Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 9/18/2015 9:51:03 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00035-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 9/18/2015 9:51:03 AM DEBBIE AUTREY CLERK NO. 06 – 08 – 00080 – CR IN THE SIXTH DISTRICT COURT OF APPEALS TEXARKANA, TEXAS CEDRIC BERNARD CARLDWELL Appellant, v.
THE STATE OF TEXAS Appellee On appeal from the 124 TH District Court, Gregg County, Texas Trial Court Case No. 42773-B BRIEF OF THE STATE OF TEXAS – ORAL ARGUMENT NOT REQUESTED – CARL DORROUGH GREGG COUNTY DISTRICT ATTORNEY Zan Colson Brown Texas Bar No. 03205900 Assistant District Attorney Gregg County, Texas 101 East Methvin St., Suite 333 Longview, Texas 75601 Telephone: (903) 236–8440 Facsimile: (903) 236–3701 *2 TABLE OF CONTENTS INDEX OF AUTHORITIES ................................................................................... 2
STATEMENT OF FACTS ...................................................................................... 3
SUMMARY OF THE ARGUMENT ..................................................................... 9
ARGUMENT ..........................................................................................................10
1) The Appellant failed to preserve error. ..........................................................10
2) Punishment assessed was neither cruel nor unusual. ....................................11
CONCLUSION AND PRAYER ...........................................................................16
CERTIFICATE OF SERVICE ............................................................................17
CERTIFICATE OF COMPLIANCE ..................................................................17
INDEX OF AUTHORITIES Federal Cases
Harmelin v. Michigan ,
501 U.S. 957, 111 S.Ct. 2680, 115 L. Ed. 2d 836 (1991) 13, 14
McGruder v. Puckett ,
954 F.2d 313 (5th Cir.) 14
Solem v. Helm
463 U.S. 277, 103 S.Ct. 3001, 77 L. Ed. 2d 637 (1983) 13
State Cases
Fierro v. State ,
706 S.W.2d 310 (Tex. Crim. App. 1986) 11
Harris v. State ,
656 S.W.2d 481 (Tex. Crim. App. 1983) 12
Henderson v. State ,
617 S.W.2d 697 (Tex. Crim. App. 1981) 11
Hookie v. State,
136 S.W. 3d, 671 (Tex. App. –Texarkana 2004, no pet.) 10
Jackson v. State,
989 S.W.3d 845 (Tex. App.—Texarkana 1999, no pet.) 10, 12
McNew v. State ,
608 S.W.2d 166 (Tex. Crim. App. 1978) 12
Moore v. State ,
54 S.W.3d 529 (Tex. App. – Fort Worth 2001) 12
Price v. State ,
35 S. W. 3d, 136 (Tex. App.--Waco 2000) 12
Williams v. Scott,
1994 U.S. App. LEXIS 41605 (5th Cir. Tex. Oct. 26, 1994) 14
State Statutes
Tex. Penal Code Ann. § 12.32 and 12.42 (West) 12
STATEMENT OF FACTS Cedric Carldwell was charged, on July 11, 2013, with shooting Huey Lee
Gray on April 14, 2013. See indictment, CR 24. When apprehended, he admitted
the crime, but claimed self-defense because Gray allegedly called him names,
threatened to choke him, spit in his face, and reached in his clothing as if to draw a
weapon. See offense report, SX2 at 30. At that point, Carldwell told Detective
Cheatham that he had shot Gray. Id.
The event was witnessed by several people who stated that Gray was not
reaching for a weapon; his arms were at his sides and he had just asked Carldwell,
“What you gonna do, shoot me?” See offense report, SX2 at 29.
Carldwell eventually pleaded guilty and asked the judge to set his sentence
without the benefit of a plea agreement. See judgment, CR 25-29. After a pre-
sentence investigation report was delivered to the Court, Carldwell’s counsel
argued that by pleading “guilty,” he had saved the victim’s family the anxiety, and
the “emotional roller coaster” of a trial. 4 RR 20. He did not, however, ask for
leniency on that basis. He said that Carldwell was trusting the judgment of the
court and leaving the issue of sentencing in the judge’s “very capable hands,”
without asking for a specific term of years. 4 RR 23. The prosecutor asked for the
maximum sentence, or “life.” 4 RR 27.
