Devin Dasean Simmons v. State ( 2015 )

ACCEPTED
03-14-00707-CR
5432595
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/27/2015 12:48:07 PM
JEFFREY D. KYLE
CLERK
IN THE THIRD COURT OF APPEALS
STATE OF TEXAS
FILED IN
3rd COURT OF APPEALS
DEVIN SIMMONS, ) AUSTIN, TEXAS
Appellant, ) 5/27/2015 12:48:07 PM
) No.JEFFREY
Trial Court Cause 71988 D. KYLE
Clerk
vs. ) COA No. 03-14-00707-CR
)
THE STATE OF TEXAS, )
Appellee. )
)
__________________________________________________________________
A DIRECT APPEAL OF A CRIMINAL CASE FROM THE 264TH JUDICIAL
DISTRICT COURT OF BELL COUNTY, TEXAS
________________________________________________________________
APPELLANT’S OPENING BRIEF
BROWNSTONE, P.A.
ROBERT L. SIRIANNI, JR.
Texas Bar No. 24086378
201 N. New York Ave. Suite 200
P.O. Box 2047
Winter Park, FL 32790-2047
Telephone: (407) 388-1900
Facsimile: (407) 622-1511
Robert@brownstonelaw.com
Attorney for Appellant
i
IDENTITY OF THE PARTIES AND COUNSEL
As required by Texas Rule of Appellate Procedure 38.1(a), the following are
parties and counsel to the trial court’s judgment:
1. Mr. Devin Simmons: Defendant-Appellant, currently incarcerated in Ferguson
Correctional Institution.
2. Mr. Michael F. White: Trial Counsel for the Defendant-Appellant, 100 Kasberg
Drive, Suite A9 Temple, Texas 76502.
3. Terry E. Clark: Assistant District Attorney, 1201 Huey Road, P O Box 540
Belton, Texas 76513-0540.
4. The Honorable Martha J. Trudo: Trial Court Justice
ii
TABLE OF CONTENTS
IDENTITY OF THE PARTIES AND COUNSEL ....................................................................................... ii
TABLE OF CONTENTS ............................................................................................................................. iii
TABLE OF AUTHORITIES ....................................................................................................................... iv
PRELIMINARY STATEMENT................................................................................................................... 1
STATEMENT OF THE CASE ..................................................................................................................... 1
A. Nature of the Case ................................................................................................................................ 1
B. Course of Proceedings and Disposition Below .................................................................................... 2
STATEMENT REGARDING ORAL ARGUMENT ................................................................................... 3
ISSUES PRESENTED.................................................................................................................................. 3
SUMMARY OF THE ARGUMENT ........................................................................................................... 4
STATEMENT OF FACTS ........................................................................................................................... 6
ARGUMENT ................................................................................................................................................ 9
I. THE PLEA OF TRUE TO PRIOR CONVICTIONS WAS NOT KNOWING AND
INTELLIGENT............................................................................................................................................. 9
II. THE STATE FAILED TO PRESENT EVIDENCE SUFFICIENT TO PROVE THE
ENHANCEMENT ALLEGATION BECAUSE THE DEFENDANT NEVER PLED THAT EITHER OF
THE PREVIOUS CONVICTIONS WERE FINAL. ................................................................................. 12
III. THE SENTENCE OF 45 YEARS VIOLATES THE CONSTITUTIONAL PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENT BECAUSE IT IS DISPORPORTIONATE TO
THE CRIME COMMITED. ....................................................................................................................... 17
IV. THE COURT ERRED BY ALLOWING THE APPELLANT’S WIFE TO INVOKE HER FIFTH
AMENDMENT RIGHT TO TESTIFY AFTER MAKING INCRIMINATING STATEMENTS ON THE
WITNESS STAND. ................................................................................................................................... 19
PRAYER FOR RELIEF ............................................................................................................................. 23
CERTIFICATE OF COMPLIANCE .......................................................................................................... 23
CERTIFICATE OF SERVICE ................................................................................................................... 24
iii
TABLE OF AUTHORITIES
Cases
Augusta v. State, 639 S.W.2d 481, 484 (Tex. Cr. App. 1982) ..................................................... 12
Beal v. State, 91 S.W.3d 794, 796 (Tex.Crim.App.2002) ............................................................ 12
Calhoun v. State, 214 S.W. 335 (Tex. Crim. App. 1919) ............................................................. 17
Casel v. State, No. 07-12-0106-CR, MEMORANDUM, 2012 WL 4210419 (Tex. App. -
Amarillo, 9/20/12) ..................................................................................................................... 13
Crawford v. Washington, 541 U.S. 36, 51 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ................ 20
De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) ............................................. 20
