ACCEPTED
04-15-00456-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/14/2015 2:34:44 PM
KEITH HOTTLE
CLERK
NO.
04-‐15-‐00456-‐CR
IN
THE
COURT
OF
APPEALS
FILED IN
4th COURT OF APPEALS
FOURTH
COURT
OF
APPEALS
DISTRICT
SAN ANTONIO, TEXAS
SAN
ANTONIO,
TEXAS
10/14/15 2:34:44 PM
KEITH E. HOTTLE
Clerk
JAMES
GARZA.
Appellant
V.
THE
STATE
OF
TEXAS,
Appellee
ON
APPEAL
FROM
THE
290th
DISTRICT
COURT
OF
BEXAR
COUNTY
TEXAS
CAUSE
NUMBER
2009-‐CR-‐12648A
BRIEF
FOR
THE
APPELLANT
EDWARD
F.
SHAUGHNESSY
206
E.
Locust
Street
San
Antonio,
Texas
78212
(210)
212-‐6700
(210)
212-‐2178
(FAX)
Shaughnessy727@gmail.com
SBN
18134500
ORAL
ARGUMENT
REQUESTED
ATTORNEY
FOR
APPELLANT
TABLE
OF
CONTENTS
Table of Contents ..................................................................................................... ii
Table of Interested Parties ...................................................................................... iii
Table of Authorities..................................................................................................iv
Brief for the Appellant .............................................................................................. v
Summary of the Argument ...................................................................................... 6
Argument and Authorities ....................................................................................... 9
Conclusion and Prayer ............................................................................................10
Certificate of Service ............................................................................................... 12
Certificate of Compliance…………………………………………………………………………....12
ii
PARTIES
AND
COUNSEL
TRIAL
COUNSEL
FOR
THE
STATE:
WENDY
WILSON
Assistant
Criminal
District
Attorney
Bexar
County,
Texas
401
W.
Nueva
San
Antonio,
Texas
78205
TRIAL
COUNSEL
FOR
APPELLANT:
EDWARD
F.
SHAUGHNESSY,
III
206
E.
Locust
San
Antonio,
Texas
78212
APPELLANT’S
ATTORNEY
ON
APPEAL:
EDWARD
F.
SHAUGHNESSY,
III
206
E.
Locust
Street
San
Antonio,
Texas
(210)212-‐6700
(210)
212-‐2178
Fax
SBN
18134500
TRIAL
JUDGE:
MELISA
SKINNER
290th
Judicial
District
Bexar
County,
Texas
iii
TABLE
OF
AUTHORITIES
Cases
Bear
Cloud
v.
State,
334
P.3d
132
(Wyoming
2014)………………………………..……..10
Eddings
v.
Oklahoma,
102
S.
Ct.
869
(1987)………………………………………....………10
Miller
v.
Alabama,
_____
U.S._____,
132
S.
Ct.
2455
(2012)…………..………....7,
8,
9,
10
State
v.
Dull,
351
P.2d
641
(Kansas
2015)…………………………………………………….10
State
v.
Lyle,
854
N.W.2d
378
(Iowa
2014)………………………………………………...…10
iv
NO.
04-‐15-‐00456-‐CR
JAMES
GARZA,
§
COURT
OF
APPEALS,
FOURTH
Appellant
§
V.
§
COURT
OF
APPEALS
DISTRICT
THE
STATE
OF
TEXAS,
§
Appellee
§
SAN
ANTONIO,
TEXAS
BRIEF
FOR
THE
APPELLANT
TO
THE
HONORABLE
COURT
OF
APPEALS:
Now
comes
the
appellant,
James
Garza
and
files
this
brief
in
Cause
No.
04-‐14-‐00456-‐CR.
The
appellant
appeals
from
a
judgment
of
the
290th
District
Court
of
Bexar
County,
Texas.
The
appellant
was
indicted
by
a
Bexar
County
grand
jury
for
the
offense
of
Capital
Murder
on
December
16,
2009.
He
was
subsequently
convicted
by
a
jury
and
sentenced
to
Life,
without
the
possibility
of
parole,
in
the
Texas
Department
of
Criminal
Justice-‐
Institutional
Division.
That
conviction
was
and
sentence
was
appealed
to
this
Court.
On
October
12,
2012,
this
Court
affirmed
the
judgment
of
the
trial
Court
in
all
respects.
