ACCEPTED 13-15-00374-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 9/15/2015 4:33:27 PM Dorian E. Ramirez CLERK 13-15-00374-CR CAUSES 13-15-00374-CR IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT

CORPUS CHRISTI, TEXAS VINCENT ORISBEL BARRERA, APPELLANT

VS. THE STATE OF TEXAS, APPELLEE

APPELLANT’S BRIEF Trial Cause 14-9-9313 Jackson Co. District Court

Submitted by W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659 ORAL ARGUMENT NOT REQUESTED

Appellant was represented at trial by Brenna Crane, Attorney at Law, 302 West Forrest St., Victoria, TX 77901. Appellant is represented on appeal by W. A. (Bill) White, Attorney at Law, POB 7422, Victoria, TX 77903-7422. During trial, appellant was a resident of Jackson County, Texas. Appellant is currently incarcerated in IDTDCJ.

The State was represented at trial by Robert E. Bell, D.A., of the Jackson County District Attorney’s Office, 115 W. Main Street, Room 205, Edna, TX 77957. Appellant anticipates that Jim Vollers, Attorney at Law, 2201 Westover Road, Austin, TX 78703, will handle the State’s reply brief in this cause.

Page Index of Authorities 4 Appellant’s Brief 5 Statement of Case and Statement of Facts 5 Issue Presented 6 Summary of Argument 6 Argument 6 Sole Issue 6 Prayer 8 Certificate of Service 9 Certificate of Compliance 9

Cases Page Coker v. Georgia, 433 U.S. 584 (1977) 8 Solem v. Helm, 463 U.S. 277 (1983) 8 Trop v. Dulles, 356 U.S. 86 (1958) 8 Weems v. United States, 217 U.S. 349 (1910) 7 Constitutional Provisions U.S. Const. amend VIII 8 CAUSE 13-15-00374-CR Trial Cause 14-9-9313

through counsel, W. A. (BILL) WHITE, Attorney at Law, showing:

Appellant was indicted in September 2014 for tampering with physical evidence, a third degree felony. The indictment alleged four prior felony convictions in enhancement paragraphs, making the offense that of habitual felon (25 to 99 years or life in IDTDCJ). The indicted crime was alleged to have occurred on or about 7/24/14 in Jackson County, Texas.

Appellant, with counsel, pled “not guilty” to his indictment without plea agreement on 7/15/15 in open court, and “true” to the four enhancement paragraphs. (RR Vol. 2, pp. 9-12). All issues of guilt/innocence and punishment were tried before the bench on 7/15/15 and 7/16/15, without a jury. At the conclusion of evidence and argument, the trial court found appellant guilty of the indicted offense and assessed punishment at 40 years in IDTDCJ. (RR Vol. 3, pp. 10-11)

Appellant should have received a prison sentence shorter than 40 years for this theft-related crime under evolving standards of decency echoed in the eighth amendment.

Appellant visited a convenience store in Jackson County on 7/24/14 in the daytime during an hour when the store had no patrons, only owners and employees. A child of the owners had left her cell phone sitting on the edge of a beer tray inside the store and walked off. Appellant took the phone and later, according to the State, removed and erased its “sim” card, scrubbing the phone of all ownership indicia (photos, screensaver art, contacts, text messages, etc.). According to the State, this “scrubbing” of the sim card amounted to tampering with physical evidence.

An objection on grounds of cruel and unusual punishment grounds was raised by trial counsel when appellant was sentenced to 40 years in prison. This objection was overruled by the trial court. (RR Vol. 3, p. 11). A 40-year sentence is disproportionate to appellant’s offense in this cause.

The constitutional principal of proportionality has been recognized explicitly in the U.S. Supreme Court for over a hundred years. See generally Weems v. United States, 217 U.S. 349 (1910). A criminal sentence must be proportionate to the crime for which the defendant has been convicted. Solem v. Helm, 463 U.S. 277, 291 (1983). A court must consider the severity of the penalty in deciding whether it is disproportionate. See, e.g., Coker v. Georgia, 433 U.S. 584, 598 (1977). The prohibition against cruel and unusual punishment is contained within the eighth amendment to our federal constitution. See U.S. Const. amend VIII.

Applying evolving standards of decency that mark the progress of a maturing society [ see generally Trop v. Dulles, 356 U.S. 86 (1958)], appellant’s prison sentence in this cause should be vacated and rendered for far less than 40 years.

Appellant, although he has an extensive criminal history, committed a completely nonviolent property crime in this cause. A 40-year sentence is simply too high for such an offense.

Appellant prays that his sentence be vacated in this cause and rendered for less than 40 years.

Respectfully submitted, /s/ W. A. White W. A. (BILL) WHITE ATTORNEY FOR APPELLANT POB 7422, Vict., TX 77903 (361) 575-1774 voice/fax TBN 00788659

I certify that a true and correct copy or duplicate original of the foregoing has been provided to Robert E. Bell, D.A., Jackson Co. District Attorney’s Office, 115 W. Main Street, Room 205, Edna, TX 77957 via U.S. mail, fax, electronic delivery, or hand-delivery on this the 15 th day of September 2015.

/s/ W. A. White W. A. White

I certify that this brief contains 919 words.

/s/ W. A. White W. A. White