Dinn v State, 570 S.W.2d 910, 915 (Tex. Cr. App. 1978) ........................................................... 13
Ex Parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006) .......................................... 18
Griffin v. State, 703 S.W.2d 193, 196–97 (Tex. Crim. App. 1986) .......................................... 9, 12
Harvey v. State, 611 S.W.2d 108, 111 (Tex. Cr. App. 1981) ................................................ 12, 13
Howard v. State, 429 S.W.2d 155 (Tex. Cr. App. 1968) ............................................................. 13
In re Enron Corp. Sec., Derivative & Erisa Litig., 762 F. Supp. 2d 942, 961 (S.D. Tex. 2010) . 20
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973) .................................................. 17
McCarthy v. Arndstein, 262 U.S. 355, 358–59, 43 S. Ct. 562, 67 L. Ed. 1023 (1923) .................. 20
Miles v. State, 357 S.W.3d 629, 634 (Tex. Crim. App. 2011) ................................................. 9, 12
Nabors v. State, No. 12-00-00371-CR, 2002 WL 1362470, at *9 (Tex. App. June 21, 2002)..... 15
Rogers v. U.S., 340 U.S. 367, 373–74, 71 S. Ct. 438, 95 L. Ed. 344 (1951) .................................. 21
Tex. Pen. Code § 12.32 (a) ............................................................................................................ 18
Texas Penal Code § 12.42 (4)(a) ...................................................................................... 12, 16, 18
iv
Texas Rule of Appellate Procedure 25.2(a)(2) ............................................................................... 1
VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007) ............................................ 9
Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984) .................................................... 13
Statutes
Pursuant to Texas Rule of Appellate Procedure 26.2 ..................................................................... 1
Tex. Code Crim. Proc. Ann. art. 26.13(c) ....................................................................................... 6
Tex. Code. Crim. Proc. art 26.13 (a)(1) .......................................................................................... 6
Tex. R. App. P. 44.2(b) ................................................................................................................... 6
Texas Rule of Appellate Procedure 9.4(i)(1) ................................................................................ 21
Constitutional Provisions
Article 1, Section 13 of the Texas Constitution ............................................................................ 14
Eighth Amendment to the United States Constitution .................................................................. 14
United States Constitution, Amendment VI. ................................................................................ 16
v
PRELIMINARY STATEMENT
In this Opening Brief, the Appellant, Devin Simmons, will be referred to as
“Defendant” or “Appellant.” The Appellee, the State of Texas, will be referred to
as the “State” or the “Appellee.” The presiding trial judge, the Honorable Martha J.
Trudo, will be referred to as the “Trial Court.” Citations to the Clerk’s Record will
be abbreviated as “CR” followed by the appropriate page number. Citations to the
Reporter’s Record will be abbreviated as “RR” followed by the appropriate volume
and page number.
This Court has jurisdiction over the instant appeal pursuant to Article V of the
Texas Constitution, Texas Rule of Appellate Procedure 25.2(a)(2) and Texas Code
of Criminal Procedure Annotated Article 44.02. Pursuant to Texas Rule of Appellate
Procedure 26.2, the Notice of Appeal in this case was timely filed, on November 20,
2014, within thirty days of November 20, 2014. (CR 122-123).
STATEMENT OF THE CASE
A. Nature of the Case
This is a direct appeal from a sentence imposed by the 264th Judicial District
Court of Bell County, Texas. Appellant pled not guilty to a charge of aggravated
robbery and was sentenced to forty five (45) years imprisonment. (RR Vol. 6 at 46).
1
B. Course of Proceedings and Disposition Below
On or about October 16, 2013 a Grand Jury filed an Indictment, charging
Appellant with Aggravated Robbery. (CR at 5). Paragraph I alleged that Appellant
“did then and there, individually and as a party with Gini Lee Taylor, while in the
course of committing theft of property and with intent to obtain or maintain control
of said property, intentionally, knowingly or recklessly cause bodily injury to Robert
Patrick by shooting Robert Patrick with a firearm, and the defendant did then and
there use or exhibit a deadly weapon, to-wit: a firearm.” (CR at 5). Paragraph II
alleged that Appellant had previously suffered a conviction for Burglary of a
Habitation. (CR at 5). Finally, Paragraph III alleged that Appellant additionally
suffered a prior conviction for Unlawful Possession of a Firearm by a Felon. (CR at
5).
Appellant was never asked by the trial court how he pled to the allegations set
forth in Paragraph I of the Indictment, and Appellant simply stated that he wanted a
jury trial when asked how he would like to proceed. (RR Vol. 2 at 10). At the
conclusion of trial, Appellant was found guilty of the offense of aggravated robbery
as charged in the indictment. (RR Vol. 5 at 94). The Appellant elected court
sentencing and was sentenced by the trial court to 45 years imprisonment.
