ACCEPTED
13-15-00208-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
8/3/2015 12:34:32 PM
CECILE FOY GSANGER
CLERK
NO. 13-15-00208-CR
* * * * * * * * * * * * * * * * * * * * * * * *FILED
* *IN* *
13th COURT OF APPEALS
IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH DISTRICT 8/3/2015 12:34:32 PM
CORPUS CHRISTI, TEXAS CECILE FOY GSANGER
Clerk
****************************
VIRGINIA FAYE HOLLOWAY,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
****************************
On Appeal from Cause No. 14-7-9253
in the 24th Judicial District Court
of Jackson County, Texas
****************************
STATE’S REPLY BRIEF
****************************
ROBERT E. BELL
District Attorney
State Bar Card No. 02086200
Jackson County Courthouse
115 West Main Street
Edna, Texas 77957
JIM VOLLERS
State Bar Card No. 20609000
2201 Westover Road
Austin, Texas 78703
ATTORNEYS FOR THE STATE
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IDENTITY OF PARTIES AND COUNSEL
1. Robert E. Bell
Criminal District Attorney, Jackson County
State Bar Card No. 02086200
Jackson County Courthouse
115 West Main Street
Edna, Texas 77957
Email: ef_mitchell@yahoo.com
Jim Vollers
Attorney at Law
State Bar Card No. 20609000
2201 Westover Road
Austin, Texas 78703
Email: jimvollers@att.net
Attorneys for the State
2. Virginia Faye Holloway
Appellant
3. W. A. Bill White
Attorney at Law
State Bar Card No. 00788659
P. O. Box 7422
Victoria, Texas 77903
Email: lawbill0994@att.net
Attorney for Appellant
4. Honorable Stephen Williams, District Judge
24th Judicial District Court, Jackson County Courthouse
115 West Main Street
Edna, Texas 77957
Email: kwilliams@cscd.net
Trial Judge
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TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
APPELLANT’S ISSUE PRESENTED (RESTATED) . . . . . . . . . . . . 3
APPELLANT’S SENTENCE OF 10 YEARS IN PRISON
CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . 4
PRESERVATION OF ERROR . . . . . . . . . . . . . . . . . . . . 4
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . 9
iii
INDEX OF AUTHORITIES
CASES: PAGE
Contreras v. State, 369 S.W.3d 689
(Tex.App.-Tyler 2012) . . . . . . . . . . . . . . . . . . . . . . 6
Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680,
115 L.Ed.2d 836 (1991) . . . . . . . . . . . . . . . . . . . . . 5, 6
Harris v. State, 656 S.W.2d 481 (Tex.Crim.App. 1983) . . 5
Harris v. State, 204 S.W.3d 19
(Tex.App.-Houston [14th Dist] 2006, pet. ref’d). . . . . 6, 7
Jordan v. State, 495 S.W.2d 949 (Tex.Crim.App. 1973). . 5
Keeter v. State, 175 S.W.3d 756, 760
(Tex.Crim.App. 2005) . . . . . . . . . . . . . . . . . . . . . . . 4
McGruder v. Puckett, 954 F.2d 313, 315-16
(5th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Mercado v. State, 718 S.W.2d 291
(Tex.Crim.App. 1986)(en banc) . . . . . . . . . . . . . . . . 5
Quintana v. State, 777 S.W. 2d 474, 479
(Tex.App.-Corpus Christi 1989, pet. ref’d) . . . . . . . . . 5
Rummel v. Estelle, 445 U.S. 263 . . . . . . . . . . . . . . . . . . 6
Samuel v. State, 477 S.W.2d 611 (Tex.Crim.App. 1972). . 5
Simmons v. State, 944 S.W.2d 11, 14
(Tex.App.-Tyler 1996, pet. ref’d) . . . . . . . . . . . . . . . 6
Smith v. State, 721 S.W.2d 844, 855
(Tex.Crim.App. 1986) . . . . . . . . . . . . . . . . . . . . . . . 4
iv
Solem, 463 U.S. at 290-91, 103 S.Ct. 3001 (1983) . . . . . . 5, 6
Solis v. State, 945 S.W.2d 300, 301
(Tex.App.-Houston [1st Dist.] 1997, pet. ref’d). . . . . . 4
Sullivan v. State, 975 S.W.2d 755, 757-58
(Tex.App.-Corpus Christi 1998, no pet.) . . . . . . . . . . 6
Trevino v. State, 174 S.W.3d 925 (pet. ref’d) . . . . . . . . . 4, 5, 6
TEXAS RULES OF APPELLATE PROCEDURE:
Rule 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
v
NO. 13-15-00208-CR
IN THE COURT OF APPEALS
THIRTEENTH DISTRICT
CORPUS CHRISTI, TEXAS
****************************
VIRGINIA FAYE HOLLOWAY,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
****************************
On Appeal from Cause No. 14-7-9253
in the 24th Judicial District Court
of Jackson County, Texas
****************************
STATE’S REPLY BRIEF
****************************
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, appellee herein, by
and through the Criminal District Attorney of Jackson County, Texas,
and files this, its reply brief in the above-styled cause, requesting
1
that the judgment of the trial court be in all things affirmed, and as
grounds therefore would show unto the Court the following:
STATEMENT OF THE CASE
Appellant was indicted for the offense of felony driving while
intoxicated. The indictment also alleged a prior felony conviction for
driving while intoxicated making the charge a second degree felony.