Before he accepted the plea of “guilty,” the judge asked the defendant these
questions regarding the range of punishment:
THE COURT: Now, the offense of murder is a first degree
felony. But with the enhancement of a prior felony, it makes it a
first degree enhanced. The range of punishment for this offense
is from 15 years in prison up to 99 years or life in prison. Any --
and a fine of up to $10,000. Any sentence I hand down on the
day of sentencing will have to fall within that range. Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Also, the offense of murder is what is considered
an aggravated offense. What that means is that any prison
sentence you receive, you will have to serve at least one-half of
that sentence or 30 years, whichever is less. Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: So if I impose a 40-year sentence, you'd have to
serve at least 20 years before being eligible for parole. If I
impose a sentence of 60 years or more, you will have to serve
at least 30 years before being eligible for parole. Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And eligibility for parole does not guarantee that
parole will be granted. As I said, this case comes before me on
what is called an open plea. That means there's no plea
agreement. I'm going to listen to any and all testimony; I'm
going to review all of the exhibits that are going to be
introduced into evidence; I will order what's called a
presentence investigation. In that, you will meet with the
probation officer and go over your criminal history, facts and
other circumstances concerning your past history
circumstances.
I'll consider all of that. I'll consider any and all testimony in the
punishment phase. I'll listen to the arguments of the State's
attorney and your attorney.
But I'm not bound by any of those. The only thing I'm bound by
is that range of punishment I just gave you, 15 to 99 years or
life. Do you understand that?
THE DEFENDANT: Yes, sir.
3 RR 9-10.
After due consideration, the judge pronounced his ruling:
THE COURT: . . . I have looked at this case and I have
considered the entire range of punishment.
I've read the offense report on a couple of occasions,
looked at all of the exhibits, considered the testimony
that's been given today. And having read the PSI,
hopefully I have as clear a picture of who Huey Gray was
as I do of who Cedric Bernard Carldwell is.
The facts and circumstances of that night [29] indicate
two individuals who were drinking, intoxicated probably. I
don't -- and the facts don't suggest that you set out that
night premeditated to do anybody harm. That does -- that
weighs in your favor.
However, what weighs against you right away on that is
the fact that you were carrying a firearm. As a five-time
convicted felon, you weren't supposed to have a firearm,
so that weighs against you. So that's a factor that I
considered.
I considered the testimony of who the victim was, the --
whether -- whether the person is somebody who has
contributed to society or somebody who was a drain on
society. Every life still needs to be valuable in the eyes of
the law.
Mr. Carldwell, the factors that weigh against you,
however, is your significant criminal history. I have an
individual who was convicted of misdemeanor assault
back in '87, that in and of itself was not a big deal; then a
possession of prohibited weapon in 1990, 5-year
sentence which you didn't even serve basically a year of.
And then we get to the more serious offenses. You have
the theft conviction out of Smith County; you have a theft
conviction out of Gregg County. And then the one that
causes the Court some of the most concern, an
attempted murder case here in Gregg County in 1992,
with a deadly [30] weapon. Then the attempted
kidnapping in 2007 that you got a two-year state jail
sentence. After getting out of there, the violence
continues with an assault causing bodily injury. And here
we are on this case.
And then when you look at the facts of the case, the
offense report, the scientific evidence, witnesses state
that Mr. Gray just held out his hands and said, "What are
you going to do, shoot me?" Yes, you may have been
arguing. But then, looking at the autopsy report, you shot
at least four times, if not five; at least three of those being
in the back.
If you felt threatened, maybe one of them would have
been possibly justified; but four to five shots, at least three
in the back, that calls for the high end of punishment.
