Case Information

*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 2/6/2015 10:13:43 PM CHRISTOPHER A. PRINE Clerk

*1 ACCEPTED 14-14-00585-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 2/6/2015 10:13:43 PM CHRISTOPHER PRINE CLERK

No. 14 - 14 - 00585 - CR No. 14 - 14 - 00586 - CR No. 14 - 14 - 00587 - CR

IN THE COURT OF APPEALS FOURTEENTH DISTRICT HOUSTON, TEXAS RYAN VICTOR MOLNOSKE Y , Appellant Vs. THE STATE OF TEXAS, Appellee ON APPEAL FROM CAUSE NO. 66494 , 66495, 71937 149th JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS HONORABLE TERRI HOLDER JUDGE PRESIDING BRIEF FOR THE APPELLANT Joseph Kyle Verret THE LAW OFFICE OF KYLE VERRET, PLLC Counsel for Appellant TBN: 240429432 11200 Broadway, Suite 2743 Pearland, Texas 77584 Phone: 281 - 764 - 7071 Fax: 281 - 764 - 7071 Email: kyle@verretlaw.com ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT R EQUESTED DATE: February 6 , 2015

*2 No. 14 - 14 - 00585 - CR No. 14 - 14 - 00586 - CR No. 14 - 14 - 00587 - CR

IN THE COURT OF APPEALS FOURTEENTH DISTRICT

HOUSTON, TEXAS

RYAN VICTOR MOLNOSKE Y , Appellant Vs.

THE STATE OF TEXAS,

Appellee

BRIEF FOR THE APPELLANT TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: RYAN VICTOR MONOSKEY, the Defendant in Cause 66494, 66495, and 71937 in the 149th JUDICIAL DISTRICT COURT, Brazoria County, Texas, respectfully submits this brief, and would respectfully show the Court the follow ing:

i

TABLE OF CONTENTS

*3 Parties to the Case………………………………………………… ……………… .. … iv List of Authori ties……………………………………………………… …… …………v Statement of the C ase ………………………………… ………………………… … ... ..v i Statement Regarding O ral Argument…………………………………… ……… ….. ..v ii Issues Presented………………………… …………………………… ……… …… .. . vi ii Summary of the Argument………………………………… ………………… … . …….1 Appellant’s First Point of Error……… ………………………… …… …………… .…..2

The evidence is insufficient to support the trial court’s order in Cause 66494 that Appellant reimburse Brazoria County Collections Department for the payment of counsel appointed on account of Appellant’s indigence. App ellant’s Second Point of Error…………………………………………….….……8

There is no basis in the record to support th e trial court’s order in Cause 71937 that Appellant pay $294 in court costs in that cause . Appellants Third Point of Error ……………………………………………...….….…10

If this court finds that the cost bill for the companion cause is a sufficient basis to support the courts costs in Cause 71937, there is no basis in the record to support a $70.00 Warrant/Bond fee in Cause 71937. Appellants Fourth Point of Error . ……………………………………………..………12

The forty - year prison sentence imposed by the trial court in Cause 71937 violated t he Eighth Amendment prohibition against cruel and unusual punishment, as ii *4 the sentence was grossly disproportionate to the crime. Conclusion and Pr ay er………………………………………………… …… … .. .. ….. 16 Certificate of Service……………………………………… ……... ............... .. . ...... .. .... 17 Certificate of Word Count…………………………… ……... … ………… … .. …… …17 Appendix……………………… ………………………………………………. ……..18

Judgment (Cause 6694) Affidavit of Indigence (Cause 71937, Dated November 5, 2013) Notice of Appointment for Perry Stevens Affidavit of Indigence (Cause 66495/ 66494 / 71937, Dated July 5, 2014)

iii

PARTIES TO THE CASE

*5

APPELLANT:

RYAN VICTOR MOLNOSKEY Attorney for Appellant at Trial:

Name: Robert D. Miller SBN: 24049278 Address: 1346 Broadway

Pearland, Texas 77581 Attorney for Appellant on Appeal: Na me: Joseph Kyle Verret SBN: 24042 932 Address: The Law Office of Kyle Verret, PLLC

1200 Broadway, Suite 2743 Pearland, Texas 77584

Phone: 281 - 764 - 7071 Fax: 281 - 764 - 7071 Email: kyle@verretlaw.com

APPELLEE:

THE STATE OF TEXAS Attorneys for the State at Trial:

Name: Brian J. Hrach SBN: 24050787 Address: Brazoria County Criminal District Attorney

