siz-ts

No.PD-0578-15

. R i A t IN THE COURT OF CRIMINAL ^_„n „__ ORIGINAL -PEALS OF TEXAS RECEIVED m

w s , COURT OF CRIMINAL APPEALS

KENNETH CRAIG VICKERS » 1925934 JJJ^ 27 2015

petitioner

THE STATE OF TEXAS

respondent

On Appeal From The Court of Appeals For The

Sixth Appellate Judicial District of Texas

at Texarkana CO.A. no. 06-14-00072-CR

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

KENNETH CRAIG VICKERS * 1925934

Telford Unit

3899 State Hwy 98

New Boston,TX.75570

Oral Argument Requested if This Court deems Neccessary FILED IN

COURT OF CRIMINAL APPEAL

JUL 27 22^5

Abel Acosta, Clerk

Court CoP*\
IDENTITIES OF PARTIES

The parties are as follows:

Mr. Kenneth Craig Vickers, pro se petitioner

Telford Unit, 3899 State Hwy 98, New Boston, TX 75570

State of Texas, respondent

Mr. Will Ramsey, 8th Judicial District Attorney, PO Box 882, Sulphur Springs,

TX 75483-0882 and

Mr. Peter Morgan, 8th Judicial District Attorney, PO Box 882, Sulphur

Springs, TX 75483-0882

li
TABLE OF CONTENTS

Identies of Parties _..„.._. . . . . . ^ . ... ......... v ii

Table of Contents. _........ . . . . . , iii

Index of Authorities,. „ ''m i - .-•-••-.- - - - -111,1

Statement of the Case . 2

Statement of the Facts... ........... 1/2

Grounds For Review. Jaelow

1. The court of appeals erred by affirming the trial court's conviction

when proof of ineffective assistance of counsel exists in the record.

(R.R. vol.4 p.24, R.R. vol.4 p.74 )

2. The Petitioner's guilty plea was made involuntarily by failure to

notify the Petitioner that he was pleading to a offense with a deadly

weapon and coerced by trial counsel. (R.R. vol.3 p.15)

3. The Petitioner was denied a fair trial when trial judge sentenced

him according to judge's personal knowledge of co-defendant rather than

the evidence presented at trial. (R.R. vol.4 p.81)

Request Eor Oral Argument ....... ........ „ _ . i

Summary of The Argument... .... . . 3

Argument .....„....,,•..... ............ 4 J" 7•

Prayer For Relief . „. 7

n

Certificate of Service 8

Certificate of Compliance 7

INDEX OF AUTHORITIES

ARIZONA V. FULMINATE,499 U.S. 279, 309-10; 111 S.Ct. 1246; 113 L.Ed. 2d

302 (1991)

Blount V. STATE,257 S.W. 3d 712 (Tex. Crim. App. 2008).. . 5"

BOYKIN V. ALABAMA,395 U.S. 238, 244; 89 S.Ct. 1709, 1712; 23 L.Ed. 2d 5

274 (1969) . ...... .

DAVISON V. STATE/405 S.W. 3d 682 at 686 (Tex. Crim. App. 2013) _ 6

GENTRY V. STATE, No. 06-05-00237-CR, 2006 WL 932057 (Tex. App. 2006), .... '6

HERRING V. ESTELLE,491 F.2d 125 (5th Cir. 1987)

ill
HINES V. VILLALOBA/231 S.W. 3d 550 (Tex. App. Dallas 2007)_ . _ .5

LOPEZ V. SCULLY,58 F.3d 38 (CA2 1995) . 5

MENDEZ V. STATE, 138 S.W. 3d 334, 341 (Tex. Crim. App. 2004).. 6

RICKMAN V. BELL>131 F.3d 1150 (CA6 1997).. . . . 5

U.S. ex rel. BARNARD V. LANE,819 F.2d 798 (7th Cir. 1987).. . < . A '

U.S. V. ALVARADO SALDIVAR,62 F.3d 697 (5th Cir. 1995) . , . . r5

STATEMENT OF THE CASE

The State charged petitioner by indictment with burglary of a habitation

with intent to commit the felony offense of aggravated assault or aggravated

kidnapping on June 17,2013. (C.R. p.4). On Febuary 13,2014, pursuant to ART.

26.13 T.C.C.P. admonishments, Petitioner entered a plea of guilty to

"Burglary Habitation Intend Other Felony," and the State agreed to allow the

court to decide punishment in exchange for art. 1.15 T.C.C.P. waivers. (C.

R. p.14-19; T.C.C.P. Art. 26.13;T.C.C.P. Art. 1.15). On April 17,2014, the

court sentenced Petitioner to fifty (50) years. An affirmative finding of

a deadly weapon was entered and Petitioner timely filed an appeal. On

April 27,2015, trial court's conviction was affirmed.

STATEMENT OF THE FACTS

The Petitioner was charged by indictment alleging, on about April 20,

2013, that he did, "intentionally and knowingly enter a habitation without

the effective consent of Jesse Ballentine, the owner thereof, and attempted

to commit or committed the felony offense of Aggravated Asault and Aggra

vated Kidnapping." (C.R. p.4). There is no mention of a deadly weapon in

the indictment. The written plea admonishments signed by Vickers, pleading

guilty on Febuary 13, 2014, also make no mention of a deadly weapon (C.R.

p.14-19 and R.R. vol.3 p.15) to which the court said "Mr. Vickers to the
first-degree offense of burglary of a habitation, what is your plea, sir?"