2
STATEMENT REGARDING ORAL ARGUMENT
Appellant submits the issues are sufficiently clear such that oral argument is
not necessary.
ISSUES PRESENTED
1. Was the Appellant’s plea of true to enhancement allegations in the Indictment
knowing and intelligent when the trial court failed to properly admonish the
Appellant of the sentencing consequences?
2. Did the State fail to adequately prove the existence of the enhancement
allegations when the defendant never pled that the enhancement allegations were
true, when the State produced no evidence that the enhancement allegations were
accurate, and when the Appellant never specifically pled that he was the same person
as mentioned in the Indictment?
3. Did the trial court violate the Appellant’s right to be free from cruel and
unusual punishment by sentencing him to 45 years for aggravated robbery when he
was not the actual attacker, and when multiple witnesses testified that the co-
conspirator was completely responsible for the victim’s injuries?
4. Did the trial court err in allowing the co-conspirator to remain silent on the
witness stand after she had already waived her privilege against self-incrimination
3
by admitting in open court the existence of incriminating communications with the
Appellant? Was the Appellant’s right to confrontation thereby violated depriving
him of a fair trial?
SUMMARY OF THE ARGUMENT
The trial court erred in taking the Appellant’s plea of true to the prior
convictions as alleged in the indictment. Therefore the plea of true to the priors was
not knowing and voluntary. The admonishment of the sentencing enhancements was
not done contemporaneously with the taking of the plea. At the pretrial hearing,
Appellant rejected an offer that would have given him a 15 years minimum
punishment range. It is unreasonable to assume that he knowingly and voluntarily
admitted to priors that would enhance his punishment range to a minimum of 25
years.
The State also failed to present sufficient evidence that the Appellant’s second
prior conviction was final prior to the commission of the second alleged prior. The
Appellant never pled on the record that the paragraphs in the indictment were true.
Also, the Appellant never specifically pled that the alleged prior offense had been
finalized before the commission of the second alleged offense, and the state
presented no evidence that this was the case. Finally, the Appellant never admitted
4
or pled to being the same person that committed the offenses as alleged in the
indictment.
The trial court violated the Appellant’s right to be free from cruel and unusual
punishment since the sentence of 45 years was grossly disproportionate to the
offense. Numerous witnesses including the victim testified that the Appellant’s wife
was soley responsible for striking the victim over the head with a foreign object and
shooting the victim with a pistol. The Appellant’s wife therefore was independently
responsible for the most serious of the victim’s injuries. In light of testimony the
court heard at the sentencing hearing about the Appellant’s character and ties to the
community, the sentence was constitutionally disproportionate.
The trial court also erred when it allowed the Appellant’s wife, and co-
conspirator to refuse testimony of Fifth Amendment grounds. At trial, the
Appellant’s wife admitted on the witness stand that she had written letters to the
Appellant after the crime had occurred. When asked to testify as to the contents of
those letter, she again invoked her Fifth Amendment privilege and the court did not
instruct her to answer the question. Afterwards the Appellant attempted to testify as
to the contents of the letters, in which she wrote to the Appellant regarding what her
testimony would be at trial in regards to her own culpability. The State objected on
the grounds of hearsay and the objection was sustained.
5
Supreme Court case law provides that once incriminating communications are
revealed, Fifth Amendment privileges are waived and the declarant must testify to
the contents of the communication. Therefore the trial court violated the Appellant’s
right to confrontation and right to a fair trial by wrongfully denying him the
opportunity to develop the testimony of the witness.
STATEMENT OF FACTS
In the early morning hours of October 13th 2013, Robert Patrick was shot
and hit over the head with a foreign object by Gini Taylor, wife of the Appellant in
the instant case. The victim met Gini Taylor the same night that she attacked him,
at Pretty Lady Strip Club, where she worked as a professional stripper. (RR Vol. 4
at 17, 20). The victim left the club around 2am (RR Vol. 4 at 21), then returned to
the club around 3am and gave Gini Taylor a ride back to her apartment where she
lived with the Appellant. (RR Vol. 4 at 22). The victim stopped at an ATM
machine on the way to Gini Taylor’s apartment (RR Vol 4 at 24) and then drove
Gini Taylor home to her apartment with the intention of paying her for sex. (RR
Vol. 4 at 51). Sometime after entering the apartment, an altercation ensued
between Robert Patrick and the Appellant. (RR Vol. 4 at 28; Vol. 5 at 41). During
the altercation between the two men, Gini Taylor hit the victim over the head with
6
a foreign object and then shot him with a pistol. (RR Vol. 4 at 31-31; Vol. 5 at 43-
44).