111 East Locus Street, Suite 408A Angleton, Texas 77515

Attorney for the State on Appeal: Name: Jeri Yenne SBN: 04240950 Name: David Bosserman SBN: 02679520 Address: Brazoria County Criminal District Attorney

111 East Locust Street, Suite 408A Angleton, Texas 77515

Phone: 979 - 864 - 1230 Fax: 979 - 864 - 1525

iv

LIST OF AUTHORITIES

*6 Constitutional Provisions U.S. CONST. amend. VIII ……………………………………………………………12 Statutes Tex. Cod e Crim. Proc. Ann. Art. 26.04 ( Lexis current through 2013 3d C.S.) ……….2,6 Tex. Code Crim. Proc. Ann. Art. 26.05( Lexis current through 2013 3d C.S.) ……..2,3,6 Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(2) ( Lexis current through 2013 3 d

C.S.)………………………………………………………………………… .9,10 Tex. Code Crim. Proc. Ann Art. 103.001 (Lexis current through 2013 3d C.S.) ……… 7 Tex. Gov’t Code Ann. §508.145 (Lexi s current through 2013 3d C.S .)……………... 14 Appellate Court Decisions Adams v. State , 431 S.W.3d 832, 834 (Tex. App. -- Houston [ 14th Dist. ] 2014 , no

pet. ) …………………………………………………… .. ……………………... 7 , 9 Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App. Houston [ 14th Dist. ] 2002) … . ….1 3 Barrera v. State , 291 S.W.3d 515, 518 (Tex. App. -- Amarillo 2009, no pet.) …………6 Ewing v. California , 538 U.S. 11, 23, 123 S. Ct. 1 179, 155 L. Ed. 2d 108 (2003)…... 11 Johnson v. State , 423 S.W.3d 385 (Tex. Crim. App. 2014) …………………… ... … ..,7,8 Mayer v. State , 309 S.W.3 d 552, 555 - 56 (Tex. Crim. App. 2013) ……………… …2,4 - 6 Simmang v. State , No. 04 - 09 - 00563 - CR at 7 - 10, 2010 Tex. App. LEXIS 4332 (Tex.

App. -- San Antonio June 9, 2010, pet. ref’d) (mem. op., not designated for publication)…………………………………………………………………… ...14

v

STATEMENT

*7 OF THE CASE The Appellant was indicted for the offense of Assault Public Servant in Cause 66494 and Harassment of Public Servant in Cause 66495 by two separate indictments on November 17, 2011. ( C.R. 66494 at 5 ; C.R. 66495 at 5 ). Per a plea bargain ag reement, Appellant entered a plea of guilty to the charged offense s on April 16, 2012 and was ordered to serve a five - year term of deferred adjudication. ( C.R. 66494 at 6 - 7; C.R. 66495 at 6 - 7) .

On December 6, 2013, the State filed a motion to adjudicate guilt in each cause against Appellant alleging multiple violations of probation, including a new law violation of injury to a child . (C.R. 66494 at 14 - 16; C.R. 66495 at 14 - 16). On November 21, 2013, Appellant was also indicted in Cause 71937 for the fi rst - degree injury to a child allegation. (C.R. 71937 at 5).

Defendant entered a plea of guilty to the indictment and requested the trial court to sentence him contemporaneously with the pending motions to adjudicate guilt. (2 R.R. at 4, 8). On June 27, 2014, Appellant entered a plea of true to all of the allegations in the State’s motion to adjudicate guilt and proceeded to a hearing before the trial judge without an agreed recommendation. (C.R. 66494 at 17 - 18; C.R. 66495 17 - 18; R.R. at 4 - 5) .

In cause numbers 66494 and 66495, the trial court adjudicated Appellant guilty of the charged offenses and sentenced Appellant to 10 years confinement in the Texas Department of Criminal Justice. ( C.R. 66494 at 17 ; C.R. 66495 at 22 ). In cause

vi *8 71937, the trial court sentenced Appellant to 40 years confinement in the Texas Department of Criminal Justice. ( C.R. 71937 at 30).

As these three causes were tried together on punishment, Appellant presents his complaints on appeal in all three causes in this one brief.

STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument. vii

ISSUES PRESENTED

*9 Appellant ’ s First Point of Error: The evidence is insufficient to support the trial court’s order in Cause 66494 that Appellant reimburse Brazoria County Collections Department for the payment of counsel appointed on account of Appellant’s indigence. Appellant ’ s Second Point of Error:

There is no basis in the record to support the tria l court’s order in Cause 71937 that Appellant pay $294 in court costs in that cause . Appellant ’ s Third Point of Error:

If this court finds that the cost bill for the companion cause is a sufficient basis in the record to support the courts costs in Cause 71937, there is no basis to support a $70.00 Warrant/Bond fee in Cause 71937. Appellant ’ s Fourth Point of Error:

The forty - year prison sentence imposed by the trial court in Cause 71937 violated the Eighth Amendment prohibition against cruel and unusual punishment, as the sentence was grossly disproportionate to the crime.

viii

SUMMARY OF THE ARGUMENT

*10 The evidence is legally insufficient to support the trial court’s order that Appellant reimburse Brazoria County fo r the payment of Appellant’s court appointed counsel. Appellant was indigent at the time his trial counsel was appointed and remained indigent throughout the proceedings in this matter. As established by the Appellant’s affidavit, Appel lant had been unemployed for two years at the time of the trial court’s order. He had neither income nor assets.

There is no basis in the record in Cause 71937 to support the trial court’s imposition of $294.00 in court. If this court finds that there is a basis in the record for the imposition of court costs in Cause 71937, there is no basis in the record for the $70.00 Warrant / Bond fee in that cause.

The trial court’s forty - year prison sentence for first - degree injury to a child in Cause 71937 was grossly dispropo rtionate to the crime charged.

APPELLANT’S

*11 FIRST POINT OF ERROR The evidence is insufficient to support the trial court’s order in Cause 66494 that Appellant reimburse Brazoria County Collections Department for the payment of counsel appointed on account of Appellant’s indigence. Standard of Review and Applicable Law

An appellate court reviewing an order to repay court appointed attorney’s fees reviews the record to determine whether there is sufficient evidence to support the order . Mayer v. State , 309 S.W.3d 552, 555 - 56 (Tex. Crim. App. 2013). Evidentiary sufficiency “is measured by viewing all of the record evidence in the light most favorable to the verdict.” Id. at 557. Ordinarily, sufficiency of the evidence may be r aised for the first time on appeal, without an objection at the trial court level. Mayer , 309 S.W.3d at 556. A trial court’s authority to order that defendant repays attorney’s fees as court costs after a conviction stems from Tex. Code Crim. Proc. Ann . Art. 26.05(Lexis current through 2013 3d C.S.). Once a defendant has been found to be indigent, the defendant is “presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial status o ccurs.” Tex. Code Crim. Proc. Ann. Art. 26.04(p)(Lexis current through 2013 3d C.S.). The trial court may only order that a defendant repay his court appointed attorney’s fees,

[i]f the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of t he charges or, if convicted, as court costs the amount *12 that it finds the defendant is able to pay.

Tex. Code Crim. Proc. Ann. Art. 26.05(g)( Lexis current through 2013 3d C.S.). Relevant Facts

Appellant was appointed trial counsel, Mr. Perry Stevens, on December 16, 2013. (Supp. C . R . 66494 at 5). According to the notice of appointment, Appellant was in jail at the time of appointment. (Supp. C . R . 66494 at 5). Mr. Stevens withdrew as counsel, and new trial counsel, Mr. Robert Miller, was appointed on J anuary 17, 2014. (Supp C . R . 66494 at 12). After trial, t he trial court ordered Appellant to repay $2,850.00 in attorney’s fees in Cause 66494. (C . R . 66494 at 17).

There is no affidavit of indigence in the record in Cause 66494 that was completed prior to the appointment of trial counsel. While there is no affidavit of indigence in Cause 66494, there was one filed in Cause 71937. (Supp. C.R. 71937 at 19 - 23). The State’s motions to adjudicate guilt in Causes 66494 and 66495 were not filed until after t he initial appointment of Appellant’s trial counsel. Counsel was appointed on November 5, 2013. (Supp. C.R. 71937 at 6). The motions to adjudicate guilt were filed on November 21, 2013. (C.R. 66494 at 14 - 16; C.R. 66495 at 14 - 16 ). Trial counsel was the n appointed to the revocation cases as well. (Supp. C.R. 66494 at 5; Supp. C.R. 66495 at 4).

In this November 5 affidavit, Appellant stated that he was presently incarcerated. (Supp. C . R . 71937 at 19). He had been unemployed for one month after having on and off work at approximately $25 an hour for the previous eight months. (Supp. C . R . 71937 at 20). He had no income . (Supp. C . R . 71937 at 21). His monthly *13 expenditures were $240 for childcare , $450 for school, $55 for probation fees, a nd $27 every other month for other probation costs. (Supp. C . R . 71937 at 20). He had no property or other assets and lived with his in - laws. (Supp. C . R . 71937 at 21).

