Appellee’s Brief No

. 06

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____________________________________________

I N THE

S IXTH C OURT OF A PPEALS

AT T EXARKANA

, T EXAS

____________________________________________

R OGER D ALE G AMMONS , A ppellant

v.

T HE S TATE OF T EXAS , Appellee

____________________________________________

A PPEAL FROM

THE 8 TH D ISTRICT C OURT OF H OPKINS C OUNTY

, T EXAS

T RIAL C OURT N O

. 1423872

, 1423873

, 1423874

____________________________________________

A PPELLEE ’ S B RIEF

_______________________________________ _____

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

CLERKAppellee’s Brief Page i I

DENTITY OF P ARTI ES AND C OUNSEL

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 Dal e 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

903.439.00 00 telephone

Appellee Appellee’s trial & appellate counsel

The State of Texas Will Ramsay

8 TH Judicial District Attorney

110 Main Street Sulphur Springs, TX 75482 903.885.0641 teleph one 903.885.0640 facsimile wramsay@hopkinscountytx.comAppellee’s Brief Page ii T ABLE OF C ONTENTS

Identity of Parties an d Counsel

................................ ................................ ............ i

Table of Contents

................................ ................................ ........................... ii , iii

Index of Authorities

................................ ................................ ............................ i v

Statement of the Case

................................ ................................ ........................... 2

Issue s Presented

................................ ................................ ................................ .... 3

POINT OF ERROR 1 : Appellant’s Plea o f 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 App ellant’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 Argu ment

................................ ................................ ................... 5

Argu ment

................................ ................................ ................................ .......... 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 RecuseAppellee’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

................................ ................................ ............................ 9Appellee’s Brief Page iv I

NDEX OF A UTHORITIES

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, n o pet.)

......................... 7

Martin v. State

, 876 S.W.2d 396, 397 (Tex.App.

- Fo rt Worth 1994, no pet.)

................ 7

Morsman v. State

, 2013 Tex. App. LEXIS 61 77, 2013 WL 2247322 (Tex. App. Texarkana May 21, 2013)

. ................................ ................................ .. 8

Rosas v. State

, 76 S.W.3d 771, 774 (Tex.App.

- Hous ton [1st Dist.] 2002, no pet.)

..... 7

Statute s

T EX

. C ODE C RIM

. P. art. 26.13

................................ ................................ .... 5, 6

Tex.R. Civ. P. 18a(a) (amended 2011)

................................ ........................... 7Appellee’s Brief Page 1 No. 06

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____________________________________________

I N THE

S IXTH C OURT OF A PPEALS

AT T EXARKANA

, T EXAS

____________________________________________

R OGER D ALE G AMMONS , A ppellant

v.

T HE S TATE OF T EXAS , Appellee

____________________________________________

A PPEAL FROM

THE 8 TH D ISTRICT C OURT OF H OPKINS C OUNTY

, T EXAS

T RIAL C OURT N O

. 1423872, 1423873, 1423874

____________________________________________

A PPELLEE ’ S B RIEF

____________________________________________Appellee’s Brief Page 2 S TATEMENT O F T HE C ASE

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:

A ppellant 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 evi dence 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 8 TH Judicial District Court o f 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 a t 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 p p . iv

- v. )Appellee’s Brief Page 3 I

SSUE S P RESENTED

POINT OF ERROR 1 : Appellant’s Plea of Guilty was Involuntarily Entered Where Appellant was Incompletely Admoni shed 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 F ailing 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 S

TATEMENT OF F ACTS

Counsel for appellant has written a Statement o f 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 S

UMMARY OF THE A RGUMENT

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

.
A RGUMENT

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 argume nt 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 o f 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 tr ial court finding it true that Appellant had two prior consecutive felony

convictions.

T aken together, t he 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 s entence 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 g oing 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 A ppellant was goingAppellee’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, qu ite 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 mu st 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.

- Fo rt Worth 1994, no pet.).

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

befor e 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 an y objection to

the fact that the judge had previously represented him on another case. Id.Appellee’s Brief Page 8 Therefore, t he 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 61 77, 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.

P RAYER

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

8 th 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 TexasAppellee’s Brief Page 9 C ERTIFICATE OF W ORD C OUNT

Pursuant to Tex. R. App. P. 9. 4(i)(3), this document contains 1,819 words.

__ /s/ Will Ramsay

_ Will Ramsay

C ERTIFICATE OF S

ERVICE

This is to certify that on June 16 , 201 5 , I served a true and correct copy of the above and foregoing A ppellan t’s Brief by email on J. Edward Niehaus

, Attorney for Appellant

.

__ /s/ Will Ramsay

_ W ill Ramsay