ACCEPTED
12-15-00161-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/30/2015 1:24:35 PM
Pam Estes
CLERK
FILED IN
12th COURT OF APPEALS
CASE NO. 12-15-00161-CR TYLER, TEXAS
10/30/2015 1:24:35 PM
IN THE TWELFTH COURT OF APPEALS PAM ESTES
TYLER, TEXAS Clerk
CHRISTI LYNN COKER, Appellant
Vs.
THE STATE OF TEXAS, Appellee
On Appeal from the
369TH Judicial District Court,
Anderson County, Texas
(Trial Court No. 31611)
Honorable BASCOM BENTLEY, III
BRIEF OF APPELLANT
MARK W. CARGILL
TBC# 00787201
701 N. Elm
Palestine, Texas 75801
903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
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PARTIES
CHRISTI LYNN COKER, APPELLANT
Mark W. Cargill
Attorney for Defendant/Appellant
701 N. Elm
Palestine, Texas 75801
Allison Mitchell
District Attorney
500 N. Church Street
Palestine, Texas 75801
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TABLE OF CONTENTS
Page
Table of Contents………………………………………………………………………………………….. 3
Index of Authorities……………………………………………………………………………………….. 4
Statement of the Case…………………………………………………………………………………... 5
Point of Error Number One……………………………………………………………………… 6
Statement of Facts……………………………………………………………………………………….. 6
Point of Error Number One Restated…………………………………………………………... 6
Summary of Argument (Point of Error Number One)………………………………... 6
Argument ……………………………………………….…………………………………………………….. 6, 7, 8, 9
Prayer…………………………………………………………………………………………………………… 9
Certificate of Service…………………………………………………………………………………... 10
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INDEX OF AUTHORITIES
CONSTITUTIONS
U.S. CONST. amend VIII…………………………………………………………………………….. 6
TEX. CONST. art. I sec. 13 ………………………………………………………………………. 6
STATUTES
Tex. Pen. Code Ann. Sec. 12.34………………………………………………………………. 8
CASES
Federal
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,
115 L. Ed. 2d 836 (1991) 7
McGruder v. Puckett, 954 F. 2d 313 (5th Cir.), cert. denied, 506 U.S. 849,
113 S. Ct. 146, 121 L. Ed. 2d 98 (1992) 7
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) 7
State
Davis v. State, 905 S.W. 2d 664 (Tex. App – Texarkana 1995, pet. ref’d) 7
Dunn vs. State, 997 S.W. 2d 885 (Tex. App. – Waco 1999, pet. ref’d) 7
Hernandez v. State, 10 S. W. 3d 812 (Tex. App. – Beaumont 2000, pet. ref’d) 7
Hicks v. State, 15 S.W. 3d 626 (Tex. App. – Houston [14th dist. ] 2000,
pet ref’d) 7
Jackson v. State, 989 S.W. 2d 842 (Tex. App. – Texarkana 1999, no pet.) 8
Lackey v. State, 881 S.W. 2d 418 (Tex. App. – Dallas 1994, pet ref’d) 7
Lilly v. State, 365 S.W.3d 321 (Ct of Crim Appeals, April 18, 2012) 8,9
Matthews v. State, 918 S.W. 2d 666 (Tex. App. – Beaumont 1996, pet ref’d) 7
Puga v. State, 916 S.W. 2d 547 (Tex. App. – San Antonio 1996, no pet.) 7
Simmons v. State, 994 S.W. 2d 11 (Tex. App. – Tyler 1996, pet. ref’d) 7
Sulivan v. State, 975 S.W.2d 755 (Tex. App. – Corpus Christi 1998, no pet.) 7
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CASE NO. 12-15-00161-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
CHRISTI LYNN COKER, Appellant
Vs.
THE STATE OF TEXAS, Appellee
On Appeal from the
369TH Judicial District Court,
Anderson County, Texas
(Trial Court No. 31611)
Honorable BASCOM BENTLEY, III
BRIEF OF APPELLANT
MARK W. CARGILL
TBC# 00787201
701 N. Elm
Palestine, Texas 75801
903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, CHRISTI LYNN COKER, the Appellant, and files this his Brief of
Appeal in the above-entitled and numbered cause.
STATEMENT OF THE CASE
On September 5, 2014, Defendant, CHRISTI LYNN COKER, was placed on
community supervision for Theft of Property < $1,500.00. The State of Texas filed a
motion to revoke on with 2 or more previous convictions. The Court had a hearing
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on the motion to revoke on June 3, 2015. Defendant’s probation was revoked and
she was sentenced to 24 months.
ISSUE PRESENTED
POINT OF ERROR NUMBER ONE
The trial court errored in rendering judgment its verdict and sentencing
Appellant to 24 months incarceration because that sentence was grossly
disproportionate when considered in light of other sentences for the same offense
and in light of the facts and circumstances which constituted the offense.
STATEMENT OF FACTS
The court considered all testimony of the revocation hearing of June 3, 2015.
POINT OF ERROR NUMBER ONE RESTATED
The sentence is excessive and is grossly disproportionate to the crime
committed.
SUMMARY OF ARGUMENT
Each defendant is guaranteed under the constitution of punishment free
from cruel and unusual treatment. To sentence a defendant to a sentence that is
disproportionately high violates the prohibition against cruel and unusual
punishment.
