ACCEPTED
06-15-00009-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
5/7/2015 4:42:05 PM
DEBBIE AUTREY
CLERK
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
5/8/2015 8:29:00 AM
No. 06-15-00009-CR DEBBIE AUTREY
Clerk
__________________________________________________________________________
IN THE SIXTH DISTRICT COURT OF APPEALS
AT TEXARKANA, TEXAS
__________________________________________________________________________
CHRISTIAN SIBLEY
Appellant,
v.
THE STATE OF TEXAS
Appealed from the County Court At Law One
Gregg County, Texas
__________________________________________________________________________
BRIEF OF THE APPELLANT
__________________________________________________________________________
Clement Dunn
State Bar No. 06249300
140 East Tyler, Suite 240
Longview, Texas 75601
Telephone: 903-753-7071
Fax: 903-753-8783
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES AND COUNSEL
Appellant certifies that the following is a complete list of all parties to the trial
court=s judgment and the names and addresses of their trial and appellate counsel.
1. Appellant: Christian Sibley
2. Appellant=s Trial Counsel: Clement Dunn
Attorney at Law
140 E. Tyler Street, Suite 240
Longview, TX 75601
TSB No. 06249300
3. Appellant=s Counsel on Appeal: Clement Dunn
Attorney at Law
140 E. Tyler Street, Suite 240
Longview, TX 75601
TSB No. 06249300
4. Attorney for the State: Reid McCain
Assistant District Attorney, Gregg County
101 East Methvin St., Suite 333
Longview, Texas 75601
TSB No. 24076541
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................................................... i
TABLE OF CONTENTS ................................................................................................................ ii
INDEX OF AUTHORITIES ........................................................................................................... iii
STATEMENT OF THE CASE......................................................................................................1
STATEMENT REGARDING ORAL ARGUMENT....................................................................1
ISSUE PRESENTED .......................................................................................................................1
STATEMENT OF THE FACTS .........................................................................................................1
SUMMARY OF THE ARGUMENT ...................................................................................................2
ARGUMENT ...............................................................................................................................2
PRAYER ....................................................................................................................................................................... 5
CERTIFICATE OF SERVICE ...................................................................................................................................... 6
CERTIFICATE OF WORD COUNT ........................................................................................................................... 6
ii
INDEX OF AUTHORITIES
Cases
Nance v. State, 946 S.W. 2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d) ..................4
Olson v. State, No. 02-14-00143-CR (Tex. App.—Fort Worth, dec’d April 23, 2015)
(unpublished) ............................................................................................................................4
Williams v. State, 958 S.W. 2d 844,845 (Tex. App.—Houston (14th Dist.) 1997, pet. ref’d). .4
Mitchell v. State, 931 S.W. 2d 950 (Tex. Crim. App. 1996) ...................................................4
Johnson v. State, Nos. 14-14-00209-CR, 14-14-00210-CR (Tex. App. –Houston (14th Dist.)
dec’d March 10, 2015)(unpublished) ......................................................................................4
Segundo v. State, 270 S.W. 3d 79, 87 (Tex. Crim. App. 2008) ...............................................5
Aldor v. State, 871 S.W. 2d 726, 738 (Tex. Crim. App. 1994) ................................................5
Wilkerson v. State, 736 S.W. 2d 656, 659 (Tex. Crim. App. 1987) .........................................5
Constitutional Provisions
Article 37.07, Tex. Crim. Proc. sec. 3(a)(1) .............................................................................3
Article 37.07, Tex. Crim. Proc., section 3(g) ...........................................................................4
iii
STATEMENT OF THE CASE
Offense: Escape From Custody
Verdict: Guilty; three hundred thirty (330) days confinement – County Jail.
Date of Verdict: October 20, 2014
Trial Court: County Court At Law One, Gregg County, Texas.
This case involves a prosecution for the offense of Class A misdemeanor Escape.
C.R., at 4. The Appellant entered a plea of guilty to the Court. R.R. at 5. This occurred
without an agreement between the State and the Appellant regarding punishment; this
entailed an “open” plea. Id. At the end of the hearing, the Court imposed a sentence of three-
hundred-thirty days in the county jail, a four-hundred dollar fine and costs of court. Id., at
14.
STATEMENT REGARDING ORAL ARGUMENT
Believing the instant case contains issues capable of resolution on the basis of the
record and the brief Appellant respectfully does not request oral argument.
ISSUE PRESENTED
The Appellant respectfully submits that the Trial Court based its sentence on matters
not properly in evidence before the Court and therefore not appropriate as factors in the
assessment of sentences.
STATEMENT OF THE FACTS
At the conclusion of the hearing in the instant case, the Trial Court stated:
THE COURT: The Court can consider the fact
BRIEF OF APPELLANT, CHRISTIAN
PAGE 1
that he's had a prior probation that was revoked, and he
received a 330-day sentence, I do believe. He has other
misdemeanor convictions.
I'm just going to consider the offense report, the
pre-sentence report -- which has a history of misdemeanor
convictions -- and the Court's own knowledge of Mr. Sibley through the
years.
Mr. Sibley, you just like being a criminal. You
just do. And you want to be a criminal, so I'm going to treat
you like a criminal. You don't want to be rehabbed. You want
to be a gang member. You want to be tough.
So I've got a little misdemeanor case -- the maximum
is a year -- so there's not a lot I can do to you. But I am
going to sentence you to 330 days in the county jail and a
$400 fine, plus cost of court. This has not been a plea
agreement, so you have the right to appeal it if you want.
It's the same sentence you got for your last revocation. I
don't know if you're going to ever change your ways or not,
but I've got your number.
R.R., at 13-14.
SUMMARY OF THE ARGUMENT
The Trial Court erred in basing its sentence on matters not in evidence and on
assertions that do not properly inform the sentencing decision.