(R.R. vol.3 p.15). Mr. Vickers, the Petitioner, was never notified that a

finding of a deadly weapon was being sought.

The Petitioner acted with a co-defendant Royce "Jake" Sewell, who was

also charged with "Burglary of a Habitation Intend Other Felony," and whom

sentenced by the same judge Northcutt to twenty five (25) years in TDCJ

prior to Mr. Vicker's plea. (R.R. vol.3 p.21 and R.R. vol.4 p.76). However,

Mr. Sewell is eligible for parole this year, November 17, 2015, while Mr.

Vickers is not eligible for parole for 25 years for the same offense because

a deadly weapon was not affirmed nor sought.

Jake Sewell came to Mr. Vicker's home early in the morning of April 20th, N

2013, saying he had been robbed. (R.R. vol.4 p.54). He induced Mr. Vickers

to go with him to find "Cody," which was the person who had robbed him. Jake

Sewell took the Petitioner to some apartments and Petitioner knocked on the

door and entered when the door was opened to him. He said he was looking

for "Cody " and "Jamie " (R.R. vol.4 p.23,25). Petitioner had several guns

with him. Jesse Ballentine, Angelina Ballentine and their daughter were in

the apartment and were lead outside by Mr. Vickers to identify them by Mr.

Sewell who acknowledged that Jesse was not Cody or Jamie. They then all

went back into the apartment,including Jake, when Cody returned to the

apartment Mr. Sewell engaged him in a fight. Cody ran away and Mr. Vickers

and Jamie ( who testified to police that he went willingly ), got into the

Petitioner's truck which was driven by Jake to find him. Mr. Sewell was

dropped off by a friend Mr. Vickers, after they had exited the truck, and

Mr. Vickers and Jamie ( who was the son of Jesse and Angelina Ballentine)

were arrested a short time later when they approached an officer impounding

Petitioner's vehicle.
Prior to pronouncing sentence, Judge Northcutt stated " You know,

I'm in an unusual situation here in that I know Jake Sewellv(his name is

Royce but his friends call him Jake), and I've known him for a while. And

as you know, I sentenced him to twenty-five years and that was difficult

for me to do. Because while the thing to the defensive theory here has been

meth and Jake Sewell, I am absolutely convinced that Jake Sewell has always

been a folbwer. Jake Sewell couldn't lead himself to the bathroom. Jake

Sewell,bless his heart, just ain't a real bright guy and you are..."(R.R.

vol.4 p.76). Judge Northcutt then sentenced Petitioner to fifty years and

found that a deadly weapon was used or exhibited.(R.R. vol.4 p.81)

SUMMARY OF THE ARGUMENT

The petitioner was entitled to effective assistance of counsel secured

by the Sixth Amendment of the United States Constitution. The record proves

trial counsel deprived petitioner of effective representation by failing

to investigate a lesser included offense( such as the co-defendant received )

, lying about subpoenaed witnesses, failing to properly impeach the State's

witness, failing to inform the petitioner of the deadly weapon finding sought

by the State, failure to advise against the plea ( guilty) and to be sentenced

by the court. Trial counsel took advantage of petitioner's mental impair

ments to achieve the afore-mentioned acts.

Petitioner's guilty plea was not voluntary or understandingly made

because the written and oral plea admonishments failed to apprise him that

he was pleading guilty to a crime with a deadly weapon. Espeacially when

his co-defendant was found guilty of the same offense without a deadly

weapon finding. Fourteenth Amendment rights to Due Process require that a

defendant understand the ramifications of a guilty plea and must under

stand the consequences. The trial judge based sentence on his personal
knowledge of the co-defendant over a long period of time instead of the

evidence presented at trial, thereby depriving Petitioner of a fair trial.

ARGUMENT

1. The court of appeals erred by affirming the trial court's conviction

when proof of ineffective assistance of counsel exists in the record.

(R.R. vol.4 p.24 and R.R. vol.4 p.74)

The State's lead witness, Angelina Ballentine, testified under oath "He

[petitioner] came in saying, you know, you should know better than to open

your door and let a complete stranger come into your house."(R.R. vol.4 p.

24) and also stated under oath, "He was telling-yes,he was telling my dau

ghter that and me that." (R.R. vol.4 p.24). (1) This clearly proves that

the petitioner knocked on the door requesting entry and (2) that the door

was opened to him with an expectation of the request for entry being

granted (3) that expectation was validated by the testimony of Ms. Ballentine

saying he was'let in' (R.R. vol.4 p.24). Therefore the Petitioner could

not have committed Burglary of a Habitation as defined by Texas Penal Code

30.02 because he did not illegally enter the residence but instead had a

door opened to him from a resident of said habitation after knocking to

request entry. Furthurmore, Angelina Ballentine ( whom is an adult resident

of said location), did not testify that she requested he leave until

several moments after he had been let in and revealed a rifle.

