Hall, Leonard James ( 2015 )

PD-1191-15
PD-1191-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/15/2015 3:50:42 PM
Accepted 9/16/2015 12:53:34 PM
NO. PD-_______________ ABEL ACOSTA
CLERK
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
Leonard James Hall, Appellant
v.
The State of Texas, Appellee
*************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
***************
FROM THE COURT OF APPEALS
SECOND APPELLATE DISTRICT OF TEXAS
FORT WORTH, TEXAS
NO. 02-15-00094-CR
TARRANT COUNTY
TRIAL COURT NO. 1352061D
R. Scott Walker
STATE BAR # 24004972
222 W. Exchange Avenue
Fort Worth, TX 76164
September 16, 2015
(817) 478-9999
(817) 977-0163 FACSIMILE
scott@lawyerwalker.com
Attorney for Appellant
Oral Argument Requested
1
IDENTITY OF TRIAL JUDGE, PARTIES, AND COUNSEL
The following is a complete list of all
parties, the trial judge, as well as the names and
addresses of all counsel.
Trial Judge: Hon. Mollie Westfall
Appellant: Leonard James Hall
Trial Counsel: Dan Pitzer
Attorney at Law
204 N. Main Street
Mansfield, Texas 76063
Appellate R. Scott Walker
Attorney for Appellant: Attorney at Law
222 W. Exchange Avenue
Fort Worth, Texas 76164
Appellee: The State of Texas
Trial Attorney for Rebecca D. McIntire
Appellee: Tarrant County Assistant
District Attorney
401 W. Belknap
Fort Worth, Texas 76196
Appellate Attorney for Sharen Wilson
Appellee: Tarrant County
District Attorney
401 W. Belknap
Fort Worth, Texas 76196
2
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . 2
TABLE OF CONTENTS . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . 4
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . 5
STATEMENT OF PROCEDURAL HISTORY OF THE CASE. . . 6
QUESTION PRESENTED . . . . . . . . . . . . . . . 6
ARGUMENT (WAIVER OF DISPROPORTIONALITY OF
SENTENCE COMPLAINTS). . . . . . . . . . . . . . . 6
PRAYER . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . 15
APPENDIX. . . . . . . . . . . . . . . . . . . . 16
3
INDEX OF AUTHORITIES
CASES
Davis v. State,
905 S.W.2d 655, (Tex.App.--Texarkana
1995, pet. ref’d). . . . . . . . . . . . . . 8
Ex Parte Beck,
922 S.W.2d 181 (Tex.Crim.App. 1996). . . . . 9
Ex Parte Torres,
943 S.W.2d 469 (Tex.Crim.App. 1997) . . . . 10
Ex Parte McIver,
586 S.W.2d 851 (Tex.Crim.App. 1979) . . . . . 9
Graham v. Florida,
560 U.S. 48,(2010). . . . . . . . . . . . . . 9
Kim v. State,
283 S.W.3d 473 (Tex.App.--Fort Worth,
2009, pet ref’d). . . . . . . . . . . . . 9, 12
Pruitt v. State,
737 S.W.2d 622 (Tex.App.—Fort Worth, pet.
Ref’d) . . . . . . . . . . . . . . . . . . . 8
Solem v. Helm,
463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d
637 (1983). . . . . . . . . . . . . . . . . 8
State v. Aguilera,
165 S.W.3d 695 (Tex.Crim.App. 2005). . . . . 8
State v. Savage,
933 S.W.2d 497, 499 (Tex.App. 1996) . . . . . 9
4
STATEMENT REGARDING ORAL ARGUMENT
Oral argument of this case is hereby requested
on behalf of Appellant.
All references to Texas statutes, rules, etc.
are references to the latest edition published by
West Publishing Company, unless otherwise
indicated.
LEONARD JAMES HALL, Appellant-Applying for Review
V.