After being convicted, Appellant completed another affidavit of indigence . (C.R. 66 494 at 26 - 29). In the second affidavit, completed July 15, 2014, Appellant stated that he had been unemployed for two years, since November 2013. (C.R. 66494 at 35). He was incarcerated in the county jail. (C.R. 66494 at 26). He had no income, no asset s, and no debt. (C.R. 66494 at 27 - 28). He stated on the affidavit that he lived with his dad or Nadia Baldez, his girlfriend. The court found Appellant to be indigent and appointed the Appellant counsel on appeal. (C.R. 66494 at 24 - 25, 37). Analysis

The re is no evidence supporting the trial court’s order that Appellant repay his court appointed attorney’s fees . While in jail, Appellant was appointed trial counsel in this cause, and the related causes. (Supp. C.R. 66494 at 5,12; Supp. C.R. 66495 at 4,11; Supp. C.R. 71937 at 6,11). After Appellant was convicted, the trial court ordered that he repay attorney’s fees in the amount of $2, 850.00 . ( C.R. 66494 at 17 ).

The facts related to the application for a court appointed attorney and the trial court’s order to repay attorney’s fees are almost identical between Mayer v. State and Appellant’s case. See Mayer , 309 S.W.3d 552. In Mayer , the defendant filed an Affidavit of Financial Status including “a requ est for a court appointed attorney to represent him because he did not have the financial ability to hire his own attorney.” *14 Mayer , 309 S.W.3d at 554. The affidavit stated that he was unemployed and supporting himself on government benefits. Id. After he was convicted, the defendant filed a pro se notice of appeal and an affidavit of financial status again requesting appointed counsel. Id . There was no evidence in the record in Mayer that supported the trial court’s order that the defendant repay the court appointed attorney’s fees. Id. at 556.

Appellant was found to be indigent at the inception of this case and was appointed a court appointed attorney to represent him at trial on the State’s motion to adjudicate guilt . (Supp. C.R. 66494 at 5,12). Appellant stated in his initial affidavit of indigence that he was unemployed and had no income. (Supp. C . R . 71937 at 20 - 21). He had no property or other assets . (Supp. C . R . 71937 at 21).

After being convicted, Appellant completed another affidavit on July 15, 2014 . ( C.R. 66494 at 26 - 29 ). In the second affidavit , the Appellant stated that he had been unemployed for two years. ( C.R. 66494 at 35). He was incarcerate d in the county jail. ( C.R. 66494 at 26 ). By the time the trial court ordered th at Appellant repay his attorney’s fees, Appellant had been in jail for eight months waiting for the hearing on this matter. (3 R.R. at 58, 84). He had no income, no assets, and no debt. ( C.R. 66494 at 27 - 28 ). The court found the Appellant to be indigent and appointed the Appellant counsel on appeal. ( C.R. 66494 at 24 - 25, 37). As in Mayer , th ere is no evidence in the record to support the trial court’s order that Appellant repay his court appointed attorney’s fees.

*15 Appellant was found to be in digent in November 2013 , and is presumed to remain indigent. Tex. Code Crim. Proc. Ann. Art. 26.04(p). The trial court may only order a defendant to repay his court appointed attorney if “the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided.” Tex. Code Crim. Proc. Ann. Art. 26.05(g). A court’s finding that a defendant has such financial resources that would enable him to offset the cost of legal services prov ided must be supported by evidence in the record. Barrera v. State , 291 S.W.3d 515, 518 (Tex. App. -- Amarillo 2009 , no pet. ). There is no evidence in the record to support a finding that the Appellant has “financial resources that enable him to offset in part or in whole the costs of the legal services provided.” As such, the evidence supporting the court’s order that Appellant repay his is legally insufficient and has no basis in the record .

The court of appeals in Mayer reformed the trial court’s judgment to delete the paragraph ordering the defendant to repay attorney’s fees. Mayer v. State , 274 S.W.3d 898, 901 - 02 (Tex. App. Amarillo 2008, pet. granted.). The Court of Criminal Appeals found this to be the proper remed y. Mayer , 309 S.W.3d at 557.

The Appellants prays that this Court find that there is no evidence supporting the trial court’s order that the Appellant repay his court appointed attorney fees and reform the judgment to remove the order.