At that point, the instruction to leave after being let in would

instead construe criminal tresspass- not burglary. Trial counsel was in

fact ineffective for failing to investigate a lesser included offense as in

U.S. ex rel. Barnard v. Lane,819 F.2d 798 (7th Cir. 1987). In fact counsel

did no investigation because he had coerced petitioner to plead guilty or

had failed to advise him not to. see Herring v. Estelle,491 F.2d 125 (5th

Cir. 1974) ( Where counsel failed to advise client of acts not constituting
•gssmsmmmimp••'

the alleged offense. State's witness also testified that the event lasted

"at least an hour or so."(R.R. vol.4 p.35) with them and neighbors going

in and outside smoking cigarettes and the small child played with afriend.

Thus contradicting the kidnapping allegation as well. Mrs. Ballentine

testified also "to make us feel better, Iguess, he unloaded the gun."

(R.R- vol.4 p.36). Furthurmore, it is proven on record that trial counsel

did not adequately seek probation for his client when counsel stated "let

me tell you what, if that had been me and my kids, Iwouldn't be -it

would be hard for me to say that."(R.R. vol.4 p.74) not asking for probation

but claiming only that the petitioner wanted probation. Thus not only putting

himself in the victim's shoes but failing to represent his own client and

violating the Texas Rules of Professional Conduct rules 1.01-3.01. Trial

counsel (attacked his client's charachter and painted abad picture of his

own client) as in RICKMAN V. BELL,131 F.3d 1150 (CA 61997) and LOPEZ V.

SCULL_Y,58 F.3d 38 (CA 21995). The issue of ineffective assistance of counsel

and denial of representation is clearly supported by the record and cannot

be considered as trial strategy. The burden- to the petitioner to show "that

it is actual error, that it is plain, and that it effects asubstantial right.

"aS ln U'S' V' ALVARADO SALDTVAR,62 F.3d 697 (5th Cir. 1995) has been

satisfied competently. The right to counsel is guaranteed by the Sixth Amend

ment of the U.S. Constitution and is fundamental in acriminal proceeding

"Fundamental error can be raised at any time." see HINES V. VILLALORA..^

S.W. 3d 550 (Tex. App. Dallas 2007), thus this error is not procedurally

barred and a reversal is warranted to secure justice.

2. The court's entry of a deadly weapon finding in the judgment was in

error as plea admonishments, both written and oral, to petitioner's

open plea of guilty failed to notify him that he was pleading to a

offense with a deadly weapon, thus making his plea involuntary and

hie Fourteenth Amendment rights to due process.

An allegation of acrime with use or exhibition of aweapon must give

adequate notice, see BLOUNT V. STATE,257 S.W. 3d 712 (Tex.Crim.App. 2008) -
The trial Judge specificaly asked the petitioner," Mr. Vickers to the firstdegree felony offense of burglary of a habitation, what is your plea, sir?"

(R.R. vol.3 p.15) there is no doubt that petitioner understood that he he

was pleading guilty to only burlary of a habitation ( as his co-defendant

had) without a deadly weapon finding being sought. An affirmative finding of

a deadly weapon was decided in petitioner's offense, though his co-defendant

did not have an affirmative finding when charged with the same offense and

tried by the same judge. A guilty plea is not constitutionally valid unless

the defendant understands both the charges against him and the consequences

of his plea, as in BOYKIN V. ALABAMA, 395 U.S., 238, 244; 89 S.Ct. 1709, 1712

; 23 L.Ed. 2d 274 (1969) For a plea to be constitutionally valid a defendant

must have "a full understanding of what the plea connotes and of its con

sequences." as in DAVISON V. STATE, 405 S.W. 3d 682, 686 (Tex.Crim.App. 2013)

The Petitioner believed he was pleading to the exact same offense his

co-defendant plead to ( they were charged with the same offense)(R.R. vol.4

p.24), the Petitioner was never notified in writing or orally that he was

pleading to a crime with a deadly weapon as the record shows. Therefore the

Petitioner is entitled to a new trial with all the relevant information

required to decide whether to pled, proceed to jury trial...etc...

3. Petitioner was denied a fair trial and impartial judge when the

judge decided punishment based on his personal knowledge of Mr. Vickers'

co-defendant instead of the evidence presented at trial.

A defendant has a right to a trial before an impartial judge and deprivation

of this right is a structural defect which is not waived by failing to object,

see GENTRY V. STATE, No. 06-05-00237-CR, 2006 WL 932057 (Tex.App.Texarkana 2006)

and ARIZONA V. FULMINATE, 499 U.S. 279, 309-10; 111 S.Ct. 1246; 113 L.Ed. 2d 302

(1991) also MENDEZ V. STATE, 138 S.W. 3d 334, 341 (Tex.Crim.App. 2004) The

judge should've recused himself when he said on record that " I know Jake

Sewell and I've known him for a while."(R.R. vol.4 p.76)
The judge's statement cannot be taken out of context, he was partial and

deprived the petitioner of his guaranteed fair and impartial trial, there

fore a new trial is warranted.

PRAYER FOR RELIEF

WHEREFOE the Petitioner prays this Honorable Court grant review of

this cause and set a precedent for justice being denied pro se petitioners

whom are appointed counsel who do not adequately represent their clients

and do stand up for them in front of blatantly partial judges.

Respecfully submitted,

Kenneth Craig

Telford Unit

3899 State Hwy 98

New Boston,TX.75570

CERTIFICATE OF COMPLIANCE

I, Kenneth Vickers, the petitioner do hereby certify that this Petition

For Discretionary Review complies with Rule 9.4 and has less than 4,500

words and is less than 15 typewritten pages.