During the jury trial the Appellant’s wife invoked her Fifth Amendment
Privilege against self-incrimination, but then proceeded to admit that she wrote
letters to the Appellant after the commission of the crime. (RR Vol. 5 at 31). When
asked by defense counsel whether or not those letters discussed what her testimony
would be a trial, she refused to answer the question on Fifth Amendment grounds.
(RR Vol. 5 at 31). Subsequently, Appellant testified on his own behalf and attempted
to introduce through testimony, the statements which incriminated his wife and
exculpated himself. The State objected on the grounds of hearsay and the objection
was sustained. (RR Vol. 5 at 45). The Appellant was unable to introduce the
exculpatory materials that his co-conspirator had alluded to in her testimony.
At the sentencing hearing, the Appellant’s mother testified that the
Appellant’s wife called her and admitted full responsibility for the shooting. (RR
Vol. 6 at 25). At the sentencing hearing, the trial court heard testimony from the
Appellant’s mother that the co-conspirator, Gini Taylor, had called her before trial
and admitted full responsibility for shooting and injuring the victim. (RR Vol. 6 at
25). The trial court also heard testimony that a harsh sentence would interfere with
his ability to be there for his young daughter. (RR Vol. 6 at 28). The trial court
sentenced the Appellant to 45 years imprisonment.
7
Although the Appellant never entered a plea on the record to the charges in
Paragraph I of the indictment, the trial court at the pretrial hearing took his plea of
true to the enhancement allegations in Paragraphs II and III at the conclusion of trial.
(RR Vol. 5 at 96-97). The trial court admonished the Appellant of the consequences
of pleading true to the enhancement allegations at the pretrial hearing on August 4,
2014. (RR Vol. 2 at 5). After the trial had concluded and the jury rendered a verdict
of “guilty” to Paragraph I, the court took the pleas of true from the Appellant in
regards to the enhancement allegations. (RR. Vol. 5 at 98). Afterwards, the trial
informed the Appellant in front of the jury that his sentence would be enhanced as a
result of pleading true to the prior convictions. Id. The trial court, in the presence of
the jury, enhanced the range of punishment from 5 to 99 years to 25 years and up to
life. Id.
The Appellant’s sentencing hearing took place almost three months later on
October 23, 2014. (RR Vol 5 at 1). The trial judge, who could not remember having
taken the pleas of true from the defendant at the pretrial hearing, once again took the
pleas of true from the Appellant without the proper admonishments. (RR Vol. 5 at
6). The trial court sentenced the Appellant to 45 years in the Texas Department of
Criminal Justice. (RR Vol. 6 at 46).
8
ARGUMENT
I. THE PLEA OF TRUE TO PRIOR CONVICTIONS WAS NOT
KNOWING AND INTELLIGENT.
Prior conviction of a felony offense can be used by the court to enhance a
sentence after conviction of a subsequent offense. See Miles v. State, 357 S.W.3d
629, 634 (Tex. Crim. App. 2011). When determining if a plea was knowing and
voluntary the court must consider the totality of the circumstances in light of the
record. Griffin v. State, 703 S.W.2d 193, 196–97 (Tex. Crim. App. 1986). Prior to
accepting a guilty plea the court must admonish the defendant of the range of
punishment attached to the offense. Tex. Code. Crim. Proc. art 26.13 (a)(1).
The Texas Code of Criminal Procedure provides:
“In admonishing the defendant . . . , substantial compliance by the court
is sufficient, unless the defendant affirmatively shows that he was not
aware of the consequences of his plea and that he was misled or harmed
by the admonishment of the court.”
Tex. Code Crim. Proc. Ann. art. 26.13(c); VanNortrick v. State,
227 S.W.3d 706, 708 (Tex. Crim. App. 2007).
The court may not disregard this error since it affected the substantial rights
of the defendant. Tex. R. App. P. 44.2(b).
Even if substantial compliance can be found in the record, the defendant was
not aware of the consequences of his plea at the time it was taken and he was harmed
by the erroneous manner in which the court admonished him. In the instant case, the
9
judge did not inform the defendant of the possibility of having an enhanced sentence
when taking his plea of true in regards to the enhancement allegations. (RR Vol. 5
at 96-97). The defendant was admonished of the plea enhancements at a pretrial
hearing on August 4, 2014. (RR Vol 2 at 5). It was not until after the trial was
completed that the trial court took the defendant’s plea of true on paragraphs 2 and
3 of the indictment. At the conclusion of the two day trial, after the jury had rendered
its verdict, the trial court took the defendant’s plea of true to paragraphs 2 and 3 of
the indictment for the first time. Immediately after taking his plea of true in open
court the trial judge then informed the defendant in front of the jury that his sentence
would be enhanced. (RR Vol. 5 at 98). The court found that the range of punishment
was enhanced from 5 to 99 years to 25 years and up to life. (RR Vol. 5 at 98).
