ACCEPTED
05-15-00535-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
10/8/2015 2:22:00 PM
LISA MATZ
CLERK
Fifth Court of Appeals
____________________________________
FILED IN
5th COURT OF APPEALS
NO. 05-15-00535-CR DALLAS, TEXAS
____________________________________10/8/2015 2:22:00 PM
LISA MATZ
Clerk
GILBERTO GONZALEZ AGUILAR, Appellant,
v.
THE STATE OF TEXAS, Appellee
____________________________________
APPELLANT’S BRIEF
____________________________________
Appealed from the 15th District Court
Grayson County, Texas
Trial Cause Number 065226
Hon. James P. Fallon Presiding
Submitted by:
Gaylon P. Riddels
108 East Houston Street, Suite 200
Sherman, Texas 75090
Telephone: (903) 893-2878
Facsimile: 972-767-1521
SBN: 24065975
Attorney for Appellant
ORAL ARGUMENT NOT REQUESTED
Identities of Parties and Counsel
Gilberto Gonzalez Aguilar, Appellant
Gaylon P. Riddels, Attorney for Appellant on Appeal, 108 East Houston Street,
Suite 200, Sherman, Texas 75090, phone (903) 893-2878, fax (972) 767-1521, email
gaylon@riddelslaw.com.
Gaylon P. Riddels, Attorney for Appellant at Trial, 108 East Houston Street,
Suite 200, Sherman, Texas 75090, phone (903) 893-2878, fax (972) 767-1521, email
gaylon@riddelslaw.com.
State of Texas, Appellee
Joe Brown, Grayson County District Attorney, Attorney for the State of Texas,
200 South Crockett Street, Sherman, Texas 75090, phone (903) 813-4361, fax (903)
892-9933
Karla Baugh Hackett, Grayson County Assistant District Attorney, Attorney
for the State of Texas on Appeal, 200 South Crockett Street, Sherman, Texas
75090, phone (903) 813-4361, fax (903) 892-9933
J. Brett Smith, Grayson County Assistant District Attorney, Attorney for
Appellee at Trial, 200 South Crockett Street, Sherman, Texas 75090, phone (903)
813-4361, fax (903) 892-9933
Laura Wheeler, Grayson County Assistant District Attorney, Attorney for
Appellee at Trial, 200 South Crockett Street, Sherman, Texas 75090, phone (903)
813-4361, fax (903) 892-9933
Hon. James P. Fallon, Presiding Judge of the 15th District Court, 200 South
Crockett Street, Sherman, Texas 75090, phone (903) 813-4200
2
Table of Contents
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of the Case and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Issue One: The trial court erred and abused its discretion in
denying Appellant’s Motion to Suppress. That is, Mark Haning
did not have reasonable suspicion, probable cause, or exigent
circumstances to stop the vehicle driven by Appellant . . . . . . . . . . . . . . . . . . . .12
Issue Two: The trial court erred by denying Appellant’s request
for a new trial because his sentence is disproportionate and
constitutes cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . 14
Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certificate of Compliance with Rule 9.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3
Index of Authorities
Cases Page
Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985) . . . . . . . . . . . . . 12
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) . . . . . . . . . . . . . 12
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)(en banc) . . 14
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . 15
Lathan v. State, 20 S.W.3d 63, 68-69 (Tex. App.—Texarkana 2000, pet. ref’d) . . 15
Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L.Ed.2d 637 (1983) . . . . . 15
Jones v. State, 466 S.W.3d 252, 256, 259 (Tex. App. —Houston [1st Dist.] 2015,
pet. filed). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Lopez v. State, 777 S.W.2d 540, 541 (Tex. App. —Corpus Christi 1989, pet. ref’d) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Constitutions
U.S. Const. Amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 14, 15, 17
Statutes and Rules
Tex. R. App. P. 26.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12
Tex. R. App. P. 25.2(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Tex. R. App. P. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tex. R. App. P. 39.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tex. Trans. Code § 504.945(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13
4
To the Honorable Justices of the Court of Appeals:
Gilberto Gonzalez Aguilar, Appellant, submits this Brief in support of his
appeal of his judgment of conviction and sentence:
Statement of the Case and Jurisdiction
This case is an appeal of a judgment of conviction and sentence under Cause
Number 065226 from the 15th Judicial District Court of Grayson County, Texas.