<

Kenneth Craig Vickers #1925934

Telford Unit |

3899 State Hwy 98

New Boston,TX. 75570

Vickerst 1925934
CERTIFICATE OF SERVICE

Ido hereby certify that atrue and correct copy of tjie above-foregoing

petition for discretionary review was served by placing the same in the

U,S, Mail addressed to: Will Ramsey, 8th Judicial District Attorney, PO Box

882, Sulphur Springs, TX. 75483-0882 on this 21. day of July, 2015..

Kenneth Vickers # 1925934

Telford Unit

3899 State Hwy 98

New Boston,TX.75570
In The

Court of Appeals

Sixth Appellate District ofTexas at Texarkana

No. 06-14-00072-CR

KENNETH CRAIG VICKERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th District Court

Hopkins County, Texas

Trial Court No. 1323383

Before Morriss, C.J., Moseley and Burgess, JJ.

Opinion by Justice Burgess
OPINION

Kenneth Craig Vickers was indicted for burglary of a habitation with intent to commit

aggravated assault and aggravated kidnapping. After entering an open plea ofguilty to the indicted

offense, Vickers elected to have the trial court decide punishment. After hearing the evidence, the

trial court found Vickers guilty, entered a finding that he used or exhibited a deadly weapon, and

sentenced him to fifty years' imprisonment. On appeal, Vickers contends (1) that his plea was

involuntary because the written and oral admonishments failed to put him on notice that he was

pleading guilty to an offense involving a deadly weapon and (2) that he did not receive a fair trial

because the trial court failed to base its ruling solely upon the evidence adduced at trial. We affirm

the trial court's judgment.

I. Factual Background

Around 4:30 a.m. on April 20, 2013, Jake Sewell arrived at Kenneth Craig Vickers' home

and claimed that Cody Ramsey had robbed him. Sewell had learned that Ramsey was staying at

Angelina Vallentine's apartment in Sulphur Springs, Texas, with Angelina's son, Jamie Lindsey.

Accordingly, Sewell and Vickers travelled to Vallentine's apartment to find Ramsey. When they

arrived, Sewell stayed in the car while Vickers went to the apartment, even though Vickers did not

know Ramsey. Vickers knocked on the door, and when Angelina's four-year-old daughter, Sierra,

opened it, Vickers brushed past her into the apartment and chastised her for allowing a complete

strangerto enter her home. Once inside, Vickers pulled a "big gun" from insidehis coat, yelled at

Angelina's husband, Jesse, and put the gun against Jesse's head.
Vickers then took Jesse, Angelina, and Sierra to the parking lot to speak with Sewell, at

which point the two men realized that none of them were Ramsey. All five of them then went

back into the apartment and waited for Ramsey to return. A short time later, Ramsey arrived

together with Jamie Lindsey. When Ramsey and Jamie entered the apartment and saw Sewell,

Ramsey ran away, Sewell chased him, and the two men fought. When Ramsey broke free from

Sewell and ran away again, Vickers and Sewell left in their vehicle to find Ramsey, taking Jamie

with them.1 Vickers and Sewell were arrested soon thereafter.

At trial, Vickers admitted that he "had been high for days" when Sewell arrived at his house

that morning and that the drugs had put him "in a rage ofsome kind." He argued that drugs were

the root of his problem and that he used methamphetamines so he could "forget about all the

hardships" in his life. He also testified that using methamphetamines made him "feel powerful,

like nothing [could] hurt [him]." He did not deny the events of the day in question, and even

though he claimed he did not remember everything that happened, he admitted to doing "horrible

things" and apologized to the Vallentines. He admitted going with Sewell to Angelina's

apartment, but claimed he only intended to scare Ramsey. He also testified that he "never meant

to hurt anybody."

Vickers' mother testified that when he was using drugs, his behavior "terrified" her. She

testified that she could not "see him doing that under normal circumstances," but admitted it was

possible if he was "on drugs and knowing the way it changes his attitude." She also testified that

Vickers had suffered a serious fall as a child that caused him to have a lazy eye. As a result, he

'Jamie madea statement to policethat he was not forced to go, but witnesses said he was.

3
endured bullying when he was in grade school. Vickers began drinking alcohol when he was six

years old and began taking drugs when he was a teenager. Vickers has a long history of using

methamphetamine,2 and his drug use has cost him much—his parental rights to his two children

were terminated, and both children have since been adopted.3

II. Were Vickers' Pleas Voluntary?

In his first point of error, Vickers argues that his guilty pleas were not made knowingly and

voluntarily because the oral and written plea admonishments failed to put him on notice that he

was pleading guilty to an offense involving a deadly weapon.4 Vickers relies on Boykin v.

Alabama, 395 U.S. 238, 244 (1969), which holds that to support a conviction based on a guilty

plea, the record must affirmatively disclose that the defendant entered his plea knowingly and

voluntarily. Id. at 243; Davison v. State, 405 S.W.3d 682, 687 (Tex. Crim. App. 2013). In

determining whether a guilty plea was entered knowingly and voluntarily, we consider the totality

of the circumstances viewed it] light of the entire record. Griffin v. State, 703 S.W.2d 193, 196—

97 (Tex. Crim. App. 1986);Fluellen v. State, 443 S.W.3d 365, 368 (Tex. App.—Texarkana 2014,

no pet.); Ybarra v. State, 93 S.W3d 922, 925 (Tex. App.—CorpusChristi 2002, no pet.).

