Ward, Derek Clinton ( 2015 )

PD-1573-15
PD-1573-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/4/2015 12:56:15 PM
Accepted 12/4/2015 1:45:27 PM
ABEL ACOSTA
NO.
__________________
CLERK
IN
THE
COURT
OF
CRIMINAL
APPEALS
OF
TEXAS
_________________________________________________________
DEREK
CLINTON
WARD,
Appellant
V.
THE
STATE
OF
TEXAS,
Appellee
_________________________________________________________
APPELLANT’S
PETITION
FOR
DISCRETIONARY
REVIEW
__________________________________________________________
On
Review
from
Cause
No.
06-­‐15-­‐00110-­‐CR
In
the
Court
of
Appeals
For
the
Sixth
District
at
Texarkana
__________________________________________________________
On
appeal
from
Cause
No.
42,433-­‐B
In
the
124th
District
Court
of
Gregg
County,
Texas
Honorable
Alfonso
Charles,
Judge
Presiding
HOUGH-­‐LEWIS
(“LEW”)
DUNN
ATTORNEY
AT
LAW
P.O.
BOX
2226
December 4, 2015 LONGVIEW,
TX
75606
Tel.
903-­‐757-­‐6711
Fax
903-­‐757-­‐6712
Email:
dunn@texramp.net
Counsel
for
Appellant
APPELLANT
RESPECTFULLY
REQUESTS
ORAL
ARGUMENT
IDENTITIES
OF
JUDGE,
PARTIES,
AND
COUNSEL
Pursuant
to
Rule
68.4(a),
Texas
Rules
of
Appellate
Procedure,
a
complete
list
of
the
names
of
the
trial
judge,
all
parties,
and
counsel
are
as
follows:
Trial
Judge:
Honorable
Alfonso
Charles
Presiding
Judge,
124th
District
Court
Gregg
County,
Texas
Attorneys
for
Appellant:
Hough-­‐Lewis
(“Lew”)
Dunn
Counsel
on
Petition
for
Discretionary
Review
P.O.
Box
2226
Longview,
TX
75606
Tim
Cone
Counsel
on
Direct
Appeal
P.O.
Box
413
Gilmer,
TX
75644
Lance
R.
Larison
Trial
Counsel
Molly
Larison
Pre-­‐Trial
Counsel
P.O.
Box
232
Longview,
TX
75606
Attorneys
for
the
State:
Carl
Dorrough,
Criminal
District
Attorney
101
East
Methvin,
Suite
333
Longview,
TX
75606
Christopher
A.
Parker
Assistant
Criminal
District
Attorney
Trial
Counsel
Zan
Colson
Brown
Assistant
Criminal
District
Attorney
State’s
Counsel
on
Appeal
ii
TABLE
OF
CONTENTS
TABLE
OF
CONTENTS
…………………….....................................................
iii
INDEX
OF
AUTHORITIES
......................................................................
v
STATEMENT
REGARDING
ORAL
ARGUMENT
……………………………………
vii
STATEMENT
OF
THE
CASE....................................................................
1
STATEMENT
OF
PROCEDURAL
HISTORY...............................................
2
QUESTIONS
PRESENTED
…………….………………………………......................
2
FIRST
QUESTION
PRESENTED
FOR
REVIEW
DID
THE
COURT
OF
APPEALS
ERR
IN
FINDING
NOTHING
FUNDAMENTALLY
ERROREOUS
IN
THE
CONDUCT
OF
THE
TRIAL
COURT
UNDER
ALMANZA,
WHEN
THE
RECORD
SHOWED
THAT
THE
TRIAL
COURT
ADOPTED
THE
STATE’S
POSITION
THAT
ECONOMIC
CONSIDERATIONS
CONTROLLED
THE
OUTCOME
OF
SENTENCING?
SECOND
QUESTION
PRESENTED
FOR
REVIEW
DID
THE
COURT
OF
APPEALS
ERR
IN
FAILING
TO
FIND
THAT
THE
TRIAL
COURT
HAD,
IN
ADOPTING
THE
STATE’S
POSITION
THAT
ECONOMIC
CONSIDERATIONS
CONTROLLED
THE
OUTCOME
OF
SENTENCING,
ABROGATED
THE
FOURTEENTH
AMENDMENT
DUE
PROCESS
AND
EQUAL
PROTECTION
CONCERNS
FOUND
IN
BEARDEN
V.