Appellant waived a jury and entered her plea of guilty to the court
without a recommendation. (R. Vol. 2, pp. 4 – 8). Appellant pled
true to the enhancement paragraph alleging a prior final felony
conviction for the offense of driving while intoxicated. (R. Vol. 2, p.
8). Evidence was presented to the court by both the State and the
appellant, and at the conclusion of the evidence, the court found
appellant guilty of the offense alleged in the indictment and assessed
punishment at ten (10) years in the Texas Department of Criminal
Justice. (R. Vol. 3, p. 50).
STATEMENT OF FACTS
This record reveals that prior to the instant driving while
intoxicated offense for which appellant was convicted in this cause
she had been convicted of three misdemeanor driving while
2
intoxicated offenses, two felony driving while intoxicated offenses,
driving while her license was suspended, assault on a public servant,
retaliation, silent abusive calls to 911 and criminal mischief.
Additionally, she had been charged with two other misdemeanor
driving while intoxicated offenses which were disposed of by
consideration when she pled guilty on other offenses. The evidence
also indicated that she was an alcoholic; however, attempts to treat
her while on probation were unsuccessful.
APPELLANT’S ISSUE PRESENTED (RESTATED)
APPELLANT’S SENTENCE OF 10 YEARS IN PRISON
CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.
SUMMARY OF THE ARGUMENT
Appellant voiced no objection in the trial court on the grounds
which she now presents and the issue has been waived. Nothing has
been preserved for review. Even if the issue had been preserved for
review, the punishment assessed is within the statutory range of
punishment set by the legislature and, especially in light of
appellant’s prior convictions is not excessive for the offense
committed and is not cruel and unusual punishment.
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ARGUMENT AND AUTHORITIES
PRESERVATION OF ERROR
This record is clear that appellant made no objection to her
sentence to the trial court either at sentencing or at any post-trial
motion, nor did she ever lodge an objection, under constitutional or
other grounds, to the alleged disparity, cruelty, unusualness or
excessiveness of the sentence. It has long been the rule that even
constitutional claims can be waived by failure to object. Smith v.
State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). In order to
preserve an error for appellate review, the appellant must present a
timely objection to the trial court, state the specific grounds for the
objection, and obtain a ruling. Tex. R. App. P., Rule 33.1(a), “All a
party has to do to avoid the forfeiture of a complaint on appeal is to
let the trial judge know what he wants, why he thinks himself entitled
to it, and to do so clearly enough for the judge to understand him at
a time when the trial court is in a proper position to do something
about it.” Keeter v. State, 175 S.W.3d 756, 760 (Tex.Crim.App.
2005). This Court, in Trevino v. State, 174 S.W.3d 925 (pet. ref’d),
relying upon Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston
4
[1st Dist.] 1997, pet. ref’d), Quintana v. State, 777 S.W.2d 474,
479 (Tex.App.-Corpus Christi 1989, pet. ref’d), and Mercado v.
State, 718 S.W.2d 291 (Tex.Crim.App. 1986)(en banc), concluded
that by failing to object to the trial court’s sentence below, appellant
forfeited his complaint on appeal that his sentence constituted cruel
and unusual punishment. In Trevino, this Court went on to
conclude that even absent forfeiture appellant’s punishment which
fell within the limits prescribed by valid statute was not excessive,
cruel or unusual, citing Harris v. State, 656 S.W.2d 481
(Tex.Crim.App. 1983); Jordan v. State, 495 S.W.2d 949
(Tex.Crim.App. 1973); and Samuel v. State, 477 S.W.2d 611
(Tex.Crim.App. 1972).