2To her knowledge, the longest Vickersever spent drug-free was approximatelytwo years.

3Vickers testified, "[M]y relationship with mychildren was good. I didn't have a case against mefor[Child Protective

Services] to take them. My- my children's mother did. I was around the wrong people while I was going through

the case. ... I failed a [drug] test. . . . "

4The deadly-weapon finding ismaterial because under Section 3g(a)(2) ofArticle 42.12 ofthe Texas Code ofCriminal

Procedure, ifthejudgment contains a deadly-weapon finding, thedefendant is noteligible for parole until the"actual

calendar timeserved, without consideration of good conduct time,equals one-halfof thesentence or 30calendar years,

whichever is less." Tex. Gov't Code Ann. § 508.145(d)(1) (West Supp. 2014).

4
Here, the indictment alleged that Vickers "intentionally and knowingly enter [sic] a

habitation without the effective consent ofJesse Ballentine,[5] the owner thereof, and attempted to

commit or committed the felony offense[s] of Aggravated Assault and Aggravated Kidnapping."

At the plea hearing, the trial court advised Vickers that he was charged with "burglary of a

habitation with intent to commit an aggravated assault." The trial court explained that "[w]ith a

plea of guilty, the Court can do anything from defer adjudicating you, known as deferred

adjudication community supervision ~ the Court can find you guilty, sentence you to as little as

5 years in the penitentiary all the way up to 99 years or a term of life." Vickers indicated that he

understood, stated that he had discussed the issue with his mother and his attorney, and expressed

his intent to waive his right to a jury and enter an open plea of guilty to the charged offense. The

"deadly weapon" issue was not discussed during the plea hearing.

The written plea admonishments state that Vickers was charged with "burglary habitation

intend other felony" and that Vickers faced punishment for a first degree felony, having a range

from five years to ninety-nine years or life. In his judicial confession, Vickers admitted that he

was "guilty of each and every act as alleged in the charging instrument." On appeal, Vickers

contends that the admonishments failed to provide him with notice ofthe possibility of a deadlyweapon finding in his case.

When the State seeks a deadly-weapon finding against a defendant, it must provide notice

ofthat fact to the defendant before trial. Exparte Beck, 769 S.W.2d 525, 527 (Tex. Crim. App.

5The apartment owner's name isspelled "Ballentine" intheindictment, while itisspelled "Vallentine" inthereporter's

record.

5
1989) (citing Ex parte Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1987)).6 However, under

certain circumstances, a defendant may receive adequate notice of a deadly-weapon issue based

simply on the offense charged. Blount, 257 S.W.3d 712.

In Blount, a jury found the defendant guilty of committing or attempting to commit

aggravated assault in connection with the burglary of a habitation. Id. at 713. Blount was also

found to have used a deadly weapon. Id. On appeal, he argued that he was not given adequate

notice ofthe State's intent to seek a deadly-weapon finding. Id. The Court ofCriminal Appeals

held that because a deadly weapon is '"anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury,'" and because aggravated assault can only be

committed by either using a deadly weapon or by causing serious bodily injury, then "an allegation

that a defendant committed [or attempted to commit] aggravated assault gives him notice that the

deadly nature ofthe weapon alleged in the indictment would be an issue at trial and that the State

6InPatterson, the court heldthat the "applicantwas entitledto noticethat the Statewould pursuean affirmative[deadly

weapon] finding as authorized by Article 42.12, § 3g(a)(2)." Patterson, 740 S.W.2dat 775. Although the court went

on to discuss how notice should be provided, with one judge contendingthat the State was not required to plead it in

the indictment and three other judges contending that it was, Patterson failed to resolve that issue. See Blountv. State,

257 S.W.3d 712, 713, n.2 (Tex. Crim. App. 2008). Then, in Beck, the court held that where the indictment charges

death or serious bodily injury as the result of a weapon, the notice required by Patterson has been satisfied; yet, the

jurymust still make an affirmative finding thata deadly weapon was used. Beck, 769S.W.2d at 528. Thecourt also

cleared up the confusion created byPatterson overwhether the deadly-weapon issue hadto be pledinthe indictment,

holding that it did not. Id. (Clinton, J., concurring). Later, in Crumpton v. State, 301 S.W.3d 663,664-65 (Tex. Crim.

App. 2009), the court overruled Beck's conclusion that a verdict finding a defendant guilty as charged does not

constitute an affirmative deadly-weapon finding. Thus, eventhough the courthas continued to develop the typeand

amount of notice required by Article 42.12, Section 3g(a)(2) inthe years since Patterson, it has never retreated from

Patterson's initial requirement thattheState must provide a defendant withsome notice of itsintent to seeka deadlyweapon finding and that notice must be provided before trial.
may seek an affirmative finding on the use of the weapon." Id. at 714;7 Crumpton, 301 S.W.3d at

664.

In the present case, the State alleged that Vickers did "intentionally and knowingly enter a

habitation without the effective consent ofJesse Ballentine, the owner thereof, and attempted to

commit or committed the felony offensefs] of Aggravated Assault and Aggravated Kidnapping."