APPELLANT’S

*16 SECOND POINT OF ERROR There is no basis in the record to support the trial court’s order in Cause 71937 that Appellant pay $294 in court costs in that cause . Standard of Review and Applicable Law

A cost is not payable by the person charged with the cost until a written bill is produced or is ready to be produced, containing the items of cost, signed by the officer who charged the cost or the officer who is entitled to receive payment for the cost. Tex. Code Crim. Proc. Ann Art. 103.001 (Lexis current thro ugh 2013 3d C.S.). An order to pay a certain amount of court costs must be supported by evidence

in the record that was before the trial judge. Adams v. State , 431 S.W.3d 832, 834 (Tex. App. -- Houston [ 14th Dist. ] 2014 , no pet. ) . citing Johnson v. State , 423 S.W.3d 385 (Tex. Crim. App. 2014) . A reviewing court examines the record to determine whether there is “a basis for the cost” to support the trial court’s order. Id . at 835. Relevant Facts

The trial court conducted a consolidated punishment hearing on Causes 66494, 66495 and Cause 71937 on June 27, 2014. (3 R.R. at 4). The clerk’s record in 71937 does not contains a cost bill specific to that cause, but instead has a cost bill for Cause 66 495. (Supp. C.R. 71937 at 43).

The trial court entered a written judgment, in each of the three causes, each requiring Appellant to pay $294.00 in court cost. (C.R. 66494 at 17; C.R. 66495 at 22; *17 C.R. 71937 at 30). Additionally the trial court ordered t hat these court costs be drawn against the Appellant’s inmate trust fund. (Supp. C.R. 71937 at 34).

Appellant’s counsel specifically requested that the record on appeal be supplemented to include a bill of cost. (Supp. C.R. 71937 at 49). Analysis

At the time of writing of this brief, the there is no basis in the record to support that trial court’s order that Appellant pay $294 in court costs in Cause 71937. Appellant specifically requested that the record include a bill of cost . (Supp. C.R. 71937 at 49 ). The only bill of cost that is presently in the record in Cause 71937 is for Cause 66495. (Supp. C.R. 71937 at 43).

Appellant recognizes that this Court may order the clerk to further supplement the record with a correct cost bill. Johnson , 423 S.W.3d at 391. As the record stand s , at the time of this writing, there is no bill of cost related to Cause 71937 in the record. As court costs are “not payable by the person charged with the cost until a written bill is pro duced,” and no cost bill has been produced to the Ap pellant or this Court in Cause 71937, this Court should find that the Appellant is not responsible for the payment of court costs in Cause 71937. Appellant prays that this court reform the judgment in Cause 71937 to remove the assessed c ourt cost.

APPELLANT’S

*18 THIRD POINT OF ERROR If this court finds that the cost bill for the companion cause is a sufficient basis to support the courts costs in Cause 71937, there is no basis in the record to support a $70.00 Warrant/Bond fee in Cause 71937. Standard of Review and Applicable Law

An order to pay a certain amount of court costs must be supported by evidence in the record that was before the trial judge. Adams v. State , 431 S.W.3d at 834 . A r eviewing court examines the record to determine whether there is “a basis for the cost” to support the trial court’s order. Id . at 835.

There is an allowable $50.00 fee for the execution or processing of “ an issued arrest warrant, capias, or capias pro fi ne.” Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(2) ( Lexis current through 2013 3d C.S.) . Only a $5.00 fee is allowable where an officer has made a warrantless arrest. Tex. Code Cri m. Proc. Ann. Art. 102.011 (a)(1 ) . The statute also allows for a $10.00 fee “ for taking and approving a bond and, if necessary, returning the bond to the courthouse .” Tex. Code Cri m. Proc. Ann. Art. 102.011 (a)(5 ) . Relevant Facts

The bill of cost for Cause 66495 in the clerk’s record in Cause 71937 includes a Warrant/Bond fee in the amount of $70.00. (Supp. C . R . 71937 at 43). Appellant was arrested without a warrant in this cause. (Sealed C . R . 71937 at 33). He did not make bail in this cause and was in jail from the date of his ar rest until his hearing. (3 R.R. at *19 58, 84). Analysis

If this court finds that the cost bill for Cause 66495 is a sufficient basis to support the courts order that court cost be paid in Cause 71937, there is still no basis for an assessment of a $70.00 Warrant/ Bond fee in Cause 71937.