Decisions like this are not something that a Court
relishes. I have sat in the back in my office praying and
looking over everything of what is the appropriate
sentence. I have to look at what I think a jury would do,
but by the same token, what in my opinion is justice.
At some point we have to say enough is enough. This is
at least your third crime of violence, at least your third
with a firearm. Sometimes doing justice is doing the hard
thing.
This is not a sentence that I pronounce very [31] often. I
don't like doing it. But I believe under the facts and
circumstances of this case -- yes, you pled "guilty" in front
of me and saved the taxpayers money and time -- but this
is one of those cases, when I look at everything together,
that still the right thing to do, as hard as it is, is to
sentence you to life in prison with a deadly weapon
finding.
Mr. Carldwell, I don't believe that there's any other
sentence that would be appropriate under the facts and
circumstances of this case. I know that sentence does not
bring back Mr. Gray, and I'm sure it does not make your
family happy, but it is in my opinion what justice is under
the facts and circumstances of this case.
That is the sentence of the Court.
4 RR 28-31.
After that ruling, the court and defense counsel discussed appellate rights
briefly and the court heard an impact statement. 4 RR 32-33. There was, however,
no objection to the ruling of the court, and even though Carldwell filed a motion
for new trial, he did not address the issue of a disproportionate sentence. See
Motion for New Trial, CR 30. A hearing on the motion was set for January 16,
2015, but no record exists that the hearing was held. CR 32. Volume 4 of the
reporter’s record is a transcription of the Sentencing Hearing, Volume 5 is a
collection of the exhibits and Volume 6 is a collection of the sealed exhibits
(criminal history of witnesses and victim).
Following the entry of the ruling on November 21, 2014, Carldwell filed a motion
for new trial on December 19, 2014. CR 26-31. His notice of appeal was filed February
17, 2015. CR 39-40.
SUMMARY OF THE ARGUMENT 1) The Appellant has failed to preserve error.
2) The punishment assessed was neither cruel nor unusual.
A. Texas has well-established law that if a sentence is within the statutory limits for
the crime committed, it is not excessive.
B. Federal sentencing guidelines do not control state court sentences.
C. Three factors are considered for disproportionality, with first being threshold:
(1) the gravity of the offense relative to the harshness of the penalty,
(2) the sentences imposed for other crimes in the jurisdiction, and
(3) the sentences imposed for the same crime in other jurisdictions.
D. Appellant received consideration for his guilty plea.
(1) Original indictment alleged two prior offenses.
(2) Amended indictment alleged only one.
ARGUMENT The Appellant failed to preserve error. If the court considers his argument on the
merits, the trial court correctly determined that Appellant pled “guilty” to the charges
alleged in the indictment, and “true” to the enhancement paragraph, and after
considering Carldwell’s extensive criminal history, he properly sentenced him to life in
prison for murder, and made a finding that he had used a deadly weapon. 4 RR 31.
1) The Appellant failed to preserve error.
To preserve a complaint for review, an appellant must have presented the
trial court with a timely request, objection, or motion stating the specific grounds
for the ruling ordered. TX R APP Rule 33.1 (a) (1) (A). Carldwell failed to object
when the trial court announced the sentence assessed by the jury. Hence, he
preserved nothing for review. See Hookie v. State, 136 S.W. 3d, 671 (Tex. App. –
Texarkana 2004, no pet.) Jackson v. State, 989 S.W.3d 845 (Tex. App.—
Texarkana 1999) Although Carldwell moved for a new trial and set a hearing on
that motion, the record does not show that a hearing was held or that the motion
was granted. Therefore, the motion is presumed to have been overruled by
operation of law. Furthermore, that motion for new trial failed to raise any specific
complaint regarding the sentence imposed. A general objection preserves nothing
for review and is insufficient to apprise the trial court of the complaint urged.
