Appellee’s Brief

No. 06-15-00026-CR, 06-15-00027-CR, 06-15-00028

____________________________________________

IN THE

SIXTH COURT OF APPEALS

AT TEXARKANA, TEXAS

____________________________________________

ROGER DALE GAMMONS,

Appellant

v.

THE STATE OF TEXAS,

 Appellee

____________________________________________

APPEAL FROM

THE 8TH DISTRICT COURT OF HOPKINS COUNTY, TEXAS

TRIAL COURT NO. 1423872, 1423873, 1423874

____________________________________________

APPELLEE’S BRIEF

____________________________________________

Will W. Ramsay

110 Main Street

Sulphur Springs, TX 75482

903.885.0641, f. 903.885.0640

wramsay@hopkinscountytx.com

Attorney for Appellee

State of Texas

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

06-15-00026-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

6/16/2015 7:03:32 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 6/17/2015 8:22:00 AM DEBBIE AUTREY Clerk
Appellee’s Brief Page i

IDENTITY OF PARTIES AND COUNSEL 

Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all 

parties to the trial court’s judgment and the names and addresses of all trial and 

appellate counsel: 

Appellant Appellant’s appellate counsel

Roger Dale Gammons J. Edward Niehaus

207 W. Hickory St. Suite 309

Denton, Texas 76201

940.600.1295 telephone

888.821.2890 facsimile

Appellant’s trial counsel

Heath Hyde

214 Connally Street

Sulphur Springs, TX 75482

903.439.0000 telephone

Appellee Appellee’s trial & appellate counsel

The State of Texas Will Ramsay

8TH Judicial District Attorney

110 Main Street

Sulphur Springs, TX 75482

903.885.0641 telephone

903.885.0640 facsimile

wramsay@hopkinscountytx.com
Appellee’s Brief Page ii

TABLE OF CONTENTS 

Identity of Parties and Counsel ............................................................................ i

Table of Contents ...........................................................................................ii, iii

Index of Authorities............................................................................................ iv

Statement of the Case ...........................................................................................2

Issues Presented....................................................................................................3

POINT OF ERROR 1: Appellant’s Plea of Guilty was Involuntarily 

Entered Where Appellant was Incompletely Admonished Regarding 

His Eligibility for Probation

POINT OF ERROR 2: The Court Erred by Failing to Recuse Himself 

Where the Court had Personal Knowledge of Disputed Facts Relating 

to Appellant’s Enhancement Paragraph(s)

POINT OF ERROR 3: The Court Erred by Failing to Recuse Himself 

After Having Previously Served as Counsel to the Defendant in 

Related Criminal Proceedings Relevant to the Case for Which 

Appellant Appeared Before the Court

Statement of Facts ...............................................................................................4

Summary of the Argument...................................................................................5

Argument.......................................................................................................... 5-8

POINT OF ERROR 1: Appellant’s Plea of Guilty was Not 

Involuntarily Entered Because Appellant was Admonished Correctly 

Pursuant to Article 26.13 of the Code of Criminal Procedure. .............. 5-7

POINT OF ERROR 2: Appellant Waived and Failed to Preserve Any 

Possible Error in the Trial Judge Hearing the Case. .............................. 7-8

POINT OF ERROR 3: Besides Failing to Preserve Error, This Court

Has Held that a Trial Court Does Not Err by Failing to Recuse 
Appellee’s Brief Page iii

Himself After Having Previously Served as Counsel to the Defendant 

in Related Criminal Proceedings................................................................8

Prayer....................................................................................................................8

Certificate of Word Count....................................................................................9

Certificate of Service............................................................................................9
Appellee’s Brief Page iv

INDEX OF AUTHORITIES 

Cases

Arnold v. State, 

853 S.W.2d 543, 544–45 (Tex.Crim.App.1993)............................... 7,8

Barron v. State of Tex. Attorney Gen., 

108 S.W.3d 379, 383 (Tex.App.-Tyler 2003, no pet.)......................... 7

Martin v. State, 

876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.)................ 7

Morsman v. State, 

2013 Tex. App. LEXIS 6177, 2013 WL 2247322 (Tex. App. 

Texarkana May 21, 2013). .................................................................. 8

Rosas v. State, 

76 S.W.3d 771, 774 (Tex.App.-Houston [1st Dist.] 2002, no pet.)..... 7

Statutes

TEX. CODE CRIM. P. art. 26.13 .................................................................... 5, 6

Tex.R. Civ. P. 18a(a) (amended 2011)........................................................... 7
Appellee’s Brief Page 1

No. 06-15-00026-CR, 06-15-00027-CR, 06-15-00028

____________________________________________

IN THE

SIXTH COURT OF APPEALS

AT TEXARKANA, TEXAS

____________________________________________

ROGER DALE GAMMONS,

Appellant

v.

