testimony concerning Misty Brigham's
arrest, the Appellant stated that, though his prior testimony appeared to
acknowledge that the crack cocaine was his, it was a misunderstanding. (RR vol. 5,
139:4-24). He stated that the question was not fully clarified in the prior testimony
and that his answer concerning ownership of drugs in Misty Brigham's possession
had to do with 14 grams of crack cocaine he had given to her earlier in the day in
question. (RR vol. 5, 139:14-17).
Therefore, the question is whether any rational Trier of fact could have found
that, despite Appellant's testimony to the contrary, the crack cocaine was
manufactured or delivered by the Appellant. Given the circumstances surrounding
the incident and the lack of evidence connecting the Appellant to the drugs besides
Misty Brigham who clearly needed to "dodge a bullet," no rational Trier of fact
could have found the essential elements necessary to prove beyond a reasonable
doubt that the Appellant manufactured or delivered the 187.3 grams of crack
cocaine at issue in this case.
II. Grossly Disproportionate Sentence
A. The 8th amendment to the United States Constitution prohibits grossly
disproportionate sentences.
The 8th amendment to the United States Constitution states that "[e]xcessive
11
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." U.S. Const. Am. VIII. The Texas constitution has a similar
provision stating that "cruel or unusual punishment" shall not be inflicted. TX.
Const. Art. 1 Sec. 13. In the progeny of cases interpreting the 8th amendment
prohibition on cruel and unusual punishment in conjunction with non-capital cases,
Solem v. Helm, 463 U.S. 277 (1983) was the leading case for many years. See
McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992). Solem set out the
following factors to measure the proportionality of a sentence compared to a crime:
(1) the gravity of the offense relative to the harshness of the penalty, (2) the
sentences imposed for other crimes in the jurisdiction, and (3) the sentences
imposed for the same crime in other jurisdictions. Solem, 463 U.S. at 292.
Solem was later overruled by Harmelin v. Michigan, 501 U.S. 957 (1991).
Harmelin was a plurality opinion in which Justice Scalia and the Chief Justice
believed that there was no guarantee of a proportional sentence in the eighth
amendment while Justice Kennedy joined by two other Justices agreed that the
eighth amendment did prohibit sentences that were grossly disproportionate. Id. at
1001. The 5th Circuit of Appeals later wrote an analysis of Harmelin in which they
determined that the 8th amendment right against disproportional sentences was still
proper under Harmelin. McGruder at 316. The Sixth Court of Appeals has adopted
the analysis in McGruder holding that a sentence cannot be grossly
12
disproportionate to the offense. Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.-
Texarkana 1999, no pet.). The court in Jackson held that, to determine whether a
sentence violates the 8th amendment of the U.S. Constitution, a court should weigh
"the gravity of the offense against the severity of the sentence." Id. If the sentence
is found to be grossly disproportionate, then a court should then compare the
sentence to other sentences for similar crimes in this and other jurisdictions. Id.
B. The sentence in this case was grossly disproportionate to the severity of
the offense.
In the present case, the Appellant was convicted of manufacture or delivery
of 187.3 grams of crack cocaine (RR vol. 5, 224:20-24; RR vol. 5, 67:1) for which
the Appellant was sentenced to 75 years. (RR vol. 6, 85:23). The Appellant had
previously been sentenced to Life in prison for manufacture and deliver of cocaine
in a prior case. (RR vol. 6, 91:1-5). Over Appellant's objection (RR vol. 6, 92:13-
14), the court granted the State's motion for a cumulative sentence and ordered that
the 75 year sentence would run consecutively to the Life sentence. (RR vol. 6,
96:9-17). In doing so, the court technically sentenced the Appellant to life without
parole. (RR vol. 6, 91:1-5; 93:7-9).
The sentencing range for the crime Appellant was convicted of including
enhancements was from 25-99 years or Life. Life without parole is not within the
range of punishment set out by the Texas legislature for this crime. In fact, as this
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Court knows, it is reserved for capital felonies which almost exclusively involve
murder. Thus it is clear that being sentenced to prison for the entirety of your
remaining life is something that should be reserved for the most heinous crimes,
yet the court in this case "stacked" the Appellant's sentence on his prior sentence
with the intent of giving the Appellant the equivalent of life without parole. (RR
vol. 6, 93:7-9). Here, the Appellant did not commit a crime of violence or a crime
against a person. Furthermore, there is no firearm involved in this case and no
allegation that there ever was one used. Therefore, running the Appellant's
sentence consecutively with his prior sentence resulted in a grossly
disproportionate sentence to the crime of manufacture or delivery of cocaine and is
unconstitutional under the 8th amendment.
CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that his
judgment in the above entitled and numbered cause be reversed and rendered.
Appellant further prays for all other lawful relief to which he may be entitled, at
law or in equity.
Respectfully submitted,
By: /s/ Elisha Hollis
Elisha Hollis
The Law Office of Elisha Hollis
PO Box 1535
14
Greenville, Texas 75403
903-450-2473 (ph)
903-200-1290 (fax)
ElishaHollis@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Appellant’s Brief was delivered by
hand delivery to the Honorable Noble Walker, Hunt County District Attorney,
2507 Lee St., 4th Floor, Greenville, TX 75401 on this the 10th day of August,
2015.
I further certify that a true and correct copy of Appellant’s Brief was sent by
first class United States mail, postage prepaid to BOBBY JOE EVENS, TDJC #
1995944, Polunsky Unit, 3872 FM 350 South, Livingston, TX 77351 on this the
10th day of August, 2015.
/s/ Elisha Hollis
Elisha Hollis
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that this
document complies with the type volume limitations because it is computer
generated and does not exceed 15,000 words. Using the word count feature of
Microsoft Word, the undersigned certifies that this document contains 1,971 words
in the entire document, except in the following sections: caption, identities of
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parties and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, signature,
certificate of service and certificate of compliance. This document also complies
with the typeface requirements as it has been prepared in a proportionally spaced
typeface using Microsoft Word in 14-point Times New Roman.
/s/ Elisha Hollis
Elisha Hollis
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