(CR, 27).1 Appellant was indicted for Possession with Intent to Deliver a Controlled
Substance Listed in Penalty Group 1 in an Amount Equal to or Greater than 400
grams. (CR, 5). The State alleged that on or about November 19, 2014, in Grayson
County, Appellant intentionally and knowingly possessed with the intent to deliver
400 grams or more of methamphetamine. (CR, 5).
Prior to trial, Appellant filed a Motion to Suppress asserting that Mark Haning
illegally stopped Appellant’s vehicle. (CR, 11-12). The trial court heard testimony
and received evidence on Appellant’s Motion to Suppress prior to trial. (RR 2, 5-
21; CR, 11-12). The trial court denied Appellant’s Motion to Suppress. (RR 2, 21).
After the trial court’s denial of Appellant’s Motion to Suppress, Appellant pled
“guilty” to the indicted offense and elected that the jury assess his punishment. (RR
2, 25-35; CR, 14-15, 33-46). After a jury trial on punishment, on April 21, 2015,
1
The Clerk’s Record, which is comprised of a single volume, is referenced throughout this Brief
as “CR” followed by the page number of the Clerk’s Record. The Reporter’s Record, which is
comprised of four volumes, is referenced throughout the Brief as “RR” followed by the volume
number and page number.
5
Appellant was sentenced by a jury to Life in prison to the Texas Department of
Criminal Justice, Institutional Division, and was fined $250,000.00. (RR 3, 28-30;
CR, 26-30). On April 22, 2015, Appellant filed a timely notice of appeal, thus
perfecting this appeal. (CR, 64); See Tex. Rule App. Proc. 26.2(a). The trial court
signed the Trial Court’s Certification of Defendant’s Right of Appeal stating that the
case is “a plea bargain case but matters were raised by written motion filed and ruled
on before trial and not withdrawn or waived, and the [Appellant] has the right of
appeal.” (CR, 52); See Tex. Rule App. Proc. 25.2(a)(2). As a result, this Court has
jurisdiction over this appeal.
6
Statement Regarding Oral Argument
Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.2, Appellant does
not request oral argument before this Court of Appeals. See Tex. Rule App. Proc.
39.1 & 39.2. Although this is a meritorious appeal of a criminal case, Appellant
believes that the facts and legal arguments are adequately presented in this Brief and
in the record on appeal. Appellant also believes that the decisional process of the
Court of Appeals will not be significantly aided by oral argument. As a result,
Appellant does not request oral argument and asks that the issues presented in this
Brief be considered by this Court of Appeals by submission only.
7
Issues Presented
Issue One: The trial court erred and abused its discretion in denying
Appellant’s Motion to Suppress. That is, Mark Haning did not have reasonable
suspicion, probable cause, or exigent circumstances to stop the vehicle driven
by Appellant.
Issue Two: The trial court erred by denying Appellant’s request for a new trial
because his sentence is disproportionate and constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States
Constitution.
8
Facts
Pretrial hearing on Appellant’s Motion to Suppress
Prior to voir dire commencing, the trial court heard Appellant’s Motion to
Suppress (RR2, 5-21). Appellant claimed that Mark Haning illegally stopped the
vehicle driven by Appellant, i.e., Mark Haning’s stop was made without reasonable
suspicion, probable cause, or exigent circumstances. (CR, 11-12). Mr. Haning
claimed that he witnessed a blue Nissan passenger car traveling northbound on
highway 75 in Sherman, Texas and that the vehicle’s rear license plate was not
properly secured. (RR 2, 8). Mark Haning claimed that his stop was justified
because the vehicle’s rear license plate was “flapping up” and violated section
504.945(a)(7) of the Texas Transportation Code. (RR 2, 13, 18). Appellant argued
that the rear license plate of the vehicle was properly secured and that Appellant did
not violate section 504.945(a)(7) of the Texas Transportation Code. (RR 2, 17-20).
After both sides rested, the trial court denied Appellant’s Motion to Suppress. (RR
2, 21).
After the trial court’s denial of Appellant’s Motion to Suppress, Appellant
pled guilty to the indicted offense and proceeded to a jury trial for punishment
purposes only. (RR 2, 25-35; CR, 14-15, 33-46). After the State and Appellant
rested and closed, the jury assessed Appellant’s punishment at Life in prison to the
9
Texas Department of Criminal Justice, Institutional Division, and a fine of
$250,000.00. (RR 3, 28-30; CR, 26-30).
10
Summary of the Arguments
Appellant presents the following arguments in this Brief: First, Appellant will
show that the trial court erred and abused its discretion by denying Appellant’s
Motion to Suppress because Mark Haning did not have reasonable suspicion,
probable cause, or exigent circumstances to stop the vehicle driven by Appellant.