THE STATE OF TEXAS,

 Appellee

____________________________________________

APPEAL FROM

THE 8TH DISTRICT COURT OF HOPKINS COUNTY, TEXAS

TRIAL COURT NO. 1423872, 1423873, 1423874

____________________________________________

APPELLEE’S BRIEF

____________________________________________
Appellee’s Brief Page 2

STATEMENT OF THE CASE

Appellee believes that the Appellant has accurately and succinctly given the 

Statement of the Case in his brief and would adopt his version as follows:

Appellant was charged by indictment with possession of a 

penalty group one controlled substance, with intent to deliver, 

in an amount over 4g but less than 200g in cause number 

1423872 (hereinafter “case 872”)(CR1 at 1, 42), with 

tampering with physical evidence in cause number 1423873 

(hereinafter “case 873”)(CR2 at 1, 41), and with 4g but less 

than 200g in cause number 1423874 Appellant's Opening Brief 

iv (hereinafter “case 874”)(CR3 at 1, 42), all of which were 

pending in the 8TH Judicial District Court of Hopkins County, 

Texas, the Honorable Eddie Northcutt, Presiding, (RR II 6 –

8).1 Appellant's punishment range was enhanceable pursuant 

to the habitual felony offender provision of the penal code, 

(RR II 8; CR1 at 29; CR2 at 18; CR3 at 26). After plea of 

guilty and hearing on punishment, Appellant was sentenced to 

incarceration for life, (CR1 at 34 – 35, 39 – 40; CR2 at 31 –

32, 37 – 38; CR3 at 33 – 34, 38 – 39; RR IV 43). As this case 

did not involve a plea bargain, Appellant has a right to appeal, 

(CR1 at 36; CR2 at 34; CR3 at 35). Appellant timely filed 

notice of appeal, (CR1 at 47 – 52; CR2 at 46 – 51; CR3 at 46 –

51). (Appellant’s Brief pp. iv-v.)

 

 

 

 

 

 

 
Appellee’s Brief Page 3

ISSUES PRESENTED 

POINT OF ERROR 1: Appellant’s Plea of Guilty was Involuntarily 

Entered Where Appellant was Incompletely Admonished Regarding 

His Eligibility for Probation.

POINT OF ERROR 2: The Court Erred by Failing to Recuse Himself 

Where the Court had Personal Knowledge of Disputed Facts Relating 

to Appellant’s Enhancement Paragraph(s).

POINT OF ERROR 3: The Court Erred by Failing to Recuse Himself 

After Having Previously Served as Counsel to the Defendant in 

Related Criminal Proceedings Relevant to the Case for Which 

Appellant Appeared Before the Court.
Appellee’s Brief Page 4

STATEMENT OF FACTS 

Counsel for appellant has written a Statement of Facts that is approximately 

4 pages in length. (Brief for Appellant pgs. 1-5) Appellee adopts the Statement of 

Facts set forth in the Brief for Appellant absent the emphasis added.
Appellee’s Brief Page 5

SUMMARY OF THE ARGUMENT 

POINT OF ERROR 1: Appellant’s Plea of Guilty was Not 

Involuntarily Entered Because Appellant was Admonished 

Correctly Pursuant to Article 26.13 of the Code of Criminal 

Procedure.

POINT OF ERROR 2: Appellant Waived and Failed to Preserve 

Any Possible Error in the Trial Judge Hearing the Case.

POINT OF ERROR 3: Besides Failing to Preserve Error, This 

Court Has Held that a Trial Court Does Not Err by Failing to 

Recuse Himself After Having Previously Served as Counsel to the 

Defendant in Related Criminal Proceedings.

ARGUMENT

POINT OF ERROR 1: Appellant’s Plea of Guilty was Not 

Involuntarily Entered Because Appellant was Admonished 

Correctly Pursuant to Article 26.13 of the Code of Criminal 

Procedure.

The trial court satisfied the requirements of Article 26.13 of the Texas 

Code of Criminal Procedure. Nowhere in Article 26.13 is it required that the 

court explain the differences between “straight” probation and deferred 

adjudication. 

Appellant is confused as to Appellee’s argument in this point of error. 