At the sentencing hearing on October 23, 2014 the trial the judge could not
remember ever having taken the plea of true from the defendant at the pretrial
hearing. (RR Vol. 5 at 6). The judge therefore took the pleas on the record again,
and again failed to admonish the defendant of the enhancement consequences
thereof. (RR Vol. 5 at 6). At the conclusion of the sentencing hearing the trial judge
sentenced the defendant to 45 years in the Texas Department of Criminal Justice.
(RR Vol. 6 at 46).
In light of the entire record, the admonishment which took place on August 4,
2014, which was not contemporaneous with either of the pleas of true, renders the
10
admonishment constitutionally deficient. The defendant cannot be said to have
made those pleas in a knowing and intelligent way when an entire 2 day trial had
been presented in between the admonishment of the sentence enhancement and the
initial taking of the pleas. It certainly cannot be said that the admonishments at the
pretrial hearing were sufficient to advise the defendant of the consequences of a plea
of true that occurred almost 3 months later at the sentencing hearing. The judge
herself could not even remember at the sentencing hearing on October 23, 2014 that
the pleas of true had been taken at the conclusion of the trial. It is unreasonable to
assume that the defendant, who was apprised of the sentencing enhancements
beforehand had a full and conscious understanding of the consequences of his plea
at the time it was taken. Furthermore, the defendant at the pretrial hearing on August
4, 2014 had rejected an offer that would have made the range of punishment between
15 and 35 years. (RR Vol. 2 at 10). Instead the defendant elected to go to jury trial.
Id. It is unreasonable to assume that a defendant who wished to go to jury trial
instead of accepting a possible 15 year punishment was suddenly at the close of trial
willing to stipulate to priors that would increase the minimum punishment to 25
years. The defendant was misled and harmed by the way he was admonished by the
court. Therefore the sentence should be reformed and should be reduced to the
extent that the sentence was increased due to the enhancement allegations.
11
II. THE STATE FAILED TO PRESENT EVIDENCE SUFFICIENT TO
PROVE THE ENHANCEMENT ALLEGATION BECAUSE THE
DEFENDANT NEVER PLED THAT EITHER OF THE PREVIOUS
CONVICTIONS WERE FINAL.
In order for the court to use prior felony convictions for enhancement
purposes, the conviction must be final. Beal v. State, 91 S.W.3d 794, 796
(Tex.Crim.App.2002). The Texas Penal Code provides that the defendant’s sentence
may be enhanced for prior felony convictions if:
“the defendant has previously been finally convicted of two felony
offenses, and the second previous felony conviction is for an offense
that occurred subsequent to the first previous conviction having become
final, on conviction the defendant shall be punished by imprisonment
in the Texas Department of Criminal Justice for life, or for any term of
not more than 99 years or less than 25 years.”
Texas Penal Code § 12.42 (4)(a)
The burden of proof is on the state to show that the prior conviction was
final and that the defendant was the person convicted of the previous offense.
Augusta v. State, 639 S.W.2d 481, 484 (Tex. Cr. App. 1982); Harvey v. State,
611 S.W.2d 108, 111 (Tex. Cr. App. 1981). An appealed conviction becomes
final on the date that the appellate court confirms the conviction. Beal supra,
at 795. Unlike a plea of guilty, a plea of true constitutes evidence sufficient to
prove the enhancement allegation. Dinn v State, 570 S.W.2d 910, 915 (Tex.
Cr. App. 1978); Harvey, supra. When a plea of true is entered, the State’s
burden of proof is satisfied for the purposes of proving an enhancement
12
allegation. Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984).
“Therefore, the fact that appellant entered a plea of “true” must be
affirmatively reflected by evidence in the record.” Id.
This case is unlike Casel v State, where a sister court recently held that a plea
of true was sufficient to support a finding of finality when the defendant specifically
pled that they were finally convicted of that offense. See Casel v. State, No. 07-12-
0106-CR, MEMORANDUM, 2012 WL 4210419 (Tex. App. - Amarillo, 9/20/12).1
The Defendant’s case is similar to that of Howard v. State, where the evidence
used to support the enhancement allegation was insufficient. Howard v. State, 429
S.W.2d 155 (Tex. Cr. App. 1968). There, the defendant elected court sentencing
and the record on appeal contained a stipulation by the defendant that he was the
same person convicted of the previous offense. The record on appeal also contained
a judgment stating that the defendant was “the same person previously convicted as
alleged in the indictment for enhancement of punishment”, and a sentence stating
that he was previously convicted. The Texas Court of Criminal Appeals held that
the trial court should have included the stipulation upon which it based its findings
in the record. Howard at 156.