GEORGIA?
iii
Reason
for
Granting
Review
In
reaching
its
decision,
the
Court
of
Appeals
failed
to
follow
the
precedent
of
Almanza
v.
State,
686
S.W.2d
157
(Tex.
Crim.
App.
1986
(op.
on
reh’g),
and
it
ignored
principles
of
Fourteenth
Amendment
Due
Process
and
Equal
Protection
of
the
Law
that
underlie
the
ability
to
pay
restitution,
found
in
Bearden
v.
Georgia,
461
U.S.
660
(1983).
ARGUMENT
AND
AUTHORITIES.................................................................
3
FACTS
………………………………………………………………………………………………..
4
LEGAL
ANALYSIS
………………………………………………………………………………..
9
PRAYER
FOR
RELIEF...................................................................................
19
CERTIFICATE
OF
SERVICE.........................................................................
20
CERTIFICATE
OF
COMPLIANCE
…………………………………………………………
20
APPENDIX
Ward
v .
S tate,
N o.
0 6-­‐15-­‐00110-­‐CR
( Tex.
A pp.
–
T exarkana,
delivered
N ovember
1 0,
2 015)(Mem.
O p.)(not
d esignated
f or
publication)
iv
INDEX
OF
AUTHORITIES
CASES
Almanza
v.
State,
686
S.W.2d
157
…………………………………………..
3,
4,
10,
11
(Tex.
Crim.
App.
1984)(op.
on
reh’g)
Barton
v.
State,
21
S.W.3d
287
(Tex.
Crim.
App.
2000)
……………………………
17
Bearden
v.
Georgia,
461
U.S.
660
(1983)
……………………
3,
4,
12,
13,
14,
15
Griffin
v.
Illinois,
351
U.S.
12
(1956)
……………………………………………………..
13
Lemos
v.
State,
27
S.W.3d
42
(Tex.
App.
–
San
Antonio
2000,
pet.
ref’d)
..
17
Lively
v.
State,
338
S.W.3d
140
(Tex.
App.
–
Texarkana
2011,
no
pet.)
14
Moreno
v.
State,
900
S.W.2d
357
(Tex.
App.
–
Texarkana
1995,
no
pet.)
10
Miller
v.
State,
343
S.W.3d
499
(Tex.
App.
–
Waco
2011,
pet.
ref’d)
……
17
Tate
v.
Short,
401
U.S.
395
(1971)
……………………………………………………….
13
Williams
v.
Illinois,
399
U.S.
235
(1970)
……………………………………………..
13
OPINIONS
JM-­‐917
(1988)
……………………………………………………………………………………
14
STATUTES
U.
S.
CONSTITUTION
Fourteenth
Amendment
Due
Process
……………
3,
4,
12,
13,
14,
15,
16,
18
v
STATUTES
(CONT’D)
U.
S.
CONSTITUTION
Fourteenth
Amendment
Equal
Protection
of
the
Law
….
3,
4,
12,
13,
14,
15,
16,
18
TEX.
CONST.
ART.
1,
§19
…………………………………………………………………………………………
9
ART.
1,
§30(b)(4)
…………………………………………………………………………………
17
CODES
ART.
42.037(k),
TEX.
CODE
CRIM.
P.
……………………………………………………..
17
ART.
42.12
§21(c),
TEX.
CODE
CRIM.
P.
…………………………………………………
13
TEX.
LABOR
CODE,
§201
et.
seq.
…………………………………………………
11
TEX.
PENAL
CODE
§
31.03(e)(4)(A)
………………………………………………………
1
RULES
TEX.
R.
APP.
P.
33.1(a)(1)
and
(2)
………………………………………………………..
