ACCEPTED
13-15-00374-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
13-15-00374-CR 9/15/2015 4:33:27 PM
Dorian E. Ramirez
CLERK
CAUSES 13-15-00374-CR
IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
CORPUS CHRISTI, TEXAS
9/15/2015 4:33:27 PM
DORIAN E. RAMIREZ
Clerk
VINCENT ORISBEL BARRERA, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S BRIEF
Trial Cause 14-9-9313
Jackson Co. District Court
Submitted by
W. A. (BILL) WHITE
Attorney for Appellant
POB 7422, Victoria, TX 77903
(361) 575-1774 voice & fax
TBN 00788659
ORAL ARGUMENT NOT REQUESTED
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IDENTITY OF PARTIES AND COUNSEL
Appellant was represented at trial by Brenna Crane,
Attorney at Law, 302 West Forrest St., Victoria, TX
77901. Appellant is represented on appeal by W. A.
(Bill) White, Attorney at Law, POB 7422, Victoria, TX
77903-7422.
During trial, appellant was a resident of Jackson
County, Texas. Appellant is currently incarcerated in
IDTDCJ.
The State was represented at trial by Robert E.
Bell, D.A., of the Jackson County District Attorney’s
Office, 115 W. Main Street, Room 205, Edna, TX 77957.
Appellant anticipates that Jim Vollers, Attorney at
Law, 2201 Westover Road, Austin, TX 78703, will handle
the State’s reply brief in this cause.
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TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of Case and Statement of Facts 5
Issue Presented 6
Summary of Argument 6
Argument 6
Sole Issue 6
Prayer 8
Certificate of Service 9
Certificate of Compliance 9
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INDEX OF AUTHORITIES
Cases Page
Coker v. Georgia, 433 U.S. 584 (1977) 8
Solem v. Helm, 463 U.S. 277 (1983) 8
Trop v. Dulles, 356 U.S. 86 (1958) 8
Weems v. United States, 217 U.S. 349 (1910) 7
Constitutional Provisions
U.S. Const. amend VIII 8
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CAUSE 13-15-00374-CR
Trial Cause 14-9-9313
VINCENT ORISBEL BARRERA IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS CORPUS CHRISTI, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, VINCENT ORISBEL BARERA,
through counsel, W. A. (BILL) WHITE, Attorney at Law,
showing:
STATEMENT OF CASE AND STATEMENT OF FACTS
Appellant was indicted in September 2014 for
tampering with physical evidence, a third degree
felony. The indictment alleged four prior felony
convictions in enhancement paragraphs, making the
offense that of habitual felon (25 to 99 years or life
in IDTDCJ). The indicted crime was alleged to have
occurred on or about 7/24/14 in Jackson County, Texas.
Appellant, with counsel, pled “not guilty” to his
indictment without plea agreement on 7/15/15 in open
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court, and “true” to the four enhancement paragraphs.
(RR Vol. 2, pp. 9-12). All issues of guilt/innocence
and punishment were tried before the bench on 7/15/15
and 7/16/15, without a jury. At the conclusion of
evidence and argument, the trial court found appellant
guilty of the indicted offense and assessed punishment
at 40 years in IDTDCJ. (RR Vol. 3, pp. 10-11)
ISSUE PRESENTED
APPELLANT’S SENTENCE OF 40 YEARS IN PRISON FOR THIS
CRIME CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT
SUMMARY OF ARGUMENT
Appellant should have received a prison sentence
shorter than 40 years for this theft-related crime
under evolving standards of decency echoed in the
eighth amendment.
ARGUMENT
SOLE ISSUE
Appellant visited a convenience store in Jackson
County on 7/24/14 in the daytime during an hour when
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the store had no patrons, only owners and employees. A
child of the owners had left her cell phone sitting on
the edge of a beer tray inside the store and walked
off. Appellant took the phone and later, according to
the State, removed and erased its “sim” card, scrubbing
the phone of all ownership indicia (photos, screensaver
art, contacts, text messages, etc.). According to the
State, this “scrubbing” of the sim card amounted to
tampering with physical evidence.
An objection on grounds of cruel and unusual
punishment grounds was raised by trial counsel when
appellant was sentenced to 40 years in prison. This
objection was overruled by the trial court. (RR Vol. 3,
p. 11). A 40-year sentence is disproportionate to
appellant’s offense in this cause.
The constitutional principal of proportionality has
been recognized explicitly in the U.S. Supreme Court
for over a hundred years. See generally Weems v. United
States, 217 U.S. 349 (1910). A criminal sentence must
be proportionate to the crime for which the defendant
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has been convicted. Solem v. Helm, 463 U.S. 277, 291
(1983). A court must consider the severity of the
penalty in deciding whether it is disproportionate.
See, e.g., Coker v. Georgia, 433 U.S. 584, 598 (1977).
The prohibition against cruel and unusual punishment is
contained within the eighth amendment to our federal
constitution. See U.S. Const. amend VIII.
Applying evolving standards of decency that mark
the progress of a maturing society [see generally Trop
v. Dulles, 356 U.S. 86 (1958)], appellant’s prison
sentence in this cause should be vacated and rendered
for far less than 40 years.
Appellant, although he has an extensive criminal
history, committed a completely nonviolent property
crime in this cause. A 40-year sentence is simply too
high for such an offense.
PRAYER
Appellant prays that his sentence be vacated in
this cause and rendered for less than 40 years.
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Respectfully submitted,
/s/ W. A. White
W. A. (BILL) WHITE
ATTORNEY FOR APPELLANT
POB 7422, Vict., TX 77903
(361) 575-1774 voice/fax
TBN 00788659
CERTIFICATE OF SERVICE
I certify that a true and correct copy or duplicate
original of the foregoing has been provided to Robert
E. Bell, D.A., Jackson Co. District Attorney’s Office,
115 W. Main Street, Room 205, Edna, TX 77957 via U.S.
mail, fax, electronic delivery, or hand-delivery on
this the 15th day of September 2015.
/s/ W. A. White
W. A. White
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 919 words.
/s/ W. A. White
W. A. White
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