Second, the trial court erred by denying Appellant’s request for a new trial because
Appellant’s sentence is disproportionate and constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States Constitution.
As to Issue One, Appellant will ask this Court to reverse the judgment of
conviction and sentence for Possession with Intent to Deliver a Controlled Substance
Listed in Penalty Group 1 in an Amount Equal to or Greater than 400 grams and
remand this case back to the trial court for a new trial, and specifically order that
Appellant’s Motion to Suppress is granted. As to Issue Two, Appellant will ask this
Court to reverse the judgment upholding a Life sentence and a $250,000.00 fine and
remand this case back to the trial court for a new trial.
11
Arguments
Issue One: The trial court erred and abused its discretion in denying
Appellant’s Motion to Suppress. That is, Mark Haning did not have reasonable
suspicion, probable cause, or exigent circumstances to stop the vehicle driven
by Appellant.
Introduction
In this Issue, Appellant will begin by discussing the standard of review for
this Court and then discuss how the trial court erred and abused its discretion in
denying Appellant’s Motion to Suppress.
Standard of review is the abuse of discretion standard
A reviewing court should review a trial court’s denial of a motion to suppress
for an abuse of discretion. See Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim.
App. 1985). A reviewing court does not engage in its own factual review; it
determines only whether the record supports the trial court’s ruling and whether the
trial court properly applied the law to the facts. See Romero v. State, 800 S.W.2d
539, 543 (Tex. Crim. App. 1990).
This issue is preserved for appellate review
Appellant’s Notice of Appeal was timely filed; therefore, this Court has
jurisdiction to review the pretrial order. See Tex. Rule App. Proc. 26.2(a).
The trial court erred and abused its discretion in denying Appellant’s
Motion to Suppress. That is, Mark Haning did not have reasonable
suspicion, probable cause, or exigent circumstances to stop the vehicle
driven by Appellant
12
Here, Mark Haning testified that he stopped Appellant’s vehicle because
Appellant violated section 504.945(a)(7) of the Texas Transportation Code. (RR 2,
18-20). Section 504.945(a)(7) provides the following:
“A person commits an offense if the person attaches to or displays on a
motor vehicle a license plate that:…(7) has a coating, covering,
protective substance, or other material that: (A) distorts angular
visibility or detectability; (B) alters or obscures one-half or more of the
name of the state in which the vehicle is registered; or (C) alters or
obscures the letters or numbers of the license plate number or the color
of the plate.”
Tex. Trans. Code § 504.945(a)(7). The license plate on the vehicle driven by
Appellant was a buyer’s tag that was attached to the rear of the vehicle in a visible
location. (RR 2, 17). Additionally, the license plate is attached in two separate
locations at the top of the license plate. Id. However, due to wind and the fact that
the license plate was not attached to the vehicle on the bottom portion of the license
plate, the license plate was raised and/or flapping in the wind. (RR 2, 17). Here,
there is no evidence that a coating, covering, protective substance, or other material
actually distorted the angular visibility or detectability of the license plate. Per Mark
Haning, the wind raised the license plate so that a portion of it was not legible. (RR
2, 17-20). Mark Haning unreasonably relies upon Appellant’s alleged violation of
section 504.945(a)(7) of the Texas Transportation Code in effectuating his pretextual
traffic stop of Appellant. Moreover, Mark Haning did not have probable cause or
13
exigent circumstances to stop the vehicle driven by Appellant. Therefore, the trial
court abuse its discretion in denying Appellant’s Motion to Suppress.
Conclusion
The trial court erred and abused its discretion by denying Appellant’s Motion
to Suppress. Appellant thus asks this Court of Appeals to reverse the judgment of
conviction and sentence and remand this case back to the trial court for a new trial,
and order that Appellant’s Motion to Suppress be granted.
Issue Two: The trial court erred by denying Appellant’s request for a new trial
because his sentence is disproportionate and constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States
Constitution.
Standard of review is the abuse of discretion standard
A reviewing court should apply the de novo standard of review to the question
concerning cruel and unusual punishment, i.e., if the trial court’s sentence was
proper under that standard, then the trial court did not abuse its discretion in
assessing the sentence. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990)(en banc).
This issue is preserved for appellate review
Appellant’s Notice of Appeal was timely filed, and Appellant raised his cruel
and unusual punishment claim by filing his Motion for New Trial on April 22, 2015.
