                                                                              ACCEPTED
                                                                          03-17-00538-CR
                                                                                21307725
                                                                THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                       12/14/2017 5:04 PM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK




               No. 03-17-00538-CR                        FILED IN
                                                  3rd COURT OF APPEALS
                                                       AUSTIN, TEXAS
  IN THE TEXAS THIRD COURT OF A              PPEALS
                                                  12/14/2017 5:04:28 PM
                  AT AUSTIN, TEXAS                    JEFFREY D. KYLE
                                                           Clerk


            DUSTIN ALLEN LAMBERT,
                     Appellant
                           v.
              THE STATE OF TEXAS,
                      Appellee


From the 277th District Court of Williamson County, Texas
                 Cause 15-0989-K277


               APPELLANT’S BRIEF


                           James Gerard McDermott, II
                           Texas Bar No. 24041438
                           215 W. University Ave.
                           Georgetown TX 78626
                           512.354.4674
                           james@centraltexasdefense.com
                           Attorney for Appellant
                           LIST OF PARTIES

TRIAL COURT JUDGE
Hon. Stacey Mathews
405 Martin Luther King
Georgetown TX 78626

APPELLANT
Dustin Allen Lambert

APPELLANT’S ATTORNEY AT TRIAL
     Jason Trumpler
     State Bar No. 24053913
     The Law Offices of Jason Trumpler
     902 E. 5th Street, Suite 108
     Austin, Texas 78702

      APPELLANT’S ATTORNEY ON APPEAL
      James Gerard McDermott, II
      State Bar No. 24041438
      215 W. University Ave
      Georgetown TX 78626

APPELLEE
The State of Texas

APPELLEE’S ATTORNEY AT TRIAL      APPELLEE’S ATTORNEY ON APPEAL
Natalie McKinnon                  Shawn Dick, or his designee
State Bar No. 24045130            District Attorney for Williamson County
Assistant District Attorney       405 Martin Luther King
405 Martin Luther King            Georgetown TX 78626
Georgetown TX 78626 




                                     !ii
                         TABLE OF CONTENTS

LIST OF PARTIES                              ii
TABLE OF CONTENTS                            iii
TABLE OF AUTHORITIES                         iv
STATEMENT OF THE CASE                         1
ISSUES PRESENTED                              1
SUMMARY OF THE ARGUMENT                       1
STATEMENT OF FACTS                            2
ARGUMENT                                      6
ISSUE                                         6
PRAYER                                       11
CERTIFICATE OF COMPLIANCE                    12
CERTIFICATE OF SERVICE                       12




                                  !iii
                          TABLE OF AUTHORITIES

CASES
Brumbalow v. State,

933 S.W.2d 298

 (Tex. App.— Waco
1996, pet. ref’d)                                              8
Edwards v. State,

21 S.W.3d 625

 (Tex. App.—Waco 2000, no
pet.)                                                          6
Garza v. State,

841 S.W.2d 19

 (Tex. App.—Dallas 1992, no
pet.)                                                          6
Green v. State,

934 S.W.2d 92

 (Tex. Crim. App. 1996)           8
Hernandez v. State,

268 S.W.3d 176, 184

 (Tex. App.—Corpus
Christi, 2008, no pet.)                                        7
Jackson v. State,

680 S.W.2d 809

 (Tex. Crim. App. 1984)        8
Jaenicke v. State,

109 S.W.3d 793

 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d)                                       7
Montgomery v. State,

99 S.W.3d 257

 (Tex. App.—Fort Worth
2003, no pet.)                                                 6
Nunez v. State,

565 S.W.2d 536

 (Tex. Crim. App. 1978).         8
United States v. Autery,

555 F.3d 864

 (9th Cir. 2009)          7
United States v. Bras,

483 F.3d 103

 (D.C. Cir. 2007)           7
United States v. Castro-Juarez,

425 F.3d 430

(7th Cir. 2005)    7


CODES AND RULES
TEX. R. APP. P. 33.1 (a)(1)(A)                                 6
TEX. CODE CRIM. PROC. art. 42A.202                             6
TEX. CODE CRIM. PROC. art. 42A.301                            10
TEX. CODE CRIM. PROC. art. 42A.302                            10
TEX. CODE CRIM. PROC. art. 42A.504                            10
TEX. R. EVID. 103                                             10


                                        !iv
TEX. PEN. CODE § 1.02                  8
TEX. PEN. CODE § 22.01(a)(1)           1
TEX. PEN. CODE § 22.01(b)(2)(A)        1




                                  !v
TO THE HONORABLE THIRTEENTH COURT OF APPEALS: 
     COMES NOW Appellant, Dustin Allen Lambert, and submits this brief on

appeal from a revocation of probation and an executed sentence in the 277th

District of Williamson County, Stacey Mathews presiding.