1
Casel v. State, although unpublished, cites authoritative case law adopted by the courts.
13
There was even less evidence presented to support the enhancement
allegations in the instant case than in Howard. In the instant case, the record on
appeal contains an indictment which states the basis for the enhancement allegations.
(CR at 5). Paragraph 2 of the indictment states that the defendant was convicted of
burglary on December 12, 2009. Id. Paragraph 3 states that the defendant was
subsequently convicted of possessing a firearm, and also states that the charge in
Paragraph 2 was final at the time the conviction in Paragraph 3. Id. At the
conclusion of the jury trial the court took the defendant’s plea of true to Paragraphs
2 and 3 and read those paragraphs verbatim to the defendant.
The defendant pled true to those paragraphs at that time. (RR Vol. 5 at 97).
The trial court did not ask him if he was pleading true to those paragraphs because
they were true, but rather asked the defendant if he was pleading true because he was
“previously convicted as alleged and for no other reason”. (RR Vol. 5 at 97).
The instant case is therefore distinguishable from Nabors v. State, where
admission of the sentencing allegations were held to be an adequate basis for
enhancement when the defendant specifically stated that he was pleading true
because the “because the enhancement paragraphs were true and for no other
14
reason.” Nabors v. State, No. 12-00-00371-CR, 2002 WL 1362470, at *9 (Tex. App.
June 21, 2002). 2
The defendant never separately pled to the fact that the first enhancement
allegation was final at the time the second allegation occurred, and the court did not
ask him to admit on the record that he was the same person as mentioned in
paragraphs 2 and 3 of the indictment. The defendant never stated that he was
pleading true because the paragraphs in the indictment were true. He only stated
that he was pleading true because he was convicted. Therefore the defendant’s first
plea of true does not constitute sufficient evidence for the purposes of sentence
enhancement.
No other evidence was presented by the state to prove that the enhancement
allegation in Paragraph 2 was final at the time the offense in Paragraph 3 occurred.
Furthermore, the indictment did not specifically state that the defendant in this case
was the same person convicted of the offenses in Paragraphs 2 and 3. At trial the
jury did not find beyond a reasonable doubt that Paragraphs 2 and 3 were true, the
jury only found the defendant guilty as charged in Paragraph 1 of the indictment.
(RR Vol. 5 at 94).
2
Nabors v. State, although unpublished, cites authoritative case law adopted by the courts.
15
In October of 2014, at the outset of the sentencing hearing, the trial
judge again took the defendant’s plea on the enhancement allegations listed in the
indictment because she could not remember ever having taken the pleas in the first
place. (RR Vol. 6 at 6). The judge took the plea as follows:
“Now, you have paragraphs 2 and 3 which allege prior
convictions. In paragraph 2, it alleges that you were convicted in the
27th District Court of burglary of a habitation in 2009.
Paragraph 3 alleges the unlawful possession of a firearm by a
felon and that you were convicted in November of 2011 in the 426th.
So I’m going to ask you at this time: To those paragraphs how
do you plead, true or not true?”
(RR Vol. 6 at 6)
The defendant then pled true to the paragraphs as they were stated to him by
the judge. The judge did not inform the defendant that Paragraph 3 alleged that the
charge in Paragraph 2 was final at the time the subsequent offense occurred.
Furthermore, the judge never asked the defendant to plead specifically that the
charge in paragraph 3 occurred after the charge in paragraph 2 was finalized. No
evidence was offered by the state to prove that the offense in paragraph 2 was
finalized for the purposes of enhancing the defendant’s sentence under Texas Penal
Code § 12.42 (4)(a). There was no stipulation upon which the trial court made its
finding that the enhancement allegations in the indictment could be used to enhance
the defendant’s sentence. The court asked the defendant whether or not he was
pleading true because he was “convicted as alleged in each of those paragraphs”.
16
(RR Vol. 6 at 8). To this, the defendant replied in the affirmative. Once again the
defendant was never asked if he was pleading true because the entire paragraph was
true, he was only asked if he was pleading true because he had been convicted.
Therefore the defendant is entitled to reformation of the judgment and
sentence since the record does not reflect any evidence or stipulation to support
sentencing enhancement. The judgment and sentence should be reformed in a way
that eliminates references to the prior convictions as alleged in the indictment.
III. THE SENTENCE OF 45 YEARS VIOLATES THE
CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENT BECAUSE IT IS DISPORPORTIONATE
TO THE CRIME COMMITED.