See:
Garza
v.
State,
(04-‐22-‐00891-‐CR,
Tex.
App.-‐San
5
Antonio,
October
24,
2012)
(2012
WL
5236048).
The
appellant
subsequently
sought
and
obtained
a
Petition
for
Discretionary
Review
to
the
Court
of
Criminal
Appeals.
On
June
11,
2014,
that
Court
reversed
the
judgment
of
this
Court
and
remanded
the
cause,
to
this
Court,
for
further
proceedings.
Garza
v.
State,
435
S.W.
3d
258
(Tex.
Crim.
App.
2014).
This
Court
subsequently
reversed
and
remanded
the
cause
to
the
trial
Court
for
purposes
of
resentencing.
Garza
v.
State,
453
S.W.3d
548
(Tex.
App.-‐San
Antonio,
2014)
The
appellant
thereafter
appeared
in
the
290th
District
Court
for
purposes
of
resentencing.
(C.R.-‐179,
180,
181)
Following
a
sentencing
hearing
conducted,
before
the
trial
Court,
the
appellant
was
sentenced
to
Life
in
the
Texas
Department
of
Criminal
Justice-‐Institutional
Division.
(S.C.R.-‐3,
4)
The
appellant
thereafter
filed
a
written
notice
of
appeal
and
this
appeal
was
pursued.
(C.R.-‐173)
6
SUMMARY
OF
ARGUMENT
The
trial
Court
erred
in
refusing
to
provide
the
appellant
a
sentencing
hearing
that
complied
with
the
dictates
of
the
United
States
Supreme
Court
set
forth
in
Miller
v.
Alabama,
_____
U.S._____,
132
S.Ct.
2455
(2012).
STATEMENT
OF
APPLICABLE
FACTS
Prior
to
the
sentencing
hearing,
ordered
by
this
Court
in
its
opinion
of
December
23,
2014,
the
appellant
caused
to
be
filed
a
written
Motion
fro
Appointment
of
an
Independent
Expert
Witness.
(C.R.-‐167)
That
motion
sought
two
species
of
relief
from
the
trial
Court
prior
to
the
“resentencing”
hearing
ordered
by
this
Court.
It
sought
to
have
the
trial
Court
to
appoint
an
expert
witness
in
the
issue
of
“mitigation”.
In
addition
the
motion
requested
that
the
“resentencing”
be
conducted
before
a
jury
and
that,
the
potential
range
be
that
of
a
traditional
first
degree
felony
(Five
years
to
Life)1.
(C.R.167
thru
170)
On
the
date
the
1
Prior to the onset of the trial the appellant had caused to be file a written Election of
Punishment wherein he notified that he desired that a jury assess his punishment in the
7
case
was
called
for
the
“resentencing”,
that
motion
was
presented
to
the
trial
Court.
After
hearing
arguments
from
counsel,
the
trial
Court
denied
the
relief
requested
in
the
motion.
(R.R.-‐9)
The
trial
Court
then
proceeded
with
an
evidentiary
hearing
limited
to
the
single
issue
of
whether
or
not
the
appellant
was
seventeen
years
of
age
at
the
time
of
the
commission
of
the
offense.
The
appellant
presented
evidence
that
established
that
he
was
seventeen
years
of
age
at
the
time
of
the
commission
of
the
offense.
The
State
of
Texas
presented
no
evidence
to
contradict
the
appellant’s
evidence
on
that
particular
issue.
The
trial
Court
then
made
a
factual
finding
that
the
appellant
was
seventeen
years
of
age
at
the
time
of
the
commission
of
the
offense.
(R.R.-‐13)
Thereafter
the
trial
Court
assessed
the
appellant’s
punishment
as
Life
in
the
Texas
Department
of
Criminal
Justice-‐
Institutional
Division
with
the
possibility
of
parole.
(R.R.-‐14)
An
amended
judgment
was
entered
to
reflect
the
action
of
the
trial
Court.
(S.C.R.-‐3,4)
8
APPELLANT’S
SOLE
POINT
OF
ERROR
THE
TRIAL
COURT
ERRED,
IN
VIOLATION
OF
THE
EIGHTH
AMENDMENT
TO
THE
UNITED
STATES
CONSTITUTION,
IN
REFUSING
THE
APPELLANT’S
REQUEST
FOR
A
PUNISHMENT
HEARING
CONSISTENT
WITH
THE
HOLDING
OF
THE
UNITED
STATE
SUPREME
COURT
IN
MILLER
V.