Unlike the indictment in Blount, the indictment here does not charge Vickers with aggravated

assault, but with burglary of a habitation with the intent to commit aggravated assault and

aggravated kidnapping. Moreover, burglary of a habitation and aggravated kidnapping can be

committed without the use of a deadly weapon or without using "anything that in the manner of

its use or intended use is capable of causing death or serious bodily injury." Id. Thus, Vickers

To fully understand why an allegation ofaggravated assault places a defendant on notice that the State seeks a deadlyweapon finding, one must review the statutory definitions of assault, aggravated assault, and deadly weapon. Under

Section 22.01 ofthe Texas Penal Code, assault can be committed in one ofthree ways: (1) causing bodily injury to

another person; (2) threatening another person with imminent bodily injury; or (3) causing offensive or provocative

contact with another person. Tex. Penal Code Ann. § 22.01(a)(lH3) (West Supp. 2014). Under Section 22.02, an

assault is aggravated in one oftwo ways: (1) the assault causes serious bodily injury, or (2) the defendant exhibits or

uses a deadly weapon in committing the assault. TEX. PENAL CODE Ann. § 22.02(a)(l)-(2) (West 2011).

Under Section 1.07, an object is a "deadly weapon" if (A) it is "a firearm or anything manifestly designed, made, or

adapted for the purpose of inflicting death or serious bodily injury" or (B) it "is capable of causing death or serious

bodily injury" in the manner in which it was used or intendedto be used. Tex. Penal Code Ann. § 1 07(a)(17)(A>-

(B) (West Supp. 2014). Therefore, an object defined by Section 1.07(a)(17)(A) is a deadly weapon per se, whereas

an objectdefined by Section 1 07(a)(17)(B) becomes a deadlyweaponby the manner of its use or intended use.

Whenthese statutory definitions are combined, a personcan commitan aggravated assault in only one of threeways:

(1) using any object to cause serious bodily injury; (2) using a per se deadly weapon to threaten someone with

imminent bodily injury; or (3) usinga per se deadly weaponto offensively or provocatively contactsomeone. Tex.

Penal Code Ann. §§22.01(a)(l)-(3), 22.02(a)(l)-{2). If an indictment alleges thefirstmethod of aggravated assault,

a deadly weapon is alleged because whatever object the defendant used became a deadly weapon when it caused

serious bodily injury. If an indictment alleges the second or third method of aggravated assault, a deadly weapon is

alleged because thedefendant used a perse deadly weapon. Thus, nomatter which method of committing aggravated

assault the State alleges, it will necessarily involve the use of a deadly weapon. Consequently, when an indictment

charges aggravated assault, thedefendant is,legally speaking, on notice thattheState seeks a deadly-weapon finding.

7
argues that Blount is inapplicable and that the indictment cannot provide the required deadlyweapon notice.

Nevertheless, Vickers received a copy ofthe indictment at his arraignment. The indictment

charges him with burglary ofa habitation with intent to commit aggravated assault and aggravated

kidnapping. At his plea hearing, the trial court told him that he was charged with "burglary of a

habitation with intent to commit an aggravated assault." Vickers pled guilty to the charge pending

against him in this case, which was burglary of a habitation with intent to commit aggravated

assault and aggravated kidnapping. Because the charge to which he pled guilty included both

theories and because the first theory cannot be committed without either using a deadly weapon or

causing serious bodily injury, then Blount applies and Vickers was on notice that the State would

seeka deadly-weapon finding in this case.8

8Itis true that where an indictment alleges the different methods ofcommitting the offense in the conjunctive, the jury

may be charged in the disjunctive. Vasquez v. State, 665 S.W.2d 484,486-87 (Tex. Crim. App. 1984); Zanghetti v.

State, 618 S.W.2d 383, 387-88 (Tex. Crim. App. [Panel Op] 1981). It is also true that where alternate theories of

committing the same offense are submitted to thejury in the disjunctive, it is appropriate for the jury to return a general

verdict if the evidence is sufficient to support a finding under any of the theories submitted. Aguirre v. State, Til

S.W.2d 320, 326 (Tex. Crim. App. 1982) (pp. on reh'g); Bailey v. State, 532 S.W.2d 316, 322-23 (Tex. Crim. App.

1976); see also Tex. Code Crim. Proc. Ann. art. 37.07, § 1(a) (West Supp. 2014); Kitchens v. State, 823 S.W.2d

256, 258 (Tex. Crim. App. 1991). Thus, it is conceivable that an indictment may allege different methods of

committing the offense, one of which is sufficient to provide notice of the State's intent to seek a deadly-weapon

findingand one which is not. If a defendant were to be convicted on a general verdict in such a case and challenged

the sufficiency of the deadly-weapon notice, the appellate court might then have to determine whether sufficient

evidence supportedthe theory whichprovided the deadly-weapon notice. Nevertheless, we are not required to decide

the question in this case because Vickers pled guilty to both theories.

8
III. Did the Trial Court Base its Ruling upon Information Other Than the Evidence

Adduced at Trial?

In his second point of error, Vickers contends that he did not receive a fair trial before an

impartial judge because the trial court based its punishment ruling on information other than the

evidence adduced at trial.

"The parties have a right to a fair trial." Dockstader v. State, 233 S.W.3d 98, 108 (Tex.