THE STATE OF TEXAS, Appellee
************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
************
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:
STATEMENT OF THE CASE
This appeal has resulted from a probation
revocation for aggravated assault with a deadly
weapon. On March 20, 2015, appellant pled not true
to the allegations in the Petition to Proceed to
Adjudication. (C.R. Vol. 1, p. 58, R.R. v. 1, p.
1-10). After evidence was presented, the trial
judge found all but one of the allegations to be
5
true and set punishment at seven years confinement.
(C.R. Vol. 1, p. 58).
STATEMENT OF PROCEDURAL HISTORY OF THE CASE
The Court of Appeals rendered its decision and
delivered its written non-published memorandum
opinion on August 27, 2015. The deadline for
filing a Petition for Discretionary Review is
September 26, 2015.
QUESTION PRESENTED
Whether disproportionate sentencing is waived
if not presented to the trial court or in a motion
for new trial.
ARGUMENT
The Second Court of Appeals, in this case and
in many others, has held that a disproportionality
complaint is forfeited when there is no complaint
during the trial or in a motion for new trial. The
Court of Criminal Appeals has consistantly declined
to rule on this issue. This is an important issue
that begs to be heard by this Honorable Court.
6
It is well-established under Texas Law that a
sentence imposed by a judge within the statutory
range is not an abuse of discretion. This court
does not have the jurisdiction to review the
reasonableness of punishment assessed by a trial
court of this State if it is within the range of
punishment prescribed by statute for the offense,
unless it is so plainly disproportionate to the
offense as to shock the sense of humankind and thus
constitute cruel and unusual punishment prohibited
by the United States and Texas Constitutions. See
Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001,
77 L. Ed. 2d 637, 649 (1983), Davis v. State, 905
S.W.2d 655, 664 (Tex.App.--Texarkana 1995, pet.
ref’d). In the instant case, the trial judge set
sentence at seven years, when the maximum for the
offense was 20 years.
In the instant case, there was no
disproportionality complaint during the trial or in
a subsequent motion for new trial. Again, the
Second Court of Appeals has consistently held that
proportionality complaints are forfeited when there
7
is no complaint during the trial or in a subsequent
motion for new trial. Kim v. State, 283 S.W.3d
473, 475 (Tex.App.--Fort Worth 2009, pet ref’d).
However, Justice Dauphinot has, on several
occasions, dissented as to that issue.
In Kim, Justice Dauphinot very carefully
delineates the practical problems with the majority
holding. In a criminal case, pronouncing sentence
in open court in the presence of the defendant ends
the trial; that act triggers the running of the
appellate timetable. State v. Aguilera, 165 S.w.
3d 695, 698 (Tex.Crim.App. 2005), Pruitt v. State,
737 S.W.2d 622, 623 (Tex.App.—Fort Worth, pet.
Ref’d). Unlike a civil case, in which there is
usually a delay between pronouncing the verdict in
open court and signing the judgment, there is no
lag time in a criminal case between the
pronouncement of sentence and its execution. Once a
defendant begins serving the sentence, it is too
late to change it. Although there has been some
suggestion that a judge may immediately change the
sentence, there is no provision in the code of
8
criminal procedure for offering evidence of
disproportionality after sentencing, as the
admission of additional evidence after
pronouncement would effectively create a second
punishment phase. A defendant cannot object in
advance that a sentence is disproportionate because
until the sentence is pronounced, the defendant
does not know that it will be objectionable.
Justice Dauphinot also asks, “Does the majority
contend that a defendant must ask for re-
sentencing?” How?” There is no judgment,
notwithstanding the verdict (JNOV) in a criminal
case. State v. Savage, 933 S.W.2d 497, 499
(Tex.App. 1996). There is no provision in the rules
of appellate procedure or the code of criminal
procedure that permits an oral motion for new
trial, and it would probably be malpractice to
lodge one on the sentencing issue at trial and
fore-go raising other issues later in a traditional
motion for new trial.