                           STATEMENT OF THE CASE

      Appellant was indicted for assault-family violence, enhanced with two prior

family-violence convictions, a third-degree felony. CR 15. See TEX. PEN. CODE §§

22.01(a)(1), (b)(2)(A). He pled guilty, and the trial court sentenced him to eight

years’ confinement, suspended for four years. CR 16-17; RR2: 5; RR3: 4-5. The

State filed a motion to revoke, and after a hearing the trial court revoked

Appellant’s probation and sentenced him to seven years’ incarceration. CR 93;

RR9: 117. This appeal followed.

                               ISSUES PRESENTED

                                      ISSUE

      Appellant’s sentence of seven years’ incarceration was not neces-
      sary to prevent likely recurrence of Appellant’s criminal behavior,
      does not meet the objective of rehabilitation, and does not recog-
      nize differences in rehabilitative possibilities among individual de-
      fendants.

                         SUMMARY OF THE ARGUMENT

      The trial court abused its discretion by sentencing Appellant to seven years’

incarceration because that punishment violates the objectives of the system of
prohibitions, penalties, and correctional measures in the Penal Code. This Court

should vacate the sentence and remand the case for a new punishment hearing.


                             STATEMENT OF FACTS

      Morgan Sneed was the victim in the underlying offense in this case. CR 15.

All of her testimony concerned events that happened before Appellant was placed

on community supervision. In 2015, she worked with Appellant at a Cheesecake

Factory location. RR8: 9-10. When she broke up with her boyfriend, she moved in

with Appellant. RR8: 10-11. She and Appellant then dated from February until

April of 2015. RR8: 11. At some point, Appellant started exhibiting anger issues.

RR8: 12. He would make comments about her roommate, he would insult her, and

he would hit things when he was angry. RR8: 12-14. He hit her on several

occasions, and she was scared of him. RR8: 16, 17, 19, 23-24.

      Michael Vos was a felony court officer for the Williamson County Probation

Department. RR9: 16. If a probationer has been accused of violating the terms of

probation, Vos meets with them to discuss the case. RR9: 16. He reviews the

records kept by the other probation officers and any other law enforcement reports

that may have been filed on the probationer. RR9: 17.

      Vos met with Appellant once, on January 3, 2017. RR9: 20. Appellant was

cooperative and respectful. RR9: 20. Vos noted that probation records indicated

that Appellant failed to report to probation on one occasion, in October 2016. RR9:


                                        !2
21. However, Appellant called the probation department about the missed

appointment a week after the report date and asked if he could make up the missed

appointment. The probation department instead just instructed him to make his

scheduled November appointment. RR9: 30.

      Probation notes also show that Appellant was arrested for a new offense on

November 28, 2016. RR9: 22. The offense report for that new arrest recited that

Appellant was working at that time at the Hotel Archer, which was an employment

situation of which the probation department was unaware. RR9: 23. Changing

employment without permission would be a violation of the terms of probation.

RR9: 23. However, the record establishes, and the trial court found, that Appellant

did not change employment but only took on a second job for the extra income.

      The probation department had no record of payment of fees from Appellant

for four months: March, July, August, and October of 2016. RR9: 23. As of

December 7 of 2016, Appellant was behind on payments by $219. He made a

payment on December 24 in the amount of $140 in an attempt to catch up on what

he owed. RR9: 32.

      Appellant attended Batterer’s Intervention classes, and they helped him

adjust his attitude. RR9: 27-28. He learned that he had too much to lose to get

angry and act out, and he realized how much his temper had caused him problems

over the years. RR9: 28. He successfully completed the program. RR9: 28.



                                        !3
      Baylea Builta dated Appellant in 2016. RR9: 37, 40-41. She met him when

she worked at a restaurant and he came to drink at the bar. RR9: 41. At first, the

relationship was fun and adventurous. RR9: 42. Around October 2016, they

became engaged. RR9: 43. They later had a child together. RR9: 44.

      On November 27, 2016, Builta called the police to report that Appellant had

hit her on her face during an argument, after she had hit him first. RR9: 45, 46-47,

51. It resulted in “a busted lip and a black eye.” RR9: 47; SX5. She was four-

months pregnant at the time. RR9: 68. The argument started because Builta wanted

to have sex but Appellant was getting ready for work and didn’t want to be late.

RR9: 71. She got angry at being rejected and started hitting him on his face and

chest. RR9: 71-72. He left for work. RR9: 73. She called the police over four hours

later. RR9: 74.

      Builta also has anger issues, and so she removed herself from the apartment

and went to a restaurant where she worked to keep herself from doing something

she would regret. RR9: 50. She had reported at the time that she was scared to go

home because “I thought he was going to kill me and that if I couldn’t get away

that I was going to move.” RR9: 51.