The cost bill in the record of Cause 71937, which is a cost bill for Cause 66495, includes a Warrant/Bond fee in the amount of $70.00. (Supp. C . R . 71937 at 43). The Code of Criminal Procedure allows for a $50.00 fee for the execution of an arrest warrant, capias or capias pro fine. Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(2) . Only $5.00 fee is allowed by statute where a defendant is arrested without a warrant, as was the case in Cause 71937. Tex. Code Crim. Proc. Ann. Art. 102.011 (a)(1) , (Sealed C . R . 71937 at 33). Also, as Appellant did not bail out of jail in this matter no fee for taking or approving a bond should have been assessed.

As Appellant was arrested without a warrant, and did not post bail, in Cause 71937, there is no basis in the record to support the imposition of a $70 Warrant / Bail fee. Appellant prays that this Court reform the judgment of the trial court to remove the $70 Warrant / Bail fee assessed as court cost in this cause.

APPELLANT’S

*20 FOURTH POINT OF ERROR The forty - year prison sentence imposed by the trial court in Cause 71937 violated the Eighth Amendment prohibition against cruel and unusual punishment, as the sentence was grossly disproportionate to the crime. Standard of Review and Applicable Law

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII The Eighth Amendment prohibition against cruel and unusual punishment includes “extreme sentences that are ‘grossly disproportionate’ to the crime.” Ewing v. California , 538 U.S. 11, 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003). Relevant Facts

Appellant was on deferred adjudication probation in cause number 66494 for the offense of Assault Public Servant, and on deferred adjudication probation in cause 66495 for Harassment of a Public Servant. (C.R. 66494 at 6 - 7; C.R. 66495 at 6 - 7)

In October 2013, Appellant was living with his Nadia and their daughter in Nadia’s m other’s home. (3 R.R. at 6 - 7). On October 29, 2013, Nadia drove Appellant to a “bad neighborhood” in Houston where Appellant left the car, disappeared, and purchased cocaine that he smoked on the way home. (3 R.R. at 20 - 21, 75 - 76).

When they returned home, Appellant assaulted Nadia . ( 3 R.R. at 9, 25 - 26). He then ran into the home and grabbed G.M. and ran down the stairs with the child. He tripped and fell down the stairs w ith the child. (3 R.R. at 11). Appellant said “She's *21 my daughter. She's not yours… If I can't have her, nobody can. She's mine.” (3 R.R. at 12). He then lifted the child up over his head and threw her on the tile floor. (3 R.R. at 12 - 13).

G.M. appeared to stop breathing and would not wake up. (3 R.R. at 13). She suffered skull fractures, internal bleeding, s welling and bruising. (3 R.R. at 40). She stayed in the hospital for two days and then was required to take anti - seizure medication. (3 R.R. at 40).

Appellant’s mo ther testified that Appellant suffers from hyperactivity, attention deficit disorder, a nd is bipolar. (3 R.R. at 43). She believed Appellant also struggled with depression. (3 R.R. at 45).

Appellant’s father testified that Appellant might have been using drugs since he was sixteen. (3 R.R. at 54). He testified that, for a while, Appe llant worked with him doing plumbing work. (3 R.R. at 57). Appellant’s father testified that there were times through Appellant’s life where Appellant would go from seeming fine to not being himself. (3 R.R. at 55, 57).

Appellant is a substance abuse r. Appellant testified that he used marijuana, once or twice a day, when he was in high school. (3 R.R. at 68, 70 - 71). In high school he also had a Xanax prescription which he abused. (3 R.R. at 71 - 73). He continued to be prescribed Xanax until his arr est in 2013. (3 R.R. at 73). He also started smoking crack cocaine after high school. (3 R.R. at 76).

On October 28, 2013, Appellant had his 90 pill Xanax prescription filled. (3 *22 R.R. at 73). By the end of the day, he had used almost all of them. (3 R.R. at 74). He testified that he had Nadia drive him to Houston that night to purchase crack cocaine. (3 R.R. at 75 - 76). Appellant did not remember most of what happened when he threw and injured G.M. (3 R.R. at 80).

Appellant has struggled with suicidal thoughts since he was in junior high. (3 R.R. at 102). He believes that his drug abuse a source of his criminal behavior. (3 R.R. at 81 - 82). The eight months he spent in jail waiting on his hearing was the longest he had been sober since high school. (3 R.R. at 84). He testified that he recognizes he has a problem and wants help. (3 R.R. at 83).