In the present appeal, appellant also complains that her
sentence of ten years is disproportionate to the crime. In Trevino
this Court addressed that issue by pointing out:
“Importantly, as Trevino argues, it has been held that a
sentence within the range of punishment may still violate
the Eighth Amendment if it is grossly disproportionate to
the offense committed. Solem, 463 U.S. at 290–91, 103
S.Ct. 3001 (1983). However, the viability and mode of
application of proportionate analysis in non-death penalty
cases has been questioned since the Supreme Court's
decision in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct.
5
2680, 115 L.Ed.2d 836 (1991). See McGruder v.
Puckett, 954 F.2d 313, 315–16 (5th Cir.1992) (discussing
the various opinions issued in Harmelin, 501 U.S. at 957,
111 S.Ct. 2680, and their impact on the Solem decision).
In the present case, even if error had been preserved as
to this argument, and assuming for purposes of Trevino's
argument the viability of a proportionality review, twenty-
five years in prison is not a grossly disproportionate
sentence considering the evidence presented as to the
offense. We need not consider its application today
because the proportionality issue was not preserved and
because no evidence as to the last two Solem factors was
submitted to the trial court. See Solem, 463 U.S. at 292,
103 S.Ct. 3001; Sullivan v. State, 975 S.W.2d 755, 757–
58 (Tex.App.-Corpus Christi 1998, no pet.); Simmons v.
State, 944 S.W.2d 11, 14 (Tex.App.-Tyler 1996, pet.
ref'd).” (Trevino, supra, 174 S.W.3d 928, 929)
It appears that the issues involved in Trevino, supra, and the
instant case are very similar. The only difference being that Trevino
dealt with a different offense. However, in Contreras v. State, 369
S.W.3d 689 (Tex.App.-Tyler 2012), the court found that a nine year
sentence for driving while intoxicated was more serious than the
sentence in Rummel v. Estelle, 445 U.S. 263, but did not constitute
cruel and unusual punishment.
Since Trevino involved a different type of offense, the State
points out that Harris v. State, 204 S.W.3d 19 (Tex.App.-Houston
[14h Dist.] 2006, pet. ref’d) addressed the issue of proportionality
6
and found that a sentence of 25 years for a conviction of an
enhanced driving while intoxicated offense was not cruel and unusual
punishment. In that cause, the appellant had five prior DWI
convictions, two of which were felonies. In addition for two other
offenses, the Harris court pointed out that under a recidivist statute,
a sentence is based not merely on that defendant’s most recent
offense but also on the propensities he demonstrated over a period
of time during which he had been convicted and sentenced for other
crimes. That court noted that if the trial court assesses punishment
within the statutorily prescribed limits on an individual who has
demonstrated a prolonged and pronounced inability to bring his
conduct into conformity with the criminal laws of the State of Texas,
the punishment is not cruel and unusual.
The Harris court holding and comments are applicable to the
facts of the instant case.
CONCLUSION
Since the issue raised by appellant in this cause has been
waived by a failure to preserve the issue for review, and for the
further reason that even if properly presented for review appellant’s
7
punishment is not cruel and unusual in this cause, the judgment of
the trial court should be in all things affirmed.
Respectfully submitted,
Robert E. Bell
District Attorney
State Bar Card No. 02086200
Jackson County Courthouse
115 W. Main Street
Edna, Texas 77957
/s/ Jim Vollers_______________
Jim Vollers
State Bar Card No. 20609000
2201 Westover Road
Austin, Texas 78703
ATTORNEYS FOR THE STATE
CERTIFICATE OF SERVICE
I hereby certify that on this the 3rd day of August, 2015, a true
and correct copy of the foregoing was served electronically through
the electronic filing manager on the party listed below:
W.A. Bill White, Attorney at Law, P. O. Box 7422, Victoria,
Texas 77903, Attorney for Appellant at lawbill0994@att.net.
Robert E. Bell, District Attorney, Jackson County Courthouse,
115 West Main Street, Edna, Texas 77957, Attorney for Appellee, at
ef_mitchell@yahoo.com.
Honorable Stephen Williams, District Judge, 24th Judicial District
Court, Jackson County Courthouse, 115 West Main Street, Edna,
Texas 77957, Trial Judge, at kwilliams@cscd.net.
8
If the email of the party or attorney to be served was not on
file with the electronic filing manager, the pleading was served by
email.
/s/ Jim Vollers
Jim Vollers
CERTIFICATE OF COMPLIANCE
I certify that this document contains 2,749 words (counting all
parts of the document).
/s/ Jim Vollers________________
Jim Vollers
2201 Westover Rd.
Austin, Texas 78703
(512) 478-6846
SBN 20609000
JimVollers@att.net
COUNSEL OF RECORD
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