9
OTHER
MAGNA
CARTA,
Article
40
(1215)
………………………………………………………
14
vi
STATEMENT
REGARDING
ORAL
ARGUMENT
The
opinion
of
the
Court
of
Appeals
impermissibly
narrows
the
precedent
of
Almanza
on
the
concept
of
what
is
fundamentally
erroneous.
Moreover,
the
ability
to
pay
restitution,
rooted
in
concepts
of
Due
Process
and
Equal
Protection,
implicates
fundamental
rights
that
cannot
be
disregarded
and
set
aside
when
the
court
of
appeals
is
called
upon
to
review
the
actions
of
the
trial
court
in
assessing
punishment.
The
opinion
of
the
court
of
appeals
sets
a
questionable
precedent
on
the
issues
of
judicial
impartiality
and
of
restitution
in
sentencing,
something
that
affects
victims
and
defendants
statewide.
Oral
argument
will
help
delineate
those
concerns.
vii
NO.
__________________
IN
THE
COURT
OF
CRIMINAL
APPEALS
OF
TEXAS
_________________________________________________________
DEREK
CLINTON
WARD,
Appellant
V.
THE
STATE
OF
TEXAS,
Appellee
_________________________________________________________
APPELLANT’S
PETITION
FOR
DISCRETIONARY
REVIEW
__________________________________________________________
TO
THE
HONORABLE
JUDGES
OF
THE
COURT
OF
CRIMINAL
APPEALS:
NOW
COMES
Derek
Clinton
Ward,
Appellant
in
this
matter,
by
and
through
his
attorney
of
record,
Hough-­‐Lewis
Dunn,
and
pursuant
to
the
provisions
of
Texas
Rules
of
Appellate
Procedure
66,
et
seq,
urges
this
Court
to
grant
discretionary
review,
and
in
support
will
show
as
follows:
STATEMENT
OF
THE
CASE
Appellant
was
indicted
for
the
offense
of
theft
of
property,
valued
at
an
amount
not
less
than
$1,500
but
no
more
than
$20,000,
namely,
a
welding
machine,
a
state
jail
felony.
TEX.
PENAL
CODE
§31.03(e)(4)(A)
(West
2012)
(CR
4).
Appellant
waived
jury
trial
and
entered
a
plea
of
1
“guilty”
to
the
trial
court
on
or
about
April
9,
2015
(RR
4:
4),
and
thereafter
on
May
21,
2015,
was
sentenced
to
22
months
in
a
state
jail
facility
(RR
5:
41)(CR
50).
Appellant
timely
filed
his
pro
se
“Notice
of
Appeal”
on
or
about
June
10,
2015
(CR
37).
STATEMENT
O F
P ROCEDURAL
H ISTORY
Petitioner
perfected
appeal
to
the
Sixth
Court
of
Appeals
in
Texarkana.
The
Sixth
Court
of
Appeals
affirmed
the
judgment
of
the
trial
court,
issuing
its
Memorandum
Opinion
in
Ward
v.
State,
No.
06-­‐15-­‐
00110-­‐CR,
(Tex.
App.
–
Texarkana,
delivered
November
10,
2015)
(Mem.
Op.)
(not
designated
for
publication).
No
Motion
for
Rehearing
was
filed.
From
that
affirmance
Appellant
now
brings
this
Petition
for
Discretionary
Review.
GROUNDS
FOR
REVIEW
QUESTIONS
PRESENTED
FIRST
QUESTION
PRESENTED
FOR
REVIEW
DID
THE
COURT
OF
APPEALS
ERR
IN
FINDING
NOTHING
FUNDAMENTALLY
ERRONEOUS
IN
THE
CONDUCT
OF
THE
TRIAL
COURT
UNDER
ALMANZA,
WHEN
THE
RECORD
SHOWED
THAT
THE
TRIAL
COURT
ADOPTED
THE
STATE’S
POSITION
THAT
ECONOMIC
CONSIDERATIONS
CONTROLLED
THE
OUTCOME
OF
SENTENCING?