App.—Houston [14th Dist.] 2007, pet. refd). "One ofthe most fundamental components of a fair

trial is a neutral and detached judge." Id. Absent clear evidence of bias or partiality found within

theappellate record, we presume the trial judge acted as a neutral and detached officer. See Brumit

v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Thompson v. State, 641 S.W.2d 920,

921 (Tex. Crim. App. 1982), disagreed-with on other grounds by Estep v. State, 901 S.W.2d 491

(Tex. Crim. App. 1995)); Fielding v. State, 719 S.W.2d 361, 366 (Tex. App—Dallas 1986, pet.

refd).

In this case, at the punishment hearing, the court considered the presentence investigation

report, a substance abuse evaluation of Vickers, and the testimony of Angelina, Vickers, and

Vickers' mother. After the presentation of evidence and after closing arguments, but before the

pronouncement ofsentence, the trial court made several remarks, to-wit:

You know, I'm in an unusual situation here in that I know Jake Sewell and

I've known him for a while. And as you know, I sentenced him to twenty-five

years and that was difficult for me to do. Because while the thing to the defensive

theory here has been meth and Jake Sewell, I am absolutely convinced that Jake

Sewell has always been a follower. Jake Sewell couldn't lead himself to the

bathroom. Jake Sewell, bless his heart, just ain't a real bright guy and you are and

he probably did express some frustration.
I, too, believe like your mother that everybody is salvageable. But even

your mother said, she can't guarantee what someone will do. And salvageable -

there's a difference to me when I sentence a guy like Jake Sewell, under the

circumstances that were unique to his case and the circumstances that are unique to

your case, some ofthem are the same. Some ofthem are vastly different. To some

degree I feel like I need to protect Jake Sewell from Jake Sewell, because he just

will not stop being a knucklehead.

And there's a difference between a knucklehead and I hear - I hear the

things that - look - look that day on that April 20, 2013, that wasn't me, that was a

monster and I'll never be that monster again. I have not much confidence that that's

the case ....

I think the issues, since I've worked in mental health some time ~ for quite

a long time. Majored in psychology, minored in counseling. Sometimes people

use drugs to mask mental illness. It's call [sic] self-medicating. Sometimes the

despondency that you've sunk into, in my mind, is a result ofthe fact that you are

an extremely intelligent person, who unlike a guy like Jake Sewell just doesn't get

it. You get it. You understand how bad it is right now.

The trial court then sentenced Vickers to fifty years' imprisonment, as recommended by the State.

Vickers contends that the court's comments regarding Sewell establish that he did not receive a

fair trial before an impartial judge. For Vickers to prevail on this point of error, the record must

clearly demonstrate bias or partiality.9

'Vickers concedes that he failed to raise this due process issue in the trial court, but, citing our unpublished opinion in

Gentry v. State, No. 06-05-00237-CR, 2006 WL 932057 (Tex. App.—TexarkanaApr. 12, 2006, no pet.) (mem. op.,

not designated for publication), he claims that there is no requirement to object to the neutrality of the trial court at

the time of the hearing. In Gentry, we held that the defendantdid not need to preserve his due process claim that he

failed to receive a fair trial and impartial judge. Id. at *2. A few monthsafter our unpublished opinionin Gentry, the

Court of Criminal Appeals declined to address whether thisissue mustbe preserved, and instead, the courtexamined

the record for clearevidence ofjudicial bias. Brumit, 206 S.W.3d at 644-45. In Brumit, just priorto sentencing, the

trial judge reflected on a case he had prosecuted before he became a judge, concluding, "'That casemade me think

that anybody that ever harmed a child shouldbe put to death.'" Id. at 640. Findingthat the trial judge's comments

failed to reflect bias,partiality, or thatthejudge failed to consider the full range of punishment as would be necessary

to find a due process violation, theCourt of Criminal Appeals affirmed Brumit's sentence. Id. at 645. Accordingly,

we do not decide whether thisissue mustbe preserved, but willreviewthe record for clearevidence ofjudicial bias.

10
In Gentry, a Marion County constable, Dreesen, had received reports oftwo men "'walking

in and out oftraffic or in and out of pastures and things north ofJefferson,'" Texas. Gentry, 2006

WL 932057, at *1. When he saw Gentry and his companion walking down the side of a highway,

Dreesen stopped them, conducted a pat-down search ofGentry, and found a switchblade knife and

some marihuana. Id. Dreesen arrested Gentry, and Gentry was charged with possession of a

prohibited weapon. Id. Gentry moved to suppress the knife, and in denying that motion, the trial

court stated,

"You can stop. Because I'm going to be honest with you, I remember this day. I

live on that road. This Motion is going to be denied because I'm one ofthem that

almost hit them. I'm going to deny this Motion to Suppress. I'm not so sure that I

wasn't one ofthem who called Officer Dreesen to be honest with you. I remember

this day and I remember the situation. I'm going to deny the Defendant's Motion

today; it's not going to be granted.

Like I say, I've got firsthand knowledge ofthe situation ... and I believe he has the

right to do this [search the defendant].

To be honest with you, my decision is based on what I saw that day."

Id. When the trial judge refused to recuse himself, Gentry entered into a plea agreement wherein

he was placed on misdemeanor deferred adjudication community supervision for ninety days and

fined $150.00. Id. On appeal, this Court noted that "the trial judge stated clearly that he was

makinghis determination and rulingbased,not on the evidence adduced at the hearing, but on his

personal knowledge of the event." Id. at *3. We held that thejudge's actions were void andthat

11
he was disqualified "because of his stated inability to rule based solely on the evidence adduced at

the trial." Id.