ALABAMA,
____U.S.____,
132
S.CT.
2455
(2012)
ARGUMENT
AND
AUTHORITIES
As
has
been
noted
by
both
this
Court
and
the
Court
of
Criminal
Appeals,
the
appellant
has
never
been
accorded
a
sentencing
hearing
of
any
sort
and
has
been
sentenced
initially
to
Life
without
the
possibility
of
parole,
and
thereafter
to
Life.
As
a
consequence,
the
seventeen
year
old
defendant2
has
never
been
accorded
a
sentencing
hearing
which
allowed
him
to
present
meaningful
mitigation
evidence,
the
Eighth
Amendment
to
the
United
States
Constitution3,
as
recently
construed
in
the
context
of
defendant’s
under
the
age
of
eighteen
at
the
time
of
the
offense,
mandates
that
offenders
seventeen
years
of
age
or
younger
be
2
At the time of the offense.
3
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
9
accorded
a
sentencing
hearing
that
allows
a
sentence
to
take
into
account
the
background
and
mental
and
emotional
development
of
a
youthful
defendant
be
duly
considered
in
assessing
his
culpability.
Miller
v.
Alabama,
supra,
pg.
2467.
(Citing:
Eddings
v.
Oklahoma,
102
S.Ct.
869
(1987)).
The
Court
explained
the
rationale
behind
its
holding
that
life
without
the
possibility
of
parole
for
youthful
offenders
was
inconsistent
with
the
Eighth
Amendment
in
the
following
terms:
Such
mandatory
penalties,
by
their
nature,
preclude
a
sentencer
from
taking
account
of
an
offender’s
age
and
the
wealth
of
characteristics
and
circumstances
attendant
to
it.
Miller
v.
Alabama,
supra
at
2468.
The
sentencing
protocol
employed
in
the
instant
case
is
fundamentally
indistinguishable
from
that
found
flawed
in
Miller.
Life
in
confinement
is
no
less
a
mandatory
sentence
than
Life
in
confinement
without
the
possibility
of
parole.
Consequently
a
mandatory
sentence
of
life
for
a
youthful
offender,
such
as
that
imposed
herein,
is
violative
of
the
Eighth
Amendment
because
it
is
a
sentence
that
wholly
fails
to
allow
for
the
admission
and
consideration
of
mitigating
factors
attributable
to
the
youth
of
the
offender.
See:
State
v.
Dull,
351
P.2d
641
(Kansas
2015);
State
v.
Lyle,
854
N.W.2d
378
(Iowa
2014);
Bear
Cloud
v.
State,
334
P.3d
132
(Wyoming
2014).
10
PRAYER
FOR
RELIEF
WHEREFORE,
PREMISES
CONSIDERED,
Appellant,
James
Garza,
prays
that
this
Court,
reverse
the
judgment
of
the
trial
Court
and
remand
the
cause
for
purposes
of
a
new
punishment
hearing
and
a
sentence
imposed
by
a
jury.
/s/Edward F. Shaughnessy,III
EDWARD
F.
SHAUGHNESSY,
III
206
E.
Locust
San
Antonio,
Texas
78212
(210)
212-‐6700
(210)
212-‐2178
(fax)
SBN
18134500
Shaughnessy727@gmail.com
Attorney
for
the
appellant
11
CERTIFICATE
OF
SERVICE
I,
Edward
F.
Shaughnessy,
III,
attorney
for
the
appellant
hereby
certify
that
a
true
and
correct
copy
of
the
instant
pleading
was
served
upon
Nico
LaHood,
Criminal
District
Attorney
for
Bexar
County,
401
W.
Nueva,
San
Antonio,
Texas
78205
by
use
of
the
U.S.
Mail
on
this
the__14__
October,
2015.
/s/ Edward F. Shaughnessy,III
Edward
F.
Shaughnessy,
III
Attorney
for
the
Appellant
CERTIFICATE
OF
COMPLIANCE
I,
Edward
F.
Shaughnessy,
III,
attorney
for
the
appellant,
hereby
certify
that
the
instant
document
contains
1365
words.
//Edward F. Shaughnessy,III
Edward
F.
Shaughnessy,
III
12