Case Information

*1 PD-1674-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/28/2015 11:45:34 AM Accepted 12/28/2015 2:22:15 PM NO. __________________ ABEL ACOSTA CLERK TO THE COURT OF CRIMINAL APPEALS OF TEXAS DEMARCUS ANTONIO TAYLOR, Appellant v.

The State of Texas, Appellee *************** APPELLANT’S PETITION FOR DISCRETIONARY REVIEW *************** FROM THE COURT OF APPEALS FIFTH APPELLATE DISTRICT OF TEXAS DALLAS, TEXAS

NO. 05-15-00567-CR DALLAS COUNTY

TRIAL COURT NO. F1457392 R. Scott Walker STATE BAR # 24004972 222 W. Exchange Avenue Fort Worth, TX 76164 (817) 478-9999 (817) 977-0163 FACSIMILE Attorney for Appellant ORAL ARGUMENT NOT REQUESTED 1

TABLE OF CONTENTS PAGE TABLE OF CONTENTS. . . . . . . . . . . . . . . . 2 IDENTITY OF TRIAL JUDGE PARTIES AND COUNSEL . . 3 INDEX OF AUTHORITIES . . . . . . . . . . . . . . 4 STATEMENT DECLINING ORAL ARGUMENT . . . . . . . 5 STATEMENT OF THE CASE . . . . . . . . . . . . . . 5 STATEMENT OF PROCEDURAL HISTORY OF THE CASE . . 6 GROUNDS FOR REVIEW . . . . . . . . . . . . . . 6 QUESTIONS FOR REVIEW (Failing to bring a

disproportionate sentence complaint before the trial court is not waiver.). . . . . . . . . . . 6 ARGUMENT . . . . . . . . . . . . . . . . . . . . 7 PRAYER . . . . . . . . . . . . . . . . . . . . . 10 CERTIFICATE OF SERVICE . . . . . . . . . . . . . 11 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . 12

IDENTITY OF TRIAL JUDGE,PARTIES AND COUNSEL The following is a complete list of the trial judge and all parties, as well as the names and addresses of all counsel.

Trial Judge: Honorable Paul Banner Appellant: Demarcus Antonio Taylor Trial Counsel: Carlton Hughes

Attorney at Law 6060 North Central Expressway, Suite 560 Dallas, Texas 75206 Appellate R. Scott Walker

Attorney for Appellant: Attorney at Law

222 W. Exchange Avenue Fort Worth, Texas 76164 Appellee: The State of Texas Trial Attornys for Andrew Novak and Ms.

Appellee: Janie Kunnathusseril

Dallas County Assistant District Attorney 133 North Riverfront Blvd., LB-19 Dallas, Texas 75207 Appellate Attorney for Susan Hawk

Appellee: Dallas County

District Attorney 133 North Riverfront Blvd., LB-19 Dallas, Texas 75207

INDEX OF AUTHORITIES CASES

Ex parte Beck,

922 S.W.2d 181 (Tex.Crim.App. 1996) . . . . 7 Ex parte McIver,

586 S.W.2d 851 (Tex.Crim.App. 1979) . . . . 7 Noland v. State,

264 S.W.3d 144 (Tex.App.-—Houston [1 st Dist.] 2007) . . . . . . . . . . . . . . . . . . . 7 McGruder v. Puckett,

954 F2d 313, (5 th Cir. cert. denied) . . . . 9 Wynn v. State,

219 S.W.3d 54 (Tex.App.--Houston [1 st dist] 2006) . . . . . . . . . . . . . . . . . . . 7 STATUTES

Texas Rules of Appellate Procedure,

66.3(b) . . . . . . . . . . . . . . . . . . 6 *5 All references to Texas statutes, rules, etc.

are references to the latest edition published by West Publishing Company, unless otherwise

indicated.

DEMARCUS ANTONIO TAYLOR, Appellant

V.

THE STATE OF TEXAS, Appellee

************ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW ************

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT DECLINING ORAL ARGUMENT Oral argument of this case is not requested on behalf of Appellant.

STATEMENT OF THE CASE This appeal has resulted from a criminal prosecution for possession of a controlled

substance with intent to deliver. The maximum penalty for the charge is 99 years or life in prison. Attorney Carlton Hughes, of Dallas, Texas represented Mr. Taylor on the charge. On April 22, 2015, appellant pled not guilty to the

allegations. (R.R. Vol. 3, p. 12). After evidence *6 was presented, the jury found the defendant guilty of the charge, found the allegation of a deadly weapon to be true, and found the allegation that the offense was committed in a drug-free zone to be true. (R.R. Vol. 4, p. 90). On April 23, 2015, after evidence was presented, the jury assessed punishment at thirty years confinement.