2
SECOND
QUESTION
PRESENTED
FOR
REVIEW
DID
THE
COURT
OF
APPEALS
ERR
IN
FAILING
TO
FIND
THAT
THE
TRIAL
COURT
HAD,
IN
ADOPTING
THE
STATE’S
POSITION
THAT
ECONOMIC
CONSIDERATIONS
CONTROLLED
THE
OUTCOME
OF
SENTENCING,
ABROGATED
THE
FOURTEENTH
AMENDMENT
DUE
PROCESS
AND
EQUAL
PROTECTION
CONCERNS
FOUND
IN
BEARDEN
V.
GEORGIA?
Reason
for
Granting
Review
In
reaching
its
decision,
the
Court
of
Appeals
failed
to
follow
the
precedent
of
Almanza
v.
State,
686
S.W.2d
157
(Tex.
Crim.
App.
1986
(op.
on
reh’g),
and
it
ignored
principles
of
Fourteenth
Amendment
Due
Process
and
Equal
Protection
of
the
Law
that
underlie
the
ability
to
pay
restitution,
found
in
Bearden
v.
Georgia,
461
U.S.
660
(1983).
ARGUMENT
AND
AUTHORITIES
QUESTIONS
PRESENTED
FOR
REVIEW
FIRST
QUESTION
PRESENTED
FOR
REVIEW
DID
THE
COURT
OF
APPEALS
ERR
IN
FINDING
NOTHING
FUNDAMENTALLY
ERROREOUS
IN
THE
CONDUCT
OF
THE
TRIAL
COURT
UNDER
ALMANZA,
WHEN
THE
RECORD
SHOWED
THAT
THE
TRIAL
COURT
ADOPTED
THE
STATE’S
POSITION
THAT
ECONOMIC
CONSIDERATIONS
CONTROLLED
THE
OUTCOME
OF
SENTENCING?
3
SECOND
QUESTION
PRESENTED
FOR
REVIEW
DID
THE
COURT
OF
APPEALS
ERR
IN
FAILING
TO
FIND
THAT
THE
TRIAL
COURT
HAD,
IN
ADOPTING
THE
STATE’S
POSITION
THAT
ECONOMIC
CONSIDERATIONS
CONTROLLED
THE
OUTCOME
OF
SENTENCING,
ABROGATED
THE
FOURTEENTH
AMENDMENT
DUE
PROCESS
AND
EQUAL
PROTECTION
CONCERNS
FOUND
IN
BEARDEN
V.
GEORGIA?
Reason
for
Granting
Review
In
reaching
its
decision,
the
Court
of
Appeals
failed
to
follow
the
precedent
of
Almanza
v.
State,
686
S.W.2d
157
(Tex.
Crim.
App.
1986
(op.
on
reh’g),
and
it
ignored
principles
of
Fourteenth
Amendment
Due
Process
and
Equal
Protection
of
the
Law
that
underlie
the
ability
to
pay
restitution,
found
in
Bearden
v.
Georgia,
461
U.S.
660
(1983).
[Appellant
will
address
both
the
First
and
Second
Questions
here.]
The
Court
of
Appeals
opinion
sets
out
the
facts
in
its
opinion.
Ward
v.
State,
No.
06-­‐15-­‐00110-­‐CR,
(Tex.
App.
–
Texarkana,
delivered
November
10,
2015)
(Mem.
Op.)
(not
designated
for
publication).
FACTS
Briefly
summarizing
the
record,
however:
Appellant
pleaded
guilty
to
the
indictment
of
theft
of
a
welding
machine
(RR
4:
4).
The
controversy
was
confirmed
at
the
sentencing
hearing
where
the
victim
(Appellant’s
former
employer),
one
Newberry
(RR
5:
5),
testified
about
alleged
(but
unsubstantiated)
charges
to
credit
cards
(RR
5:
6),
and
4
Appellant’s
taking
and
pawning
of
a
welding
machine
(RR
5:
7-­‐8);
also
how
Newberry
withheld
Appellant’s
paycheck
in
connection
with
his
allegations
about
the
credit
card
abuse
(RR
5:
12).
