Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 5/8/2015 8:29:00 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00009-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 5/7/2015 4:42:05 PM DEBBIE AUTREY CLERK No. 06-15-00009-CR __________________________________________________________________________
IN THE SIXTH DISTRICT COURT OF APPEALS AT TEXARKANA, TEXAS __________________________________________________________________________
CHRISTIAN SIBLEY Appellant, v.
THE STATE OF TEXAS Appealed from the County Court At Law One Gregg County, Texas __________________________________________________________________________
BRIEF OF THE APPELLANT __________________________________________________________________________
Clement Dunn State Bar No. 06249300 140 East Tyler, Suite 240 Longview, Texas 75601 Telephone: 903-753-7071 Fax: 903-753-8783 ORAL ARGUMENT WAIVED *2 IDENTITY OF PARTIES AND COUNSEL Appellant certifies that the following is a complete list of all parties to the trial
court = s judgment and the names and addresses of their trial and appellate counsel.
1. Appellant: Christian Sibley
2. Appellant = s Trial Counsel: Clement Dunn
Attorney at Law 140 E. Tyler Street, Suite 240 Longview, TX 75601 TSB No. 06249300 3. Appellant = s Counsel on Appeal: Clement Dunn
Attorney at Law 140 E. Tyler Street, Suite 240 Longview, TX 75601 TSB No. 06249300 4. Attorney for the State: Reid McCain
Assistant District Attorney, Gregg County 101 East Methvin St., Suite 333 Longview, Texas 75601 TSB No. 24076541 i *3 TABLE OF CONTENTS I DENTITY OF P ARTIES AND C OUNSEL ......................................................................................... i
T ABLE OF C ONTENTS ................................................................................................................ ii
I NDEX OF A UTHORITIES ........................................................................................................... iii
S TATEMENT OF THE CASE......................................................................................................1
S TATEMENT REGARDING ORAL ARGUMENT....................................................................1
ISSUE PRESENTED .......................................................................................................................1
STATEMENT OF THE FACTS .........................................................................................................1
SUMMARY OF THE ARGUMENT ...................................................................................................2
ARGUMENT ...............................................................................................................................2
PRAYER ....................................................................................................................................................................... 5
CERTIFICATE OF SERVICE ...................................................................................................................................... 6
CERTIFICATE OF WORD COUNT ........................................................................................................................... 6
ii *4 INDEX OF AUTHORITIES Cases Nance v. State , 946 S.W. 2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d) ..................4
Olson v. State , No. 02-14-00143-CR (Tex. App.—Fort Worth, dec’d April 23, 2015)
(unpublished) ............................................................................................................................4
Williams v. State , 958 S.W. 2d 844,845 (Tex. App.—Houston (14 th Dist.) 1997, pet. ref’d). .4
Mitchell v. State , 931 S.W. 2d 950 (Tex. Crim. App. 1996) ...................................................4
Johnson v. State , Nos. 14-14-00209-CR, 14-14-00210-CR (Tex. App. –Houston (14 th Dist.)
dec’d March 10, 2015)(unpublished) ......................................................................................4
Segundo v. State , 270 S.W. 3d 79, 87 (Tex. Crim. App. 2008) ...............................................5
Aldor v. State , 871 S.W. 2d 726, 738 (Tex. Crim. App. 1994) ................................................5
Wilkerson v. State , 736 S.W. 2d 656, 659 (Tex. Crim. App. 1987) .........................................5
Constitutional Provisions Article 37.07, Tex. Crim. Proc. sec. 3(a)(1) .............................................................................3
Article 37.07, Tex. Crim. Proc., section 3(g) ...........................................................................4
iii *5
STATEMENT OF THE CASE Offense: Escape From Custody
Verdict: Guilty; three hundred thirty (330) days confinement – County Jail.
Date of Verdict: October 20, 2014
Trial Court: County Court At Law One, Gregg County, Texas.
This case involves a prosecution for the offense of Class A misdemeanor Escape.
C.R., at 4. The Appellant entered a plea of guilty to the Court. R.R. at 5. This occurred
without an agreement between the State and the Appellant regarding punishment; this
entailed an “open” plea. Id. At the end of the hearing, the Court imposed a sentence of three-
hundred-thirty days in the county jail, a four-hundred dollar fine and costs of court. Id., at
14.
STATEMENT REGARDING ORAL ARGUMENT Believing the instant case contains issues capable of resolution on the basis of the
record and the brief Appellant respectfully does not request oral argument.
ISSUE PRESENTED The Appellant respectfully submits that the Trial Court based its sentence on matters
not properly in evidence before the Court and therefore not appropriate as factors in the
assessment of sentences.
STATEMENT OF THE FACTS At the conclusion of the hearing in the instant case, the Trial Court stated:
THE COURT: The Court can consider the fact BRIEF OF APPELLANT, CHRISTIAN
that he's had a prior probation that was revoked, and he received a 330-day sentence, I do believe. He has other misdemeanor convictions.
I'm just going to consider the offense report, the pre-sentence report -- which has a history of misdemeanor convictions -- and the Court's own knowledge of Mr. Sibley through the years.
Mr. Sibley, you just like being a criminal. You just do. And you want to be a criminal, so I'm going to treat you like a criminal. You don't want to be rehabbed. You want to be a gang member. You want to be tough.
So I've got a little misdemeanor case -- the maximum is a year -- so there's not a lot I can do to you. But I am going to sentence you to 330 days in the county jail and a $400 fine, plus cost of court. This has not been a plea agreement, so you have the right to appeal it if you want. It's the same sentence you got for your last revocation. I don't know if you're going to ever change your ways or not, but I've got your number.