Comparing the facts ofthis case to those of Gentry, Vickers argues that the trial court here

"made [its] determination of the respective culpability of the two co-defendants based on [its]

personal knowledge of [Vickers'] co-defendant rather than on the evidence adduced at trial."10

Yet, Gentry is distinguishable because the record here does not establish that the trial judge was a

witness to the events in question. See id. at *3. More relevant to the present case is Roman v.

State, 145 S.W.3d 316 (Tex. App—Houston [14th Dist.] 2004, pet. refd), where the defendant

sought the trial judge'srecusal based on his comments prior to trial.''

In Roman, when the defendant informed the trial court that he wanted the court to decide

punishment, the court told him that (1) "under a similar first-degree felony drug case, he gave the

defendant life in prison," (2) "he would have given a longer sentence to [Roman's] co-defendant

than the jury assessed," and (3) "a jury—and not he—should assess punishment, because he was

likely to impose a higher punishment than a jury." Id. at 318. Roman movedto recusethe judge,

arguing that thejudge's statementsreflected bias which eliminatedRoman's option to waive ajury

10Vickers does not argue that his sentence is outside the range of punishment.

"It istruethata trial court cannot take judicial notice of the testimony from a previous trial unless a transcript of that

testimony is admitted in the later trial. Davis v. State, 293 S.W.3d 794, 797 (Tex. App.—Waco 2009, no pet.).

Nevertheless, "a court may take judicial notice of the existence of thetestimony in a co-defendant's trial ... [solong

as the] court [does] nottake judicial notice of the truth of the factual content of thattestimony because its accuracy

canreasonably bequestioned." Id. (citing Resendez v. State, 256 S.W.3d 315, 324 (Tex. App.—Houston [14th Dist]

2007, pet. granted)). InRoman, as inthis case, the trial court was not taking judicial notice of prior testimony from a

separate case to resolve disputed facts in the case before it, but simply comparing the culpability of the two codefendants based upon hisobservations oftheevidence presented inboth trials. Bycontrast, inGentry, thetrial judge

was resolving disputed factual issues inthe defendant's suppression hearing based upon his personal observations of

the events in question. Thus, Gentry is distinguishable fromRoman and fromthe presentcase.

12
and go to the trial court on punishment. Id. Roman's motion to recuse was denied, the case went

to trial, and a jury assessed Roman's punishment at forty years' imprisonment and a $50,000 fine.

Id. at 318-19. Roman argued that the administrative judge erred in failing to recuse the trial judge.

Mat 319.

Roman argued that the trial judge's comments showed extrajudicial bias. Id. at 321. The

court of appeals first noted that Black's Law Dictionary defines "extrajudicial" as "something

taking place '[o]utside court' or 'outside the functioning ofthe court system'" and that it defines

"out-of-court" as '"[n]ot done or made as a part of a judicial proceeding,' as a synonym to the

word extrajudicial.'" Id. The court of appeals went on to find that the judge's comments did not

stem from an extrajudicial source because they represented '"opinions formed ... on the basis of

facts ... or events occurring in the course ofthe current proceedings, or of prior proceedings.'"

Id. at 321-22 (quoting Andrade v. Chojnacki, 338 F.3d 448, 462 (5th Cir. 2003)). Accordingly,

the court affirmed the trial court'sjudgment.12 Id. at 322.

Here, the trial court heard all the evidence and the arguments of both sides before making

its comments regarding the co-defendant, Sewell. The trial court noted that it had previously

presided over the State's case against Sewell for the events in question. Pursuant to Roman, to the

extent that the judge's knowledge of Sewell was gained in a previous proceeding, it is not

extrajudicial. See id. at 321-22.

12Although Roman involved thedenial of a motion to recuse the trial judge, whereas the present caseinvolves alleged

extrajudicial bias bythejudgeinsentencing, the issue is the same: whether thetrialjudgeis biased by hispossession

ofinformation obtained outside ofthe case before him. Thus, Roman is applicable to this case.

13
Yet, even if the information had come from an extrajudicial source, it would not change

the outcome ofthis case because the judge's comments about Sewell identified mitigating factors

that justified a lesser sentence for Sewell, not aggravating factors justifying a higher sentence for

Vickers. In fact, the aggravating factors relied upon by the court in imposing Sewell's higher

sentence—that (a) Vickers was "an extremely intelligent person," (b) as opposed to the simple

thefts or burglaries usually related to drug addiction, this was a "horrific home invasion"

perpetrated by Vickers, and (c) Vickers held the Vallentine family, including a four-year-old child,

at gunpoint as part of a "well calculated and planned effort"—were all derived from the evidence

presented in Vickers' case.13 Thus, the trial court based itsruling on the evidence before it, and

the aggravating factors identified by the trial judge justified Vickers' fifty-year sentence.

Consequently, Vickers has failed to establish that he did not receive a fair trial before an impartial

judge. Accordingly, we overrule this point of error.

We affirm the trial court's judgment.

Date Submitted: March 4,2015

Date Decided: April 27, 2015

Publish

Ralph K. Burgess

Justice

13Even when the trial judge referred to his prior training and experience in psychology and counseling, his ultimate

conclusion was thatVickers was"anextremely intelligent person," which was supported bythe evidence presented at

trial.

14