Appellant
testified
that,
though
he
had
worked
for
nine
months,
he
had
recently
been
laid
off
with
the
turn-­‐down
in
the
oil
industry
(RR
5,
13-­‐14);
had
filed
for
unemployment
(RR
5:
14-­‐15);
had
dependents
he
was
trying
to
support
(RR
5:
15-­‐16);
had
been
through
some
physical
as
well
as
mental
difficulties
since
the
date
of
the
offense
back
in
September
2012
(RR
5:
18-­‐19).
Appellant
stated
that
he
took
the
welding
machine
because
he
was
“sore
about”
how
Newberry
had
withheld
his
wages
in
the
controversy
over
the
alleged
credit
card
charges,
something
he
denied
doing
(RR
5:
22-­‐23).
Appellant,
with
the
help
of
his
mother,
had
brought
$1,000
to
court
that
day
to
be
paid
toward
restitution
(RR
5:
27).
Under
questioning
from
the
trial
court,
Appellant
stated
that
he
had
lost
his
job
on
April
11,
2015,
about
40
days
before
he
came
to
that
session
of
court
for
sentencing
on
May
21
,
but
had
filed
for
unemployment
benefits
(RR
5:
28).
Age
36,
he
had
had
four
spinal
surgeries
in
his
young
life
(RR
5:
17).
5
At
that
point
the
trial
court
questioned
Appellant,
and
had
this
comment
about
Appellant’s
filing
for
unemployment:
“And
so
knowing
that
the
State’s
recommendation
is
going
to
be
two
years
State
Jail,
you
decide
instead
of
finding
a
job
to
collect
restitution,
that
you’re
going
to
take
a
vacation
for
a
month
and
a
half”
(RR
5:
28).
Finally,
Mrs.
Linda
Lee
(Appellant’s
mother)
testified
(RR
5:
31
ff).
She
spoke
about
the
efforts
Appellant
had
made
to
turn
his
life
around
and
accept
his
responsibilities
to
his
dependents
and
to
try
to
come
up
with
restitution,
but
that
his
chances
for
employment
in
the
oil
industry
had
been
affected
by
the
downturn;
that
she
had,
through
her
employment,
the
expectation
of
having
the
entire
amount
of
restitution
available
within
the
next
month
(RR
5:
32-­‐33).
At
instances
during
the
proceedings,
the
State
made
statements
that
tied
its
recommendation
for
probation
to
a
specific
amount
of
money
to
be
paid
in
restitution.
There
is
this,
from
the
hearing
on
the
guilty
plea
of
April
9,
2015,
in
anticipation
of
the
date
set
for
sentencing:
6
STATE:
And,
Your
Honor,
in
this
case,
Mr.
Larison
and
I
have
spoken,
as
well
as
with
the
victim,
Mr.
Newberry,
there’s
an
expectation
that
a
certain
figure
will
be
brought
to
court
that
date.
And
that
is
the
basis
of
what
our
agreement
or
future
agreement
is
based
upon,
Your
Honor.
(RR
4:
12)
See
also:
RR
5:
9,
where
State’s
counsel,
in
questioning
Newberry
says:
“…we
would
either
accept
the
restitution
and
reach
a
plea
agreement
for
probation
or
the
State
was
going
to
ask
for
two
years
in
State
Jail.”
Then
in
cross-­‐examining
Appellant
(RR
5:
24),
there
was
this
exchange
with
State’s
counsel:
STATE:
What
did
you
understand
the
State
was
going
to
do
at
this
hearing?
APPELLANT:
That
the
sentence
would
be
given.
STATE:
If
you
brought
the
money,
the
restitution
owed
on
the
case,
the
State
was
going
to
agree
to
probation;
is
that
correct?
APPELLANT:
Yes,
sir.
STATE:
If
you
didn’t
bring
the
money,
what
was
the
State
going
to
recommend?
APPELLANT:
Well,
the
Judge
–
from
my
understanding,
the
Judge
would
then
have
it
either
which
way,
probation
or
–
7
STATE:
You
knew
the
State
would
be
asking
for
prison,
right?
I
don’t
know
if
you
remember
it
or
not?
APPELLANT:
I
don’t.
STATE:
You
understood
that
was
definitely
what
you
were
facing,
what
you
were
risking?