      Builta had called her mother for advice but had told her mother an inaccurate

version of the story for sympathy. RR9: 75, 92. She based her report on the version

she had told her mother, in part because her mother and grandfather pay for many

of her bills and she was afraid they might cut her off if they knew the truth. RR9:

                                         !4
75, 81. However, she corrected the story to Travis County Victim’s Services, about

hitting Appellant first, because she did not want him to get into trouble for

something she started. RR9: 62.

      He had hit her on the face two other times, and she had told police that he

had attempted to strangle her once. RR9: 53. Builta also told police that Appellant

was controlling and jealous. RR9: 55.

      Since he had been in jail on the warrant for the motion to revoke, they spoke

approximately ten times each day, costing Builta over a thousand dollars. RR9:

44-45. During one of those calls, Appellant quizzed Builta about what had

happened in court with her on another occasion. RR9: 57; SX 6. They also

discussed her moving to Midland if he was not able to come home. RR9: 59; SX 6.

Appellant got angry when he heard of the possible move. RR9: 59.




                                        !5
                                    ARGUMENT

                                       Issue
      Appellant’s sentence of seven years’ incarceration was not neces-
      sary to prevent likely recurrence of Appellant’s criminal behavior,
      does not meet the objective of rehabilitation, and does not recog-
      nize differences in rehabilitative possibilities among individual de-
      fendants.

Preservation

      Appellant anticipates that the State will argue that this issue is not preserved

for appellate review because Appellant did not object to the sentence at the time it

was pronounced. A specific objection is not required, however, when the basis of

the objection or the ground for an appeal is apparent from the context. See TEX. R.

EVID. 103(a) (requiring objection “stating the specific ground of objection, if the

specific ground was not apparent from the context”); TEX. R. APP. P. 33.1 (a)(1)(A)

(requiring specific objection “unless the specific grounds were apparent from the

context”). Many circumstances exist in which an objection is not required to pre-

serve a ground for appellate review. See, e.g., Montgomery v. State,

99 S.W.3d 257

,

259–60 (Tex. App.—Fort Worth 2003, no pet.) (no objection necessary to court’s

failure to sua sponte withdraw defendant’s guilty plea and enter not guilty plea

when evidence reasonably raises issue as to innocence); Edwards v. State,

21 S.W. 3d 625

, 626–27 (Tex. App.—Waco 2000, no pet.) (no objection necessary to deadly

weapon finding when jury did not find that defendant used or exhibited deadly

weapon); Garza v. State,

841 S.W.2d 19, 23

 (Tex. App.—Dallas 1992, no pet.) (no


                                          !6
objection necessary to amount of restitution). At least two Texas courts have

specifically held that fundamental error in punishment, such as the failure to con-

sider the full range of punishment, can be raised under certain circumstances for

the first time on appeal. See Hernandez v. State,

268 S.W.3d 176, 184

 (Tex. App.

—Corpus Christi, 2008, no pet.); Jaenicke v. State,

109 S.W.3d 793, 795-96

 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

      Further, a specific objection to the sentence would have served no useful

purpose in this case. The trial court held a unitary hearing, deciding the merits of

the motion to revoke and punishment simultaneously, issuing the punishment deci-

sion immediately.

      Due to the evidence presented and the arguments advanced, a specific objec-

tion to the sentence was not required and would, in fact, have been redundant. C.f.

United States v. Castro-Juarez,

425 F.3d 430, 434

 (7th Cir. 2005) (“Since the dis-

trict court will already have heard argument and allocution from the parties and

weighed the relevant [statutory sentencing] factors before pronouncing sentence,

we fail to see how requiring the defendant to then protest the term handed down as

unreasonable will further the sentencing process in any meaningful way.”); United

States v. Bras,

483 F.3d 103, 113

 (D.C. Cir. 2007) (following Castro–Juarez);

United States v. Autery,

555 F.3d 864

, 870–71 (9th Cir. 2009) (same).




                                         !7
Penal Code Goals

      One of the objectives of the system of prohibitions, penalties, and correc-

tional measures in the Penal Code is the rehabilitation of persons convicted of vio-

lations of the code. TEX. PEN. CODE § 1.02(1)(B). It is the duty of the trial court to

prescribe such punishment as may be necessary to prevent likely recurrence of

criminal behavior and to prescribe penalties that are proportionate to the serious-

ness of offenses and which permit recognition of differences in rehabilitative pos-

sibilities among individual offenders. Id. §§ 1.02(1)(C), 1.02(3).