(CR 56-58). Moreover, Appellant’s counsel argued at the hearing on Appellant’s
Motion for New Trial that Appellant’s sentence was excessive.
14
The trial court erred by denying Appellant’s request for a new trial because
his sentence is disproportionate and constitutes cruel and unusual punishment
in violation of the Eighth Amendment to the United States Constitution
Here, Appellant’s life sentence and fine of $250,000.00 constitutes cruel and
unusual punishment. Texas courts have traditionally held that as long as the
punishment is within the range prescribed by the Legislature in a valid statute, the
punishment is not excessive. See e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex.
Crim. App. 1973). Appellant’s sentence is within a prescribed range for a first
degree felony of such nature; therefore, Appellant’s sentence does not violate the
Texas constitution. However, Appellant has a federal claim for prohibition against
grossly disproportionate punishment survives under the Eighth Amendment apart
from any consideration of whether the punishment assessed is within the range
established by the Legislature. See Lathan v. State, 20 S.W.3d 63, 68-69 (Tex.
App.—Texarkana 2000, pet. ref’d); Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d).
Under a proportionality analysis under the Eighth Amendment, the Court
considers the following factors: (1) the gravity of the offense and the harshness of
the penalty; (2) the sentences imposed on other offenders in the same jurisdiction;
and (3) the sentences imposed for commission of the same offense in other
jurisdictions. Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L.Ed.2d 637
(1983).
15
Here, a life sentence for possession of 2,969.46 grams of methamphetamine
is too harsh for the gravity of the offense. That is, Appellant possessed a certain
illegal drug with the intent to deliver the same. Appellant was never before
convicted of a felony in the State of Texas or in any other state in the United States;
however, Appellant received a life sentence in a case wherein some persons receive
15 years in prison. For example in Jones v. State, the Defendant was convicted of
possession with the intent to deliver or manufacture phencyclidine (PCP) in an
amount greater than 400 grams and sentenced to 65 years in prison. Jones v State,
466 S.W.3d 252, 256, 259 (Tex. App.—Houston [1st Dist.] 2015, pet. filed).
However, in Jones v. State, the defendant had multiple prior felony convictions
including a conviction for possession of a controlled substance with intent to deliver.
Id. at 256. In Lopez v. State, the defendant was convicted of delivery by actual
transfer of cocaine in an amount greater than 400 grams, and the defendant was
sentenced to 15 years in prison. Lopez v. State, 777 S.W.2d 540, 541 (Tex. App.—
Corpus Christi 1989, pet. ref’d). Despite being convicted of a similar charge, the
defendant in Lopez received a sentence of 15 years. Therefore, Appellant’s sentence
of Life in prison is wholly inconsistent with (1) the sentences imposed on other
offenders in the same jurisdiction and (2) the sentences imposed for the commission
of the same offense in other jurisdictions.
16
Therefore, Appellant’s life sentence and fine of $250,000.00 constitutes cruel
and unusual punishment.
Conclusion
The trial court erred by denying Appellant’s request for a new trial because
his sentence is disproportionate and constitutes cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution.
Conclusion and Prayer
For the above reasons, Appellant respectfully prays that upon appellate
review, this Court of Appeals reverse the judgment of conviction and sentence and
remand this case back to the trial court for a new trial.
Respectfully submitted,
Gaylon P. Riddels Law Firm, P.C.
108 East Houston, Suite 200
Sherman, Texas 75090
Phone: 903-893-2878
Fax: 972-767-1521
admin@riddelslaw.com
/s/ Gaylon P. Riddels
______________________________
By: Gaylon P. Riddels
Attorney for Appellant
State Bar No. 24065975
17
Certificate of Service
This is to certify that on October 8, 2015, a true and correct copy of the above
and foregoing document was served on Karla Baugh Hackett of the Grayson County
District Attorney, Appellate Division, 200 South Crockett Street, Sherman, Texas
75090, phone by facsimile to (903) 892-9933.
/s/ Gaylon P. Riddels
______________________________
Gaylon P. Riddels
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 15,000.00 words. Using the word-count feature of
Microsoft Word, the undersigned certifies that this document contains 1788 words
in the entire document except in the following sections: caption, identity of parties
and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix. This document also complies
with the typeface requirements because it has been prepared in a proportionally-
spaced typeface using Microsoft Word in 14-point Times New Roman.
/s/ Gaylon P. Riddels
______________________________
Gaylon P. Riddels
18