Case Information
*1 NO. 02-15-00032-CR
FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS IN THE COURT OF APPEALS 5/5/2015 3:00:03 PM FOR THE SECOND DISTRICT OF TEXAS BRA SPISAK FORT WORTH, TEXAS Clerk
ROBERT GONZALES v.
THE STATE OF TEXAS
APPEALING THE TRIAL COURT'S JUDGMENT IN CAUSE NUMBER 1351979D FROM THE 396 DISTRICT COURT OF TARRANT COUNTY, TEXAS HON. GEORGE GALLAGHER, PRESIDING JUDGE
APPELLANT'S BRIEF
RICHARD A. HENDERSON RICHARD A. HENDERSON, P.C. 100 THROCKMORTON STREET, SUITE 540 FORT WORTH, TEXAS 76102 (817) 332-9602 (817) 335-3940 fax
State Bar No. 09427100 richard@rahenderson.com ATTORNEY FOR APPELLANT
Oral Argument Requested
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TABLE OF CONTENTS
Table of Contents ..... i List of Interested Parties ..... ii Index of Authorities ..... iii Issues Presented ..... iv Issue for Review No. 1: THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE. ..... iv Statement of the Case ..... 1 Summary of the Facts of the Case ..... 2 Summary of Argument ..... 2 Arguments and Authorities ..... 3 Issue for Review No. 1: (Restated) THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE. ..... 3 Prayer ..... 4 Certificate of Compliance ..... 5 Certificate of Service ..... 6
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LIST OF INTERESTED PARTIES
Robert Gonzales
TDCJ 1978388
Formby Unit
998 CR AA
Plainview, Texas 79072
Appellant
Ms. Debra Windsor,
Assistant Criminal District Attorney
Post-Conviction
Jim Hudson
Tracey Kapsidelis
Assistant Criminal District Attorneys
District Attorney's Office
401 West Belknap
Fort Worth, Texas 76196-0201
Sharen Wilson,
Criminal District Attorney
Tarrant County, Texas
Attorneys for the State
Abe Factor
6211 Airport Freeway Fort Worth, Texas 76117 Trial Attorney Richard A. Henderson Richard A.Henderson, P.C. 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 Attorney for Appellant
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INDEX OF AUTHORITIES
CASES:
Acosta v. State, 160 S.W.3d 204; (Tex App-Ft. Worth 2005-no pet.) ..... 4 Calhoun v. State, 214 S.W. 335 (Tex. Crim. App. 1919) ..... 4 Delacruz v. State, 167 S.W.3d 904 (Tex. App.-Texarkana 2005) ..... 4 Harmelin v. Michigan, 501 U.S. 957 (1991) ..... 4 Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim. App. 1973) ..... 4 McGruder v. Puckett, 954 F2d 316 (5 Cir.) cert denied 506 U.S. 849 (1992) ..... 4 Codes: Texas Code of Criminal Procedure 42.123 (g) (2) (b) ..... 3 Constitutions: Amendment of the United States Constitution. ..... 4 Article 1 Section 13 of the Texas Constitution ..... 4
*5 ISSUES PRESENTED
ISSUE FOR REVIEW NO. ONE
THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE.
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IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS FORT WORTH
ROBERT GONZALES, APPELLANT V.
THE STATE OF TEXAS, APPELLEE § § § § § § §
APPEALED FROM CAUSE NUMBER 1351979D FROM THE DISTRICT COURT OF TARRANT COUNTY, TEXAS THE HONORABLE, GEORGE GALLAGHER, JUDGE PRESIDING
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
This is an appeal (CR 54-55) from an open plea of guilty to the trial court (CR 38-46) for arson with intent to damage a habitation. (CR 49-51). A presentence investigation was ordered by the court. (CR 47-48). A punishment hearing was held on January 26, 2015 (RR volume 2). The trial court sentenced Appellant to eighteen (18) years in the Institutional Division of the Texas Department of Criminal Justice with a deadly weapon finding, specifically, a combustible or flammable liquid. (CR 49-51 RR2:100).