A Trial Court’s Discretion

      Appellate courts review a sentence imposed by a trial court for abuse of dis-

cretion. Jackson v. State,

680 S.W.2d 809, 814

 (Tex. Crim. App. 1984). When the

standard of review is abuse of discretion, the record must contain some evidence to

support the decision made by the trial court. Brumbalow v. State,

933 S.W.2d 298, 300

 (Tex. App.— Waco 1996, pet. ref’d). A reviewing court generally should not

reverse a trial judge whose ruling was within the “zone of reasonable disagree-

ment.” Green v. State,

934 S.W.2d 92, 101

 (Tex. Crim. App. 1996). Additionally, as

a general rule, a sentence within the proper range of punishment will not be dis-

turbed on appeal. See Jackson,

680 S.W.2d at 814

; see also Nunez v. State,

565 S.W.2d 536, 538

 (Tex. Crim. App. 1978). Appellant concedes that his sentence was

within the statutorily authorized range for his offense.




                                          !8
Application of the Law to the Facts

      There is nothing in the record to suggest that Appellant is beyond redemp-

tion or that he could not be rehabilitated.

      Appellant made all scheduled appointments except for one: October 2016.

RR9: 21. However, Appellant called the probation department about the missed

appointment a week after the report date and asked if he could make up the missed

appointment. The probation department instead just instructed him to make his

scheduled November appointment. RR9: 30. This mistake does not show that

Appellant is beyond the help that probation can offer. Rather, it shows his

eagerness to comply even when mistakes are made.

      Appellant was four months behind on payments. RR9: 23. However, in

December 2016 he made extra payments in the amount of $169, over half of the

amount in arrears. RR9: 32. He had taken a second job to help catch up on the

amounts he owed. RR9: 22-23. Again, this effort shows Appellant’s desire to fully

comply with the terms of probation, even in the face of financial adversity.

      Appellant attended Batterer’s Intervention classes, and they helped him

adjust his attitude. RR9: 27-28. He not only attended passively, but he was able to

articulate the insights they gave and the ways they helped him modify his behavior.

He learned that he had too much to lose to get angry and act out, and he realized

how much his temper had caused him problems over the years. RR9: 28. He

successfully completed the program. RR9: 28. Appellant is someone for whom

                                              !9
probation was helping to become a fully integrated member of society. Mistakes

and relapse into old behavior patterns may occur, but the demonstrated efforts to

improve should be encouraged rather than using relapse to punish.

      Relapse is the best way to characterize the new offense. It was similar to the

underlying offense in many respects, but in this case Builta accepted a shared

responsibility for the event and maintained a relationship with him while he was in

custody. RR9: 40-60.

      The trial court had a less severe and more appropriate options available to it

—rather than full incarceration, the trial court could have indicated a consideration

of shock probation, it could have added jail time as a condition of continuing pro-

bation, and it could have ordered intensive individual treatment to give more long-

term support to the measured success that the intervention classes had begun. See

TEX. CODE CRIM. PROC. arts. 42A.202, .301, .302, .504.

      When rehabilitation is possible, as it is in this case, it is a disservice to the

public for a court to ignore the present overcrowding of penal facilities in Texas

and submit a defendant to a punitive term of confinement. This is particularly true

in Appellant’s case. The court has an adequate means to supervise him. It would

also be irresponsible to ignore the fact that there is wide and inconsistent sentenc-

ing in Texas and that, ostensibly, there are numerous defendants currently on pro-




                                          !10
bation for the offense such as Appellant’s, as well as other offenses with circum-

stances much worse than Appellant’s offense.

      A sentence of incarceration in the instant case does not meet the objective of

rehabilitating Appellant or permit recognition of differences in rehabilitative possi-

bilities among offenders. Incarcerating Appellant for seven years is merely puni-

tive. It does not further to Penal Code’s goal of rehabilitation to sentence Appellant

to incarceration when the trial court has alternate means to rehabilitate him and

when he made sincere efforts to take comply with and learn through the structures

that probation had given him.

      Under the circumstances of this case, Appellant urges this Court to find that

the trial court abused its discretion in sentencing Appellant to seven years’ incar-

ceration in his case and remand this case for a new punishment hearing.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court

vacate the sentence and remand his case for a new punishment hearing.

      Appellant prays for any such further relief to which he may be entitled.



                                 Respectfully submitted,

                                 /s/ James Gerard McDermott, II

                                 James Gerard McDermott, II
                                 Law Office of James G. McDermott, PLLC
                                 215 W. University Ave.

                                         !11
                               Georgetown TX 78626
                               512.354.4674
                               james@centraltexasdefense.com
                               Attorney for Appellant

                        CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief complies with Texas Rule of Appellate
Procedure 9.4. The computer-generated word count for this document is 2547
words, including headers and footnotes.

                                                /s/ James Gerard McDermott, II
                                                James Gerard McDermott


                           CERTIFICATE OF SERVICE

       I hereby certify that a true copy of the foregoing document was served by
efile on December 14, 2017 to:

APPELLEE’S ATTORNEY ON APPEAL
Shawn Dick, or his designee
District Attorney for Williamson County
405 Martin Luther King
Georgetown TX 78626

                                                /s/ James Gerard McDermott, II
                                                James Gerard McDermott




                                          !12