You
were
facing
jail
time
if
you
didn’t
bring
the
restitution,
you
know
that,
right?
APPELLANT:
I
knew
that
was
a
possibility.
At
the
guilty
plea
hearing
the
trial
court
at
first
stated
that
it
was
not
bound
by
any
such
agreements,
but
then
went
on
to
state:
“Now,
if
you
do
bring
the
restitution,
then
that
may
put
this
in
a
different
situation.”
(RR
4:
13).
At
the
sentencing
hearing,
the
trial
court
stated
(referring
to
the
guilty
plea):
“The
plea
was
based
on
some
possibilities
including
restitution
where
the
State
would
have
a
different
offer.”
(RR
5:
4).
When
it
came
time
to
assess
a
sentence,
the
trial
court
stated:
“When
you
pled
guilty
on
April
the
9th,
you
knew
what
the
State’s
recommendation
was.
You
knew
that
your
obligation
under
that
recommendation
was
to
come
to
Court
today
with
$3,750
and
the
State
would
recommend
a
probated
sentence.
You
personally
came
to
Court
with
zero
dollars.”
(RR
5:
39).
The
trial
court
went
on
to
say:
“I
promise
8
you
if
you
had
gone
out
and
flipped
burgers
and
showed
me
you
were
working,
I
would
make
a
different
decision
than
I’m
about
to
make.
But
you
didn’t.
No,
rest
my
back.
I’m
going
to
see
how
much
unemployment
pays
me
instead
of
going
out
and
working.
That’s
the
problem
with
today’s
society.
We
have
a
lot
of
people
who
are
willing
to
see
what
the
government
is
going
to
pay
them
instead
of
working”
(RR
5:
41).
LEGAL
ANALYSIS
On
appeal
Appellant’s
sole
point
was
this:
that
the
trial
court
did
not
act
as
a
neutral
and
detached
fact
finder,
taking
on
the
role
of
prosecutor,
thereby
violating
Fourteenth
Amendment
Due
Process
and
Texas
Due
Course
of
the
Law,
TEX.
CONST.
ART.
1
§19.
The
Court
of
Appeals
reached
two
conclusions
essential
to
its
determination
of
the
appeal:
First,
it
determined
that
the
issue
raised
by
Appellant
was
not
preserved
by
objection
and
a
ruling
at
trial
,
as
required
by
TEX.
R.
APP.
P.
33.1(a)(1)
and
(2)
(Opinion,
p.
6).
Second,
it
held
that
the
conduct
of
the
trial
court
was
not
such
that
it
would
have
qualified
as
“fundamentally
erroneous”
under
the
standards
9
found
in
Almanza
v.
State,
686
S.W.2d
157
(Tex.
Crim.
App.
1984)(op.
on
reh’g)
(Opinion,
pp.6-­‐7).
Elaborating
further,
the
Court
of
Appeals
cited
to
Moreno
v.
State,
900
S.W.2d
357,
359
(Tex.
App.
–
Texarkana
1995,
no
pet.)
for
the
proposition
that
the
lack
of
an
objection
(and
ruling
thereon)
is
not
necessary
for
appellate
review
if
the
alleged
conduct
of
the
trial
court
was
“so
harmful
that
the
defendant
was
denied
a
fair
trial”
(Opinion,
p.
7).
The
Court
of
Appeals,
using
that
as
a
standard,
found
that
the
comments
of
the
trial
court
in
the
case
at
bar
“were
neither
egregiously
harmful
nor
did
they
operate
to
deny
Ward
a
fair
trial”
(id.).
After
a
review
of
the
evidence
from
the
sentencing
hearing,
the
Court
of
Appeals
concluded
that
the
trial
court
did
not
abandon
its
role
and
act
as
advocate
for
the
State
(Opinion,
p.
8).
However,
the
Court
of
Appeals
failed
to
delve
into
the
overriding
concerns,
both
from
the
State
and
also
the
trial
court,
with
the
economic
considerations
that
dominated
the
direction
and
outcome
of
the
sentencing
hearing.