ARGUMENT
Both the United States Constitution and the Texas Constitution prohibit cruel
and unusual punishment. US Const. amend. VIII; Tex. Const. art I sec. 13. Since there
are not any distinctions between the state and federal protections against cruel or
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unusual punishment, an appeals court should address such claims together. See
Simmons v. State, 944 S.W. 2d 11, 14 (Tex. App. – Tyler 1996, pet. Ref’d) Davis v.
State, 905 S.W.2d 664, 665 (Tex. App. – Texarkana 1995, pet. ref’d).
It is possible for a sentence to fall within a permitted punishment range and
yet “run afoul of the Eighth Amendment prohibition on cruel and unusual
punishment. “Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d
637 (1983). The Supreme Court revised the question of disproportionate sentences
in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). In
discussing Harmelin, the Fifth Circuit has stated that “disproportionality survives:
Solem does not.” McGruder v. Puckett, 954 F 2d 313, 316 (5th Cir.), cert. denied 506
U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992). Under McGruder, a court must first
determine whether the sentence is “grossly disproportionate to the offense.”
McGruder, 954 F. 2d at 316. Once the court of Appeals finds the sentence grossly
disproportionate, the court then considers the remaining factors of the Solem test
and compares the sentence received to (1) sentences for similar crimes in the same
jurisdiction and (2) sentences for the same crime in other jurisdictions. Several
immediate Texas courts have analyzed proportionality claims in the manner
recommended by the Fifth Circuit in McGruder. See Hicks v. State, 15 S.W. 3d 626
(Tex. App. – Houston {14th Dist. } 2000, pet. ref’d); Hernandez v. State, 10 S.W. 3d
812 (Tex. App. – Beaumont 2000, pet. ref’d); Dunn v. State, 997 S.W. 2d 885 (Tex.
App. – Waco 1999, pet. ref’d) Sullivan v. State, 975 S.W. 2d 755, 757 (Tex. App. –
Corpus Christi 1998, no pet.); Puga v. State, 916 S.W. 2d 547, 549-50 (Tex. App. -
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San Antonio 1996, no pet.); Matthews v. State, 918 S.W.2d 666, 668-69 (Tex. App. –
Beaumont 1996, pet. ref’d) an Lackey v. State, 881 S.W. 2d 418, 420-421 (Tex. App. –
Dallas 1994, pet ref’d). The Eighth Amendment proscribes grossly disproportionate
sentences, even sentences that fall within the statutory range of punishment.
Jackson v. State, 989 S. W. 2d 842, 845-46 (Tex. App. – Texarkana 1999, no pet).
Appellant was on community supervision for the felony offense of State Jail
Theft.
Appellant’s community supervision was revoked but her punishment was
grossly disproportionate to the crime. An individual adjudged guilty of a felony of
this degree shall be punished by imprisonment in the institutional division for any
term of not more than 2 years or less than 6 months and in addition to the
imprisonment, may be assessed a fine not to exceed $10,000.00. Tex. Penal Code.
The sentence of 2 years incarceration is grossly disproportionate.
In terms of other State Jail Theft cases, the facts which made up the gist of the
State Jail Theft now before this Court, when considered in conjunction with her
criminal history and the fact she has received community supervision initially, this
Court must conclude that the punishment assessed, the sentence of 2 years
confinement is grossly disproportionate to the offense committed.
Accordingly, this Court must proceed to the next two steps in the McGruder
analysis: (1) sentences for similar crimes in the same jurisdiction and (2) sentences
for the same crime in other jurisdictions. Appellant is guilty of the offense charged,
but her punishment is excessive. Punishment for the worst possible State Jail Theft
cannot exceed a 2 years sentence. Appellant was sentenced to 2 years. It is clear
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that other much more serious State Jail Theft convictions resulted in significantly
less harsh sentences than Appellant received.
Simply stated, the punishment assessed against Appellant, while legally
within the range of punishment available to the Court, exceed what was right and
fair. Twenty four months confinement in prison is not proportionate for the offense
of State Jail Theft in this situation and under these facts and circumstances.
Accordingly, the sentence must not stand. Appellant is entitled to a new punishment
hearing.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable
Court sustain the point of error raised hereinabove, and vacate the commitment to
the Texas Department of Corrections Institutional Division remand the case for a
new sentencing hearing.
Respectfully submitted,
CARGILL & ASSOCIATES
BY: /s/Mark W. Cargill
Mark W. Cargill
SBN: 00787201
701 N. Elm
Palestine, Texas 75801
Telephone: 903/729-8011
Facsimile: 903/729-5112
Attorney for Appellant
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CERTIFICATE OF SERVICE
This is the certify that on October 30, 2015, a true and correct copy of the above and
foregoing document was served on the District Attorney’s Office, Anderson County,
and all other interested parties, by hand delivery, mail, and/or facsimile and regular
mail.
/s/ Mark W. Cargill
Mark W. Cargill
Word Count
On this 30th day of October, 2015, I, Mark W. Cargill, hereby certifies that this brief
has a word count of 1510.
/s/ Mark W. Cargill
Mark W. Cargill
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Christi Lynn Coker v. State
Combined Opinion