The constitutional prohibition against cruel and unusual punishment is
guaranteed by the Eighth Amendment to the United States Constitution and Article
1, Section 13 of the Texas Constitution. Calhoun v. State, 214 S.W. 335 (Tex. Crim.
App. 1919); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). The
Eight Amendment to the United States Constitution provides that “excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” The Supreme Court of the United States has held that
“punishment is cruel and unusual if it is ‘grossly disproportionate to the crime’”. The
Texas Court of Criminal Appeals has held that if a sentence is within the range of
17
punishment allowable by statute, it nevertheless may be disproportionate to the
gravity of the offense. See Ex Parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim.
App. 2006).
At the time of sentencing, the Appellant was only 26 years old. (RR Vol. 5 at
47). If the Appellant were to serve the entire term of his sentence he would be over
70 years old at the time of his release. The evidence on the record shows that it was
the Appellant’s wife, Gini Taylor, who shot the victim the night of the incident. (RR
Vol. 4 at 32; RR Vol. 5 at 55). Furthermore the victim himself testified that it was
Gini Taylor who caused the injuries to his head by hitting him with a foreign object
(RR Vol. 4 at 31).
The punishment range the court selected was a minimum of 25 years and up
to life. Texas Penal Code § 12.42 (4)(a); (RR Vol. 5 at 98). Without the admission
of the plea of true the sentencing range would have been 5 to 99 years. Tex. Pen.
Code § 12.32 (a). In light of the fact that the pleas of true to the enhancement
allegations were invalid, the sentence is disproportionate to the crime committed.
When the minimum possible sentence was enhanced impermissibly from 5 years to
25 years by the trial court the punishment became disproportionate.
The court should also consider the fact that the plea of true to Paragraph 3 of
the indictment was not a plea of true to a crime of violence. Paragraph 3 of the
18
indictment was for felon in possession of a firearm, and not for a crime of violence.
(CR at 5).
The Appellant has a young daughter, who he is close to, and the imposition of
this sentence will deprive him of the opportunity to see her grow up. (RR Vol 6 at
28). The co-conspirator in this case acted willfully and independently and was the
sole cause of the most serious injuries sustained by the victim. The Appellant in this
case should not be bearing the brunt of the punishment for a crime committed by
another. One of the prior offenses used to enhance the Appellant’s sentence was not
a crime of violence. In light of the entire record, the sentence of 45 years was grossly
disproportionate to the offense committed. The Appellant therefore respectfully
requests that the court abate the length of his sentence to reflect his actual level of
culpability in the current case or remand the case for a new sentencing hearing.
IV. THE COURT ERRED BY ALLOWING THE APPELLANT’S WIFE
TO INVOKE HER FIFTH AMENDMENT RIGHT TO TESTIFY
AFTER MAKING INCRIMINATING STATEMENTS ON THE
WITNESS STAND.
The Sixth Amendment to the United States Constitution gives all defendants
in a criminal trial the right to confront the witness against them. United States
Constitution, Amendment VI. In Crawford v. Washington the Supreme Court has
held that the right to confrontation applies to in court testimony and out-of-court
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statements that are testimonial in nature. Crawford v. Washington, 541 U.S. 36, 51
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Testimonial hearsay is inadmissible
unless the declarant is unavailable and the defendant was given a prior opportunity
to cross examine. Id. at 68, 124 S. Ct. 1354. Testimonial hearsay cannot be admitted
for the purpose of proving the truth of the matter asserted. Crawford, 541 U.S. at
59, n.9, 124 S. Ct. 1354. Whether an out-of-court statement is testimonial in nature
is a question of law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App.
2008).
A party is entitled to waive their Fifth Amendment privilege against self-
incrimination. “Thus if the witness himself elects to waive his privilege, as he may
doubtless do, since the privilege is for his protection and not for the protection of
other parties, and discloses criminal connections, he is not permitted to stop, but
must go on and make full disclosure.” In re Enron Corp. Sec., Derivative & Erisa
Litig., 762 F. Supp. 2d 942, 961 (S.D. Tex. 2010) citing McCarthy v. Arndstein, 262
U.S. 355, 358–59, 43 S. Ct. 562, 67 L. Ed. 1023 (1923) (same), rehearing granted,
263 U.S. 676, 44 S. Ct. 33, 68 L. Ed. 501 (1923), aff'd, 266 U.S. 34, 45 S. Ct. 16, 69
L. Ed. 158 (1924); Rogers v. U.S., 340 U.S. 367, 373–74, 71 S. Ct. 438, 95 L. Ed. 344
(1951) (“Disclosure of a fact waives the privilege as to details”; “[W]here a witness
has voluntarily answered as to materially [in] criminating facts . . . he cannot stop
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short and refuse further explanation, but must disclose fully what he attempted to
relate.”).