The argument seems to be that the trial court erred by not telling Appellant 

that “straight” probation was prohibited. However, the trial court went 

above and beyond to explain the possible consequences of this open plea. 
Appellee’s Brief Page 6

(See RR. Vol. 2 p. 6) In this rendition of the possible consequences of the 

plea, the trial court explained the best and worst day for Appellant. Further, 

within all of the possibilities associated with a plea of guilty, the court 

mentioned the chance of straight probation. This explanation was prior to 

the trial court finding it true that Appellant had two prior consecutive felony 

convictions.

Taken together, the fact that the judge explained to the defendant that 

the court could assess a punishment of 10 years or less and then suspend the 

imposition of the sentence and place Appellant on probation, but then later 

told Appellant that, if the prior convictions were found true, Appellant’s 

range of punishment would move to 25 to Life, shows that the court 

explained the prohibition on straight probation. After going through the 

whole explanation, Appellant stated that he understood. (See RR. Vol. 2 p. 

9)

Regardless of the fact that the trial court satisfied the requirements of 

Article 26.13, Appellant would not have been harmed if the court had never

mentioned the possibility of straight probation. The Appellant even stated 

that he “...rejected a plea bargain offer of twenty-five years confinement in 

order to attempt to obtain deferred probation from the Court.” (Appellant’s 

Brief p. 7) (emphasis added). The truth of the matter is Appellant was going 
Appellee’s Brief Page 7

“all in” with the hopes that the judge would give him deferred probation, 

even with the prior pen trips. To now state that the court failed to advise 

him of the prohibition of straight probation is not demonstrated by the record 

and, quite simply, not legally required of the trial court.

POINT OF ERROR 2: Appellant Waived and Failed to Preserve 

Any Possible Error in the Trial Judge Hearing the Case.

Generally, a recusal motion must be filed at least ten days before trial and 

must be verified. See Tex.R. Civ. P. 18a(a) (amended 2011); Arnold v. State, 853 

S.W.2d 543, 544–45 (Tex.Crim.App.1993); Barron v. State of Tex. Attorney Gen., 

108 S.W.3d 379, 383 (Tex.App.-Tyler 2003, no pet.). The provisions of Rule 18a 

wherein a trial judge must recuse himself or refer the motion to the presiding judge 

of the administrative judicial district apply when a written, verified motion to 

recuse is filed. Id. If the basis for recusal does not become apparent until a later

point in time, the defendant preserves the complaint by promptly filing the written, 

verified motion when the basis for recusal is finally discovered. See Rosas v. State, 

76 S.W.3d 771, 774 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Martin v. State, 

876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.). 

In this case, Appellant was aware of a possible complaint more than ten days 

before the punishment hearing and did not timely file a verified written motion to 

recuse. See RR. Vol. 3 p. 5-8. In fact, Appellant expressly waived any objection to 

the fact that the judge had previously represented him on another case. Id. 
Appellee’s Brief Page 8

Therefore, the issue was waived and not preserved for appellate review. See 

Arnold, 853 S.W.2d at 544–45.

POINT OF ERROR 3: Besides Failing to Preserve Error, This 

Court Has Held that a Trial Court Does Not Err by Failing to 

Recuse Himself After Having Previously Served as Counsel to the 

Defendant in Related Criminal Proceedings.

As Appellant properly stated, this Court has already decided this issue. See 

Morsman v. State, 2013 Tex. App. LEXIS 6177, 2013 WL 2247322 (Tex. App. 

Texarkana May 21, 2013). Morsman is directly on point and in favor of the trial 

court’s actions.

Further, and in the alternative, Appellant has waived any possible error 

regarding this issue for the reasons stated above in Point of Error 2.

PRAYER 

WHEREFORE, premises considered, Appellee, State of Texas, respectfully 

requests that the judgment of the trial court be affirmed. 

Respectfully submitted, 

By: //s// Will Ramsay

Will Ramsay

8th Judicial District Attorney

State Bar #24039129

110 Main Street

Sulphur Springs, TX 75482

903.885.0641, f. 903.885.0640

willramsay@hopkinscountytx.com

Attorney for Appellee

State of Texas
Appellee’s Brief Page 9

CERTIFICATE OF WORD COUNT

Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 1,819 words. 

__/s/ Will Ramsay_

Will Ramsay

 

 

CERTIFICATE OF SERVICE 

This is to certify that on June 16, 2015, I served a true and correct copy of 

the above and foregoing Appellant’s Brief by email on J. Edward Niehaus, 

Attorney for Appellant.

__/s/ Will Ramsay_

Will Ramsay