Fierro v. State , 706 S.W.2d 310, 318 (Tex. Crim. App. 1986); Henderson v. State ,
617 S.W.2d 697, 698 (Tex. Crim. App. 1981).
Carldwell’s attorney did not ask for a specific sentence; instead, he
placed the decision into the trial court’s “very capable hands.” He did mention
that Carldwell’s voluntary plea of guilty saved the court time and money, and
spared the families the hardship of a trial, but did not suggest a lesser sentence
on that basis. 4 RR 19-20. The State asked for a life sentence, based primarily
on his violent criminal history. 4 RR 27. After the judge reluctantly
sentenced him to life in prison, Carldwell did not preserve error by objecting in
any way—neither at the time nor in his motion for new trial--to the severity of
his sentence. 4 RR 27-31. Cardwell’s sole issue should therefore be rejected
and the sentence affirmed.
2) Punishment assessed was neither cruel nor unusual.
Even if he had preserved error, his sentence was not excessive.
A. Texas has well-established law that if a sentence is within the statutory
limits for the crime committed, it is not excessive.
The punishment imposed by the judge was within the range allowed by a valid law
for the offense charged, and is therefore not a violation of the prohibition against cruel,
unusual punishment under the U. S. and Texas Constitutions, as alleged by Appellant.
Texas has long held that any punishment assessed within the range authorized by statute
is not excessive. See, e.g. Harris v. State , 656 S.W.2d 481, 486 (Tex. Crim. App. 1983);
Price v. State , 35 S. W. 3d, 136,144 (Tex. App.--Waco 2000); Moore v. State , 54 S.W.3d
529 (Tex. App. – Fort Worth 2001); McNew v. State , 608 S.W.2d 166,174 (Tex. Crim.
App. 1978); Jackson v. State , 989 S.W.2d 842, 846 (Tex. App. 1999).
The punishment imposed in the instant case was life in prison, clearly within the
range of “life or for a term of years, not more than 99 years and not less than 15 years.”
Tex. Penal Code § 12.32 and 12.42 (West). This conviction was for murder, a first degree
felony, enhanced by a 1991 conviction for possession of a prohibited weapon, a second
degree felony.
B. Federal sentencing guidelines do not control state court sentences.
The federal sentencing guidelines relied on by Carldwell are not applicable to this
case; this murder was charged in a state court as an offense against the State of Texas, not
in federal court and not as a federal offense. Carldwell’s counsel has offered no binding
authority for his claim that the sentence was cruel and unusual, or even for his claim that
the federal sentencing guidelines should be applied in a state court.
C. A reviewing court should three factors for disproportionality, with
second and third to be considered only if the court finds gross disproportionality in the first:
(1) the gravity of the offense relative to the harshness of the penalty,
(2) the sentences imposed for other crimes in the jurisdiction, and (3) the sentences imposed for the same crime in other jurisdictions.
A claim under the Eighth Amendment is reviewed in a three-part process.
Solem v. Helm 463 U.S. 277, 103 S.Ct. 3001, 77 L. Ed. 2d 637 (1983). The S olem
Court overturned, as a violation of the Eighth Amendment, defendant's sentence of
life imprisonment without parole. Solem was convicted for writing a bad check for
$100. His prior convictions were for third-degree burglary, false pretenses, grand
larceny, and driving while intoxicated, all of which, the Court noted, "were all
relatively minor. All were nonviolent and none was a crime against a person." Id .
at 103 S. Ct. 3013.
The Solem Court identified three factors to consider in a review of
proportionality of a sentence: (1) the gravity of the offense relative to the harshness
of the penalty, (2) the sentences imposed for other crimes in the jurisdiction, and
(3) the sentences imposed for the same crime in other jurisdictions. Id. at 103 S. Ct.
3011.
“Solem must now be filtered through the Court's most recent and, indeed,
most fractured decision on proportionality, Harmelin v. Michigan , 501 U.S. 957,
111 S.Ct. 2680, 115 L. Ed. 2d 836 (1991).” Williams v. Scott, 1994 U.S. App. LEXIS
41605 (5th Cir. Tex. Oct. 26, 1994), citing McGruder v. Puckett , 954 F.2d 313, 315
(5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992).