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SUMMARY OF THE FACTS OF THE CASE
On December 3, 2013 at approximately 6:15 a.m., Shane Bradshaw and companion, Akita McGowan were asleep at their residence at 3437 Nies Street in Fort Worth, Texas. Akita was awakened by hearing a banging on the Plexiglas windows of the bedroom and by the head board of their bed being pushed from the window from the outside. Akita then heard the spilling of a liquid and smelled gasoline. As she was trying to awaken Shane, the bedroom became engulfed in flames. They escaped uninjured but most of the house was burned severely and most of their personal property was damaged or destroyed. Akita owned three cats, two cats escaped and one died of smoke inhalation. (RR2: 41-51).
Appellant was observed fleeing the scene by surveillance camera from the home. Police and fire department investigators searched the home of Appellant who lived next door. Gasoline was discovered on his clothes. Appellant admitted the offense and pleaded guilty to it. (CR- PSI 2-5).
SUMMARY OF ARGUMENT
It was an abuse of discretion and the punishment of eighteen (18) years on the arson with intent to damage a habitation charge constitutes cruel and unusual punishment inflicted on Appellant by the trial court.
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ARGUMENTS AND AUTHORITIES
ISSUE FOR REVIEW NO. ONE (RESTATED)
THE TRIAL COURT ABUSED ITS DISCRETION AND ASSESSED CRUEL AND UNUSUAL PUNISHMENT BY SENTENCING APPELLANT TO EIGHTEEN (18) YEARS IN THE INSTITUTIONAL DIVISION OF THE TESAS DEPARTMENT OF CRIMINAL JUSTICE.
A Pre-Sentence Investigation (PSI) was prepared. The PSI states Appellant's age to be thirty-four (34). The sentence is also an aggravated sentence meaning Appellant will have to serve half of the sentence, nine years, before he is eligible for parole under Texas Code of Criminal Procedure 42.123 (g) (2) (b).
An eighteen (18) year sentence for a person this young (age 34) is severe and harsh punishment. Appellant believes it is cruel and unusual and disproportionate even if the punishment is within the punishment range allowed by law.
Appellant presented evidence from his family in which it was shown he accepts responsibility for his crime (RR2: 73-75).
Raymond Escobar Jr. testified that both Appellant and Appellant's father work for Escobar's company and that Appellant is a diligent and good worker who can work on jobs without supervision. (RR2: 83-85).
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Appellant believes his punishment of eighteen (18) years is cruel and unusual and disproportionate and violates both the Amendment of the United States Constitution and Article 1 Section 13 of the Texas Constitution, Calhoun v. State, 214 S.W. 335 (Tex. Crim. App. 1919); Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim. App. 1973); Delacruz v. State, 167 S.W.3d 904 (Tex. App.-Texarkana 2005); Acosta v. State, 160 S.W.3d 204; (Tex App-Ft. Worth 2005-no pet.); McGruder v. Puckett, 954 F2d 316 ( Cir.) cert denied 506 U.S. 849 (1992) and Harmelin v. Michigan, 501 U.S. 957 (1991).
After this court reviews the record and the PSI, Appellant believes that this court will reverse the trial court and order a new punishment hearing in which a proportionate and reasonable sentence will be assessed.
PRAYER
Appellant respectfully requests that the court reverse the trial court and order a new punishment hearing. Appellant also prays for all such additional or future relief to which he may be entitled to in law or in equity.
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Respectfully Submitted, RICHARD A. HENDERSON, P.C. Two City Place 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 Telephone: (817) 332-9602 Telecopier: (817) 335-3940 richard@rahenderson.com
RICHARD A. HENDERSON State Bar No. 09427100 ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex.R.App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex.R.App. P. 9.4(i) because it contains 1,317 words, excluding any parts exempted by Tex.R.App.P. 9.4(i)(1), as computed by the word-count feature of Microsoft Office Word 2010, the computer software used to prepare the document.
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CERTIFICATE OF SERVICE
A true copy of the Appellant's Brief has been electronically served on opposing counsel, Ms. Debra Windsor, Assistant Criminal District Attorney, PostConviction, Tarrant County District Attorney's Office, 401 W. Belknap Street, Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr. Robert Gonzales, TDCJ #1978388, Formby Unit, 998 CR AA, Plainview, Texas 79072 on this the of May, 2015.