A motion for new trial was filed and presented to the trial court on the basis that the punishment assessed against A ppellant in Cause 71937 was grossly disproportionate to the offense . (C . R . 71937 at 42; 4 R.R. at 4). Analysis

Appellant’s punishment was grossly disproportionate the crime for which he was convicted and a violation of his Eighth Amendment right against cruel and unusual punishment.

Appellant recognizes that an analysis used by a number of courts to determine wh ether a sentence is grossly disproportionate to the offense requires the reviewing court to “consider (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.” Baldridge v. State, 77 S.W.3d 890 , 893 (Tex. App. -- Houston [ 14th Dist. ] 2002). Appellant recognizes that the *23 record is void of any evidence regarding similar crimes in the same jurisdiction or sentences from the same crime in other jurisdictions. Appellant also recognizes that at least one intermediate Texas court of appeals has specifically found that a forty year penitentiary sentence for first degree injury to a child is not violative of the Eighth Amendment. Simmang v. State , No. 04 - 09 - 00563 - CR at 7 - 10, 2010 Tex. App. LEXIS 4332 (T ex. App. -- San Antonio June 9, 2010, pet. ref’d) (mem. op., not designated for publication).

In Appellant’s case, the forty - year sentence is grossly disproportionate to the crime. The trial court specifically cited a desire to protect G.M. from Appellan t: I don't doubt one second that you love her. What I do doubt is that you don't have the skills to be a good father for her at this point in time in your life. There's more to being a father than enjoying the fun parts and playing with them. There's a who le lot more to it, and a lot of that means you have to adjust your lifestyle to raise them the right way. And until you can do that, you don't need to be in her life, especially if your lifestyle will hurt her. (3 R.R. at 109). [At] this point my job, I think, is very much to protect her. (3 R.R. at 110). Also, in the court’s presentence inve stigation, the child’s mother indicated that

she believed Appellant should serve some prison time, but that as the father of G.M., twenty years would be too long for him to be in prison. (Sealed C.R. 71937 at 16 - 17).

The trial court’s decision to punish Appellant for forty years in order to keep him away from G.M. is cruel and unusual. Appellant’s conviction for injury to a child is an offense for which he wi ll not become eligible for parole consideration until he has served at least twenty years in prison. Tex. Gov’t Code Ann. §508.145 (Lexis *24 current through 2013 3d C.S.). By the time Appellant is eligible to be considered for parole, his daughter will be t wenty - four years old.

A lesser sentence, considering the parole board’s discretion in determining whether an offender has been rehabilitated would have served the court’s purpose of protecting G.M. from Appellant until he was rehabilitated but would have still allowed Appellant’s participation in G.M.’s life if he had adjusted his lifestyle appropriately.

Appellant prays that this Court find that the forty - year prison sentence imposed against Appellant violated the Eighth Amendment and remand this matter to the trial court for a new hearing on punishment.

CONCLUSION AND PRAYER

Wheref ore, Appellant prays that this C ourt find that Appellant is indigent and was indigent when trial counsel was appointed to represent him and reform the judgment of the trial court to remove the order in Cause 66494 that Appellant repay Brazoria County for attorney’s fees for counsel appointed to Appellant.

Appellant also prays that this C ourt find that there is no basis in the record to support the court cost assessed in Cau se 71937 and reform the judgment in Cause 71937 to remove the assessed court costs.

Appellant further prays that this court find that his forty - years sentence is cruel and unusual punishment and remand this matter to the trial court for a new hearing on pu nishment. *25 Respectfully submitted, /s/ Joseph Kyle Verret Joseph Kyle Verret

THE LAW OFFICE OF KYLE VERRET, PLLC

Counsel for Appellant

TBN: 240429432 47

11200 Broadway, Suite 2743 Pearland, Texas 77584 Phone: 281 - 764 - 7071 Fax: 281 - 764 - 7071 Ema il: kyle@verretlaw.com

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Brief for Appellant was served on the Counsel for the Appellee, David Bosserman, at the Criminal District Attorney’s Office of Brazoria County, Texas, by service through electronic filing on this 6th day of February , 2015. /s/Joseph Kyle Verret Joseph Kyle Verret TBN: 2402932

CERTIFICATE OF WORD COUNT I do hereby certify that the total word c ount for this document 3,814 excluding those parts specifically excluded in Texas Rule of Appellat e Procedure 9.4(i)(1) which is less than 15,000 words allowed per Texas Rule of Appellate Procedure 9.4. /s/Joseph Kyle Verret Joseph Kyle Verret