While a party in a civil case must file a
motion for new trial, in order to lodge a factual
9
sufficiency issue on appeal of a jury verdict, in
criminal cases the motion for new trial is
expressly not a prerequisite to raising the
complaint on appeal; rather, it is merely a vehicle
to provide an adequate record in support of that
claim.
The problem a defendant faces in raising a
proportionality claim under the Eighth Amendment is
one of providing a sufficient record of
disproportionality. Such claim should not be
dismissed out of hand, for failure to raise it in
the trial court, anymore than an ineffective
assistance of counsel claim should be held
forfeited by not raising it at trial or in a motion
for new trial.
Also, as Justice Dauphinot points out, another
reason courts have given for not enforcing a
procedural bar in this context of ineffective
assistance is because there is not generally a
realistic opportunity to adequately develop the
record for appeal in post-trial motions. In this
regard, the courts have noted that a post-
10
conviction writ proceeding, rather than a motion
for new trial, is the preferred method for
gathering the facts necessary to substantiate such
a Sixth Amendment challenge. While expansion of
the record may be accomplished in a motion for new
trial, that vehicle is often inadequate because of
time constraints and because the trial record has
generally not been transcribed at this point.
Further, mounting an ineffective assistance attack
in a motion for new trial is inherently unlikely if
the trial counsel remains counsel during the time
required to file such a motion. Hence, in most
ineffective assistance claims, a writ of habeas
corpus is essential to gathering the facts
necessary to adequately evaluate such claims. The
pursuit of such a claim on direct appeal may be
fruitless. Ex parte Torres, 943 S.W.2d 469, 475
(Tex.Crim.App. 1997).
Just as the courts have held that a defendant
can rarely sustain a complaint of ineffective
assistance of counsel or jury misconduct on direct
appeal; the Second Court of Appeals holds that a
11
criminal defendant can rarely sustain a complaint
of disproportionality on direct appeal. A defendant
cannot complain about a disproportionate sentence
before it is pronounced. Disproportionality
requires a showing beyond a defendant's not liking
the sentence. It requires evidence of
disproportionality. Even a mere objection is
problematic because the trial is over when the
sentence is pronounced, so an objection could be
lodged only after the trial has ended. What would
that proceeding be called? Disproportionality
complaints, like those of ineffective assistance,
should be reviewable in appellate proceedings
regardless of whether the complaint was brought to
the attention of the trial court. Kim v. State,
dissenting opinion, 283 S.W.3d 473, 476-479
(Tex.App.—Fort Worth, 2009, pet ref’d).
It will be noted that Justice Dauphinot is
correct that requiring an objection to the sentence
during the trial or in a motion for new trial is so
impractical that the burden on the defense to
preserve the error is virtually insurmountable. It
12
should also be noted that the recent U.S. Supreme
Court holding in Graham makes it clear that the
test in Solem is still the test today. Grahm v.
Florida, 560 U.S. 48,60 (2010).
Without minimalizing the practicality concerns
deliniated by Justice Dauphinot, there is another
basis for a holding that failure to bring a
disproportionality complaint before the trial court
is not waiver. The argument is founded on well-
settled constitutional law. The Court of Criminal
Appeals has held that a sentence outside the
statutory range is void and that the complaint can
be brought for the first time on appeal. Ex parte
Beck, 922 S.W.2d 181, 182 (Tex.Crim.App. 1996), Ex
parte McIver, 586 S.W.2d 851, 854 (Tex.Crim.App.
1979). The analysis is that a sentence which is
outside the statutory range is an illegal sentence
which is unauthorized by law and is therefore void.
A sentence which violates the Eighth Amendment
because it is a disproportionate sentence is also
an illegal sentence which is not authorized by law.
After all, the U.S. Constitution is certainly the
13
supreme law of the land. Such a sentence is also
void, and the complaint should be reviewable when
brought for the first time on appeal. Any cases
holding otherwise should be overruled.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Leonard James
Hall, appellant, prays that the case be reversed or
for whatever other relief he has shown himself
entitled.