R.R., at 13-14.
SUMMARY OF THE ARGUMENT The Trial Court erred in basing its sentence on matters not in evidence and on
assertions that do not properly inform the sentencing decision.
ARGUMENT As noted above, the Trial Court stated:
I’m just going to consider the offense report, the pre-sentence reports— which has a history of misdemeanor convictions—and the Court’s own knowledge of Mr. Sibley through the years.
R.R., at 13-14. When the Court says it is “going to consider,” inter alia, “the Court’s own
knowledge of Mr. Sibley through the years,” the record contains no explanation of what this
might encompass. The context of this statement strongly indicates that this amounts to
something beyond matters in evidence before the Court—i.e., the afore-mentioned offense
BRIEF OF APPELLANT, CHRISTIAN
report, pre-sentence report, and criminal history. The Court states this “knowledge” of Mr.
Sibley “through the years” as a separate, and distinct, basis for the sentence.
The Court did not articulate what this “knowledge” comprises; “the Court’s own
knowledge of Mr. Sibley through the years” places this consideration within, as stated, “the
Court’s own knowledge,” not facts in evidence before the Court at the hearings. The record
does not reflect that the Court took “judicial notice” of any particular matter at all. To the
extent that an inference might arise that the Court judicially noticed its own knowledge, the
record fails to reflect the contents of this knowledge being “judicially noticed.”
The Court went further:
Mr. Sibley, you just like being a criminal. You just do. And you want to be a criminal, so I'm going to treat you like a criminal. You don't want to be rehabbed. You want to be a gang member. You want to be tough.
R.R. 14. The Appellant respectfully submits that no record evidence demonstrates that the
Appellant “likes” being a criminal, or “wanting” to be one. Similarly, nothing shows the
Appellant resistant to efforts at rehabilitation.
Article 37.07, Tex. Crim. Proc., controls the admissibility of evidence at the
punishment phase of a trial:
Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.
(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any
matter the court deems relevant to sentencing, including but not limited to the prior
criminal record of the defendant, his general reputation, his character, an opinion
regarding his character, the circumstances of the offense for which he is being tried,
and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt
by evidence to have been committed by the defendant or for which he could be held
criminally responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act.
BRIEF OF APPELLANT, CHRISTIAN
Id., sec. 3(a)(1). Further, Article 37.07, section 3(g) incorporates the notice requirement of
Rule 404(b), Tex. R. Evid., and provides that the State must give a defendant reasonable
notice of its intent to introduce extraneous-offense evidence at punishment. The statute
further provides that notice is reasonable “only if the notice includes the date on which and
the county in which the alleged crime or bad act occurred and the name of the alleged victim
of the crime or bad act.” Article 37.07, Tex. Crim. Proc., section 3(g). The purpose of the
notice requirement is to prevent unfair surprise to the defendant. See: Nance v. State, 946
S.W. 2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d); Olson v. State, No. 02-14-
00143-CR (Tex. App.—Fort Worth, dec’d April 23, 2015) (unpublished). When the trial
court (instead of a jury) assesses punishment, it may determine that an extraneous offense is
relevant to punishment and admit such evidence, but the court may then only consider the
extraneous offense in assessing punishment if it finds the offense was proven beyond a
reasonable doubt. Williams v. State, 958 S.W. 2d 844,845 (Tex. App.—Houston (14 th Dist.)
1997, pet. ref’d); Mitchell v. State, 931 S.W. 2d 950 (Tex. Crim. App. 1996); Johnson v.
State, Nos. 14-14-00209-CR, 14-14-00210-CR (Tex. App. –Houston (14 th Dist.) dec’d
March 10, 2015)(unpublished).
In the instant case, the Court relied on its own knowledge, which amounts to facts
not in evidence—and certainly not proven in the courtroom and on the record, and thus
subject to potential appellate review. This “evidence,” existing outside of the record, could
not be subject to the standard, statutorily required, of being proven beyond a reasonable
doubt. The Appellant had no notice of what this “knowledge” of the Court entailed; even as
the Court stated this as a basis for its sentencing decision, the “knowledge” remained
obscure.
BRIEF OF APPELLANT, CHRISTIAN
This “knowledge,” however, translated into the Court’s stating that the Appellant
“liked” being a criminal and a member of a gang, and was averse to any effort to change
from these predilections. This becomes tantamount to punishing the Appellant not for the
offense for which he was convicted, or even for specific extraneous acts, but for being a
criminal generally. This has long been deemed improper by the appellate judiciary in Texas.
See, e.g., Segundo v. State, 270 S.W. 3d 79, 87 (Tex. Crim. App. 2008); Aldor v. State, 871
S.W. 2d 726, 738 (Tex. Crim. App. 1994); and Wilkerson v. State, 736 S.W. 2d 656, 659
(Tex. Crim. App. 1987).
PRAYER The Appellant respectfully requests this case be reversed and remanded for a new
hearing on punishment.
Respectfully submitted, __/s/ Clement Dunn_______________ 140 East Tyler Street, Suite 240 Longview, Texas 75601 (903) 753-7071 Fax: 903-753-8783 State Bar No. 06249300 BRIEF OF APPELLANT, CHRISTIAN
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this brief was delivered to the Gregg
County District Attorney = s Office, Longview, Texas on this 7 th day of May 2015.
__/s/ Clement Dunn_______________ CERTIFICATE OF WORD COUNT I hereby certify that a total of 1746 words are included in this brief.
__/s/ Clement Dunn_______________ BRIEF OF APPELLANT, CHRISTIAN