ARGUMENT
As noted above, the Trial Court stated:
I’m just going to consider the offense report, the pre-sentence reports—
which has a history of misdemeanor convictions—and the Court’s own
knowledge of Mr. Sibley through the years.
R.R., at 13-14. When the Court says it is “going to consider,” inter alia, “the Court’s own
knowledge of Mr. Sibley through the years,” the record contains no explanation of what this
might encompass. The context of this statement strongly indicates that this amounts to
something beyond matters in evidence before the Court—i.e., the afore-mentioned offense
BRIEF OF APPELLANT, CHRISTIAN
PAGE 2
report, pre-sentence report, and criminal history. The Court states this “knowledge” of Mr.
Sibley “through the years” as a separate, and distinct, basis for the sentence.
The Court did not articulate what this “knowledge” comprises; “the Court’s own
knowledge of Mr. Sibley through the years” places this consideration within, as stated, “the
Court’s own knowledge,” not facts in evidence before the Court at the hearings. The record
does not reflect that the Court took “judicial notice” of any particular matter at all. To the
extent that an inference might arise that the Court judicially noticed its own knowledge, the
record fails to reflect the contents of this knowledge being “judicially noticed.”
The Court went further:
Mr. Sibley, you just like being a criminal. You
just do. And you want to be a criminal, so I'm going to treat
you like a criminal. You don't want to be rehabbed. You want
to be a gang member. You want to be tough.
R.R. 14. The Appellant respectfully submits that no record evidence demonstrates that the
Appellant “likes” being a criminal, or “wanting” to be one. Similarly, nothing shows the
Appellant resistant to efforts at rehabilitation.
Article 37.07, Tex. Crim. Proc., controls the admissibility of evidence at the
punishment phase of a trial:
Sec. 3. Evidence of prior criminal record in all criminal cases after a
finding of guilty.
(a)(1) Regardless of the plea and whether the punishment be assessed by the
judge or the jury, evidence may be offered by the state and the defendant as to any
matter the court deems relevant to sentencing, including but not limited to the prior
criminal record of the defendant, his general reputation, his character, an opinion
regarding his character, the circumstances of the offense for which he is being tried,
and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt
by evidence to have been committed by the defendant or for which he could be held
criminally responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act.
BRIEF OF APPELLANT, CHRISTIAN
PAGE 3
Id., sec. 3(a)(1). Further, Article 37.07, section 3(g) incorporates the notice requirement of
Rule 404(b), Tex. R. Evid., and provides that the State must give a defendant reasonable
notice of its intent to introduce extraneous-offense evidence at punishment. The statute
further provides that notice is reasonable “only if the notice includes the date on which and
the county in which the alleged crime or bad act occurred and the name of the alleged victim
of the crime or bad act.” Article 37.07, Tex. Crim. Proc., section 3(g). The purpose of the
notice requirement is to prevent unfair surprise to the defendant. See: Nance v. State, 946
S.W. 2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d); Olson v. State, No. 02-14-
00143-CR (Tex. App.—Fort Worth, dec’d April 23, 2015) (unpublished). When the trial
court (instead of a jury) assesses punishment, it may determine that an extraneous offense is
relevant to punishment and admit such evidence, but the court may then only consider the
extraneous offense in assessing punishment if it finds the offense was proven beyond a
reasonable doubt. Williams v. State, 958 S.W. 2d 844,845 (Tex. App.—Houston (14th Dist.)
1997, pet. ref’d); Mitchell v. State, 931 S.W. 2d 950 (Tex. Crim. App. 1996); Johnson v.
State, Nos. 14-14-00209-CR, 14-14-00210-CR (Tex. App. –Houston (14th Dist.) dec’d
March 10, 2015)(unpublished).
In the instant case, the Court relied on its own knowledge, which amounts to facts
not in evidence—and certainly not proven in the courtroom and on the record, and thus
subject to potential appellate review. This “evidence,” existing outside of the record, could
not be subject to the standard, statutorily required, of being proven beyond a reasonable
doubt. The Appellant had no notice of what this “knowledge” of the Court entailed; even as
the Court stated this as a basis for its sentencing decision, the “knowledge” remained
obscure.
BRIEF OF APPELLANT, CHRISTIAN
PAGE 4
This “knowledge,” however, translated into the Court’s stating that the Appellant
“liked” being a criminal and a member of a gang, and was averse to any effort to change
from these predilections. This becomes tantamount to punishing the Appellant not for the
offense for which he was convicted, or even for specific extraneous acts, but for being a
criminal generally. This has long been deemed improper by the appellate judiciary in Texas.
See, e.g., Segundo v. State, 270 S.W. 3d 79, 87 (Tex. Crim. App. 2008); Aldor v. State, 871
S.W. 2d 726, 738 (Tex. Crim. App. 1994); and Wilkerson v. State, 736 S.W. 2d 656, 659
(Tex. Crim. App. 1987).
PRAYER
The Appellant respectfully requests this case be reversed and remanded for a new
hearing on punishment.
Respectfully submitted,
__/s/ Clement Dunn_______________
140 East Tyler Street, Suite 240
Longview, Texas 75601
(903) 753-7071 Fax: 903-753-8783
State Bar No. 06249300
BRIEF OF APPELLANT, CHRISTIAN
PAGE 5
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this brief was delivered to the Gregg
County District Attorney=s Office, Longview, Texas on this 7th day of May 2015.
__/s/ Clement Dunn_______________
CERTIFICATE OF WORD COUNT
I hereby certify that a total of 1746 words are included in this brief.
__/s/ Clement Dunn_______________
BRIEF OF APPELLANT, CHRISTIAN
PAGE 6
Christian Sibley v. State
Combined Opinion