(R.R. Vol.5, p. 120).

STATEMENT OF PROCEDURAL HISTORY OF THE CASE The Court of Appeals rendered its decision and delivered its written memorandum opinion on

Novenber 25, 2015. The deadline for filing a Petition for Discretionary Review is December 25, 2015.

GROUNDS FOR REVIEW Texas Rule of Appellate Procedure 66.3(b): The Court of Appeals has decided an important question of State law which should be settled by the Court of Criminal Appeals.

QUESTION FOR REVIEW Failing to bring a disproportionate sentence complaint before the trial court is not waiver because such a sentence is an illegal sentence and *7 is, therefore, void, and a void sentence can be brought up for the first time on appeal.

ARGUMENT

Failing to bring a disproportionate sentence complaint before the trial court is not waiver.

The Court of Appeals held that a defendant waives the right to appeal on a disproportionate sentence complaint unless he objects to the disproportionate sentence at the trial court or complains in a motion for new trial. The First District of Houston has agreed. Noland v. State, 264 S.W.3d 144, 152 (Tex.App.--Houston [1 st Dist.] 2007, pet.

Ref’d), Wynn v. State, 219 S.W.3d 54, 61 (Tex.App.- -Houston [1 st Dist.] 2006, no pet.). However, these holdings should be overturned.

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 *8 that an illegal sentence is one that 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 the Eighth Amendment to the U.S. Constitution. Any sentence that violates the U.S.Constition is certainly an illegal sentence. After all, the U.S.

Constitution is the supreme law of the land.

Therefore, any sentence that violates the U.S.

Constitution is also void, and the complaint should be reviewable when brought for the first time on appeal. Any cases holding otherwise should be overruled.

Furthermore, there are practicality concerns with holding that failing to bring a proportionality complaint before the trial court is waiver. When a trial judge pronounces a sentence, the trial is then over. It doesn’t make sense to require an objection after the trial is over. Furthermore, how can a defendant be expected to be *9 ready to present evidence as to proportionality as soon as the sentence is pronounced?

Requiring a proportionality complaint in a motion for new trial would also be problematic.

There are time restraints involved in a motion for new trial. Rarely is the reporter’s record of the trial prepared for use at a hearing on a motion for new trial. A reporter’s record is usually necessary to develop a claim of proportionality.

In order to win a proportionality complaint, a defendant must show that his sentence is disproportionate to other similar crimes in the jurisdiction and other jurisdictions. McGruder v.

Puckett, 954 F.2d 313, 316 (5 th Cir.), cert. denied.

It would be just short of impossible to compile sufficient evidence of the average sentences for similar crimes in Texas and in other jurisdictions.

Compiling this kind of evidence is nothing short of monumental. After all, the analysis requires a comparison of similar criminal acts which lead to similar criminal charges, not just similar criminal charges. The actual actions of the defendants must *10 be compared, not merely cases involving the same statutory charge. Therefore, it could be that every case used as a comparison case must be examined to see if the criminal actions of that particular defendant was similar to the criminal actions of the appellant. Again, compiling this kind of evidence during the short time in which a defendant has to prepare for a hearing on a motion for new trial would be impossible.

The holding of the Court of Appeals’ opinion, in actuality, obliterates the constitutional right to proportionate sentencing. When appellate courts create rules which make it impossible to avail oneself to constitutional guarantees, the courts are in effect taking away those guarantees. Again, the line of cases that require an objection to proportionality or a complaint in a motion for new trial should be overturned.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Demarcus Antonio Taylor, Appellant, prays that this Petition for Discretionary Review be granted; that this case *11 be submitted to the Court; that the Court of Appeals’ decision be reversed and for such other relief for which he shows himself entitled.

Respectfully Submitted, s/Scott Walker By: Scott Walker 222 W. Exchange Avenue Fort Worth, Texass 76164 (817) 478-9999 (817) 977-0163 Fax Attorney for Appellant 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 25 h day of December, 2015.

s/Scott Walker Scott Walker *12 CERTIFICATE OF COMPLIANCE I certify that this document copmplies with the length requirements as set forth by the Texas Rules of Appellate Procedure in that this document contains 1634 words, and that the document is in 14 point type.

s/Scott Walker Scott Walker *13 APPENDIX