In Harmelin, the defendant appealed his mandatory life sentence without
parole for possession of more than 650 grams of cocaine. Five Justices held that
the sentence was constitutional, but those five could not agree on the grounds. In
McGruder , the Fifth Circuit Court drew the following conclusion:
By applying a head-count analysis, we find that seven members of the
Court [in Harmelin ] supported a continued Eighth Amendment guaranty
against disproportional sentences. Only four justices, however,
supported the continued application of all three factors in Solem , and
five justices rejected it. Thus, this much is clear:
disproportionality survives; Solem does not."
McGruder, 954 F.2d at 316.
According to Justice Kennedy’s concurrence in Harmelin, a reviewing court
must consider the second and third Solem factors only if they first conclude that the
sentence was “grossly disproportionate” to his offense. Harmelin, 111 S. Ct. at
2707 (Kennedy, J., concurring).
In the present case, Carldwell was charged with murder. His victim had spit
in Carldwell’s face; Carldwell took out a gun; the victim held his hands out and
asked, “What are you gonna to do, shoot me?” Cardwell then fired several shots at
his victim, at least three of which entered his back and the victim died soon after
arriving at the hospital.
This murder cannot be called a minor, nonviolent, or victimless crime, as the
defendant claimed in Solem. Additionally, Carldwell had been convicted of several
prior felonies, not just the one jurisdictional prior left in the amended indictment.
As recited in the prosecutor’s summation, Cardwell had the following convictions:
carrying a prohibited weapon, theft of property, attempted murder, felony theft,
and attempted kidnapping. SX 4-SX 12; 4 RR 24. The judge then summarized the
more serious ones as follows: theft in Smith County; theft in Gregg County;
attempted murder in Gregg County in 1992, with a deadly weapon; attempted
kidnapping in 2007; and assault causing bodily injury. 4 RR 29-30.
The senselessness of this crime, plus the increasing violence of his criminal
history, make it obvious that this punishment fit the crime. Appellant cannot make
it past the threshold question: Was the sentence grossly disproportionate to the
offense? No. It is therefore unnecessary to address the second and third factors.
E. Appellant received consideration for his guilty plea.
(1) The original indictment alleged two prior offenses. (2) The amended indictment alleged only one.
Appellant claims that he received no benefit for accepting responsibility, waiving
a jury trial and pleading guilty. (See Appellant’s brief at 4). To the contrary, the
amended indictment shows that he was first charged with two jurisdictional prior
felonies, but that the State dropped the claim of a second prior felony, allowing him to
face a punishment range with a minimum of 15 years instead of 25 years.
CONCLUSION AND PRAYER In conclusion, the Appellant has offered as his only argument—not
preserved—that the Court erred in giving a life sentence. A state district court is
not bound by the federal sentencing guidelines he cites. For Carldwell’s pleading
guilty and not forcing the State to meet its burden of proof in front of a jury, the
State agreed to a lower minimum sentence. But with his long record of
increasingly violent crimes, Carldwell deserved the maximum sentence he got. His
offense was violent with little or no provocation; the sentence of life was not at all
disproportionate. The State prays that this Court deny Appellant’s point of error and
affirm the conviction and sentence.
Respectfully Submitted, /s/ Zan Colson Brown Zan Colson Brown Texas Bar No. 03205900 Assistant District Attorney 101 East Methvin St., Suite 333 Longview, TX 75601 Telephone: (903) 236–8440 Facsimile: (903) 236–3701 *18 CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel of record by e-filing to
Clement Dunn
140 East Tyler Street, Suite 240
Longview, Texas 75601
clementdunn@aol.com
this 17 th day of September, 2015.
/s/ Zan Colson Brown_ Zan Colson Brown Assistant District Attorney CERTIFICATE OF COMPLIANCE I certify that the foregoing document complies with Texas Rules of
Appellate Procedure, Rule 9 (2015) regarding length of documents, in that
exclusive of caption, identify of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix, it
consists of 3,112 words.
/s/ Zan Colson Brown Zan Colson Brown Assistant Criminal District Attorney