In this instant case the co-defendant invoked her Fifth Amendment right
not to testify at the Appellant’s trial because her case was then currently on appeal.
(RR Vol. 5 at 29, 101). After invoking her Fifth Amendment right not to testify, the
co-defendant admitted in open court on the witness stand that she had written letters
to the Appellant. (RR Vol. 5 at 31). When asked whether those letters expressed to
the Appellant what her testimony would be at trial, the co-defendant refused to
answer. (RR Vol. 5 at 31).
Subsequently, when the Appellant testified on his own behalf at trial, the
Appellant attempted to testify as to the contents of one of the letters. The prosecution
objected on the grounds of hearsay, and the objection was sustained. (RR Vol. 5 at
45). The Appellant was seeking to establish that his wife herself had destroyed the
gun that she used to shoot the victim. Id. At the sentencing hearing, the Appellant’s
mother testified that the Appellant’s wife called her and admitted full responsibility
for the shooting. (RR Vol. 6 at 25). Had the Appellant’s wife been instructed to
answer the questions about the contents of the letter sent to the Appellant after the
crime had occurred, there is a substantial likelihood that the Appellant would have
been acquitted.
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Since the trial court allowed the Appellant’s wife to testify as to the existence
of the letters and then did not instruct her to answer the questions concerning their
contents, the Appellant’s right to cross examine the witness was violated. This
stripped the Appellant of the ability to present evidence of his strongest defense,
which was that Gini Taylor, the co-defendant willfully and independently shot the
victim without any instruction to do so by the Appellant and then attempted to
destroy the evidence. Both the letters to the defendant and the phone call to his
mother were out-of-court testimonial hearsay statements that should have subjected
the Appellant’s wife to cross-examination. By admitting on the stand that she wrote
letters to the Appellant, she effectively waived her privilege against self-
incrimination. The trial court was therefore required to instruct the witness to answer
as to the contents of all incriminating communications since she revealed the
existence of the communications on the witness stand.
The trial court by way of not instructing the witness to answer questions after
her waiver of her Fifth Amendment rights, violated the Appellant’s right to
confrontation and also to a fair trial. Furthermore, the court erred in sustaining the
hearsay objection of the State when the Appellant attempted to testify as to the
contents of the letters himself. Since the Appellant was not provided with the right
to confront a witness against him, and was not provided with a fair trial, Appellant’s
sentence should be vacated and a new trial should be granted.
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PRAYER FOR RELIEF
Based upon the foregoing arguments and legal authority, the Appellant, Devin
Simmons, respectfully requests that this Honorable Court set aside the Sentence
delivered in this cause, remand for a new trial at the punishment phase, and grant
any such other and further relief as this Honorable Court deems just and proper.
DATED this 22nd day of May, 2015.
Respectfully submitted,
/s/ Robert L. Sirianni, Jr.
Robert L. Sirianni, Jr., Esquire
Texas Bar No. 24086378
Law Office of Robert L. Sirianni, Jr.
201 N. New York Ave. Suite 200
Winter Park, FL 32789
Telephone: (407) 388.1900
Facsimile: (407) 622-1511
Robert@brownstonelaw.com
Counsel for Appellant
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing brief complies with the type-volume
limitation of Texas Rule of Appellate Procedure 9.4(i)(1). Further, this brief
complies with the type-face and type-style requirements of Texas Rule of Appellate
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Procedure 9.4 because this brief has been prepared in a proportionately spaced
typeface using Microsoft Word 2010 in 14-point Times New Roman Font.
/s/ Robert L. Sirianni, Jr.
Robert L. Sirianni, Jr., Esquire
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing brief complies with the type-volume
limitation of Texas Rule of Appellate Procedure 9.4(i)(1), the foregoing Initial Brief
was created using Microsoft Word, is 24 pages in length, and contains 5, 349 words,
excluding the caption, cover page, statement regarding oral argument, table of
contents, table of authorities, certificate of service, and certificate of compliance,
and is filed as a PDF text-searchable document. Further, this brief complies with the
type-face and type-style requirements of Texas Rule of Appellate Procedure 9.4
because this brief has been prepared in a proportionately spaced typeface using
Microsoft Word in 14-point Times New Roman Font.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via U.S. First Class Mail, this 22nd day of May, 2015, to Terry E. Clark,
Office of the District Attorney, 1201 Huey Road, Belton, Texas 76513-0540.
/s/ Robert L. Sirianni, Jr.
Robert L. Sirianni, Jr., Esquire
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