TBN: 2402932

APPENDIX

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TEXAS FAIR DEFENSE ACT ROTATIONAL APPOINTMENT SYSTEM

*36 TEXAS FAIR DEFENSE ACT ROTATIONAL APPOINTMENT SYSTEM - - -l0 r;, -l0 r;,

FOR BRAZORIA COUNTY, TEXAS

FOR BRAZORIA COUNTY, TEXAS tJ j)\ \ LP-\ tJ j)\ \ LP-\ 0 \0 ct lbenise Damian, Court Administrator 0 \0 ct lbenise Damian, Court Administrator Iris Huerta, Indigent Defense Coordinator Iris Huerta, Indigent Defense Coordinator 111 E. Locust, Room 309 111 E. Locust, Room 309 111 E. Locust, Room 309 111 E. Locust, Room 309 Angleton, TX 77515 Angleton, TX 77515

Angleton, TX 77515 Angleton, TX 77515 979-864-1263 Phone 979-864-1263 Phone r. '\ r. '\ 979-864-1683 Phone 979-864-1683 Phone \td \td 979-864-1893 Fax 979-864-1893 Fax 979-864-1893 Fax 979-864-1893 Fax denised@brazoria-county.com denised@brazoria-county.com irish@brazoria-county.com irish@brazoria-county.com .,,'"

.,,'"

f C;; f C;;

NOTICE OF APPOINTMENT AND CONFIRMATION

NOTICE OF APPOINTMENT AND CONFIRMATION rdlJi)2\}' rdlJi)2\}' == == DATE ATTORNEY APPOINTED: 12/16/13 DATE ATTORNEY APPOINTED: 12/16/13 ::. ::. ATTORNEY INFORMATION: ATTORNEY INFORMATION: v v > > Name: STEVENS, PERRY Name: STEVENS, PERRY Phone: (979) 848-1111 Phone: (979) 848-1111 Address: 603 E MULBERRY Address: 603 E MULBERRY Fax: (979) 849-9398 Fax: (979) 849-9398

ANGLETON, TX 77515-0000

ANGLETON, TX 77515-0000 In accordance with the Local Rules of Administration implementing the Texas Fair Defense Act for Brazoria In accordance with the Local Rules of Administration implementing the Texas Fair Defense Act for Brazoria County, Texas ("BCTFDA"), the defendant has been appointed the attorney named above. County, Texas ("BCTFDA"), the defendant has been appointed the attorney named above. The appointed attorney is required to provide the Court with written confirmation that the attorney made reasonable The appointed attorney is required to provide the Court with written confirmation that the attorney made reasonable efforts to contact the defendant by the end of the first working day after the date of the appointment and that the efforts to contact the defendant by the end of the first working day after the date of the appointment and that the attorney personally interviewed the defendant no later than fifteen (I5) days after Notice of Appointment. The attorney personally interviewed the defendant no later than fifteen (I5) days after Notice of Appointment. The confirmation must be filed with the Verification Officer no later than three (3) days before my first court appearance confirmation must be filed with the Verification Officer no later than three (3) days before my first court appearance for this case. If you have any questions, you may contact the Court Administrator or the Verification Officer. for this case. If you have any questions, you may contact the Court Administrator or the Verification Officer.

HEARING INFORMATION MTNTO MTNTO

ADJUDICATE GUILT

ADJUDICATE GUILT

DEFENDANT INFORMATION' . DEFENDANT INFORMATION' . Name: MOLNOSKEY, RYAN VICTOR Name: MOLNOSKEY, RYAN VICTOR Cause No: 66495 Cause No: 66495 Address: Address: PEARLAND, TX 77581-4495 PEARLAND, TX 77581-4495 Court: 149TH DISTRICT COURT Court: 149TH DISTRICT COURT Phone: Phone: Case Information: MOTION TO ADJUDICATE GUILT; F3 Case Information: MOTION TO ADJUDICATE GUILT; F3 Defendant is in iail: YES Defendant is in iail: YES Refiled: TRUE Refiled: TRUE Docket Control Order Attached: NO Docket Control Order Attached: NO

ACKNOWLEDGMENT:

ACKNOWLEDGMENT: o I made reasonable efforts to contact defendant before the end of the first business day. o I made reasonable efforts to contact defendant before the end of the first business day. o I interviewed the defendant no later than fifteen (15) days after date of my appointment. o I interviewed the defendant no later than fifteen (15) days after date of my appointment. Date Attorney Signature Attorney Signature Date

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