Respectfully Submitted,
S/Scott Walker
By: R. Scott Walker
Attorney for Appellant
222 W. Exchange Avenue
Fort Worth, Texas 76164
(817) 478-9999
(817) 977-0163 FAX
State Bar No. 24004972
14
CERTIFICATE OF SERVICE
A copy of this petition was served by first
class mail to the Office of Criminal District
Attorney, Tarrant County Courthouse, 401 W.
Belknap, Fort Worth, Texas 76196 and to the State
Prosecuting Attorney at P.O. Box 12405, Austin,
Texas 78711 on the 16th day of September, 2015.
s/Scott Walker
Scott Walker
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the
length requirements as set forth by the Texas Rules
of Appellate Procedure in that this document
contains 2,228 words, and that the document is in
14 point type.
s/Scott Walker
Scott Walker
15
APPENDIX
16
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00094-CR
LEONARD JAMES HALL APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1352061D
----------
MEMORANDUM OPINION1
----------
This is an appeal from a judgment revoking deferred adjudication
community supervision and adjudicating guilt. In 2013, Appellant Leonard James
Hall pleaded guilty, pursuant to a plea agreement, to aggravated assault with a
deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
Following this plea, the trial court placed Hall on seven years’ deferred
1
See Tex. R. App. P. 47.4.
adjudication community supervision and imposed a $700 fine. In 2015, the State
filed a petition to proceed to adjudication, alleging in five paragraphs multiple
violations by Hall of the conditions of his deferred adjudication community
supervision. Hall pleaded not true to all five alleged violations. The trial court
found that Hall had committed the violations alleged in paragraphs 1, 2, 3, and 5;
revoked Hall’s deferred adjudication community supervision; adjudicated his guilt
of the offense of aggravated assault with a deadly weapon; and sentenced him to
seven years’ confinement. In a single issue, Hall argues that the seven-year
sentence imposed by the trial court is excessive and disproportionate. We will
affirm.
Hall concedes that he did not object to his punishment when it was
imposed, nor did he raise this complaint in a motion for new trial. We have held
on numerous occasions that this type of claim must be preserved at the trial court
level. See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.
ref’d); Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no
pet.); see also Cisneros v. State, No. 02-06-00103-CR, 2007 WL 80002, at *1
(Tex. App.—Fort Worth May 23, 2007, pet. ref’d) (mem. op., not designated for
publication) (collecting cases); cf. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim.
App. 2013) (“A sentencing issue may be preserved by objecting at the
punishment hearing, or when the sentence is pronounced.”). Because Hall did
2
not raise his complaint in the trial court, the complaint is forfeited. 2 We overrule
Hall’s sole issue.
Having overruled Hall’s sole issue, we affirm the trial court’s judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 27, 2015
2
Even if we were to reach the merits of Hall’s complaint, his punishment is
within the statutory limits for the offense. See Tex. Penal Code Ann. §§ 12.33(a),
30.02(c)(2) (West 2011). Punishment that is imposed within the statutory limits
and based upon the sentencer’s informed normative judgment is generally not
subject to challenge for excessiveness except in “‘exceedingly rare’” situations.
Kim, 283 S.W.3d at 476 (quoting Ex parte Chavez, 213 S.W.3d 320, 323–24
(Tex. Crim. App. 2006)); see also Davis v. State, 323 S.W.3d 190, 195–96 (Tex.
App.—Dallas 2008, pet. ref’d) (stating that punishment within statutory range was
not excessive, cruel, or unusual when defendant argued that the penitentiary
could not provide treatment for his medical condition).
3
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00094-CR
Leonard James Hall § From the 371st District Court
§ of Tarrant County (1352061D)
v. § August 27, 2015
§ Opinion by Justice Walker
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By _/s/ Sue Walker___________________
Justice Sue Walker