Indeed,
the
trial
court
did,
in
fact,
abandon
its
neutral
and
detached
role,
and
justified
its
sentencing
on
the
very
economic
posture
that
the
State
had
made
its
hallmark
for
either
probation
or
jail
time.
10
Contrary
to
allowable
conduct
of
filing
for
unemployment
benefits,
something
sanctioned
and
encouraged
under
State
law
(see,
TEX.
LABOR
CODE,
201
et
seq.),
the
trial
court
viewed
that
as
somehow
akin
to
“taking
a
vacation”,
concluding
with
the
following
remark:
“That’s
the
problem
with
today’s
society.
We
have
a
lot
of
people
who
are
willing
to
see
what
the
government
is
going
to
pay
them
instead
of
working.”
The
sum
total
of
that
sort
of
rhetoric
and
its
disregard
for
a
legitimate
resource
for
those
who
are
unemployed,
the
orientation
of
the
trial
court
adopting
the
State’s
stance
on
how
the
sentencing
turned
on
the
question
of
economics:
in
its
totality
it
qualifies
as
Almanza
fundamental
error.
Both
the
State
and
the
trial
court
based
the
possibility
of
probation
in
this
case
on
economic
considerations,
without
regard
to
the
financial
circumstances
of
Appellant.
Each
of
them
said
that
probation
was
dependent
on
restitution
being
paid
by
Appellant.
The
trial
court
denounced
Appellant
for
filing
for
unemployment
compensation,
though
such
a
step
is
certainly
approved
of
by
the
Legislature
as
an
appropriate
remedy
for
joblessness
by
the
statutes
of
our
State.
See,
TEX.
LABOR
CODE,
201
et
seq.
By
so
doing,
fundamental
11
Fourteenth
Amendment
Due
Process
and
Equal
Protection
considerations
were
ignored,
resulting
in
fundamental
error.
That
error
was
compounded
by
the
fact
that
nowhere
in
Newberry’s
testimony
did
he
offer
a
figure
on
the
amount
of
restitution,
as
promised
earlier
by
the
State.
Economic
considerations
underlie
the
process
of
determining
whether
or
not
a
defendant
has
complied
with
the
terms
of
probation.
The
lead
case
is
Bearden
v.
Georgia,
461
U.S.
660
(1983).
There
the
U.S.
Supreme
Court
held
that,
“if
the
State
determines
a
fine
or
restitution
to
be
the
appropriate
and
adequate
penalty
for
the
crime,
it
may
not
thereafter
imprison
a
person
solely
because
he
lacked
the
resources
to
pay
it.”
Id.,
at
667-­‐68.
And
then
further:
“Only
if
alternate
measures
are
not
adequate
to
meet
the
State’s
interests
in
punishment
and
deterrence
may
the
court
imprison
a
probationer
who
has
made
bona
fide
efforts
to
pay.
To
do
otherwise
would
deprive
the
probationer
of
his
conditional
freedom
because,
through
no
fault
of
his
own,
he
cannot
pay
the
fine.
Such
a
deprivation
would
be
contrary
to
the
fundamental
fairness
required
by
the
Fourteenth
Amendment.”
Id.,
at
672-­‐73.
12
In
Bearden
v.
Georgia,
the
Supreme
Court
was
not
writing
on
a
blank
slate
on
the
issue
of
how
economic
considerations
can
impinge
upon
the
Due
Process
and
Equal
Protection
rights
of
a
defendant.
Precedents
included
Williams
v.
Illinois,
399
U.S.
235
(1970)
(holding:
State
cannot
subject
a
certain
class
of
convicted
defendants
to
a
period
of
imprisonment
beyond
the
statutory
maximum
solely
because
they
are
too
poor
to
pay
the
fine)
and
Tate
v.
Short,
401
U.S.
395
(1971)
(holding:
State
cannot
convert
a
fine
imposed
fine-­‐only
statute
into
a
jail
term
solely
because
the
defendant
is
indigent
and
cannot
immediately
pay
the
fine
in
full).
See
also,
Griffin
v.
Illinois,
351
U.S.
12
(1956)
(holding:
State
could
not
deny
appellate
review
to
those
who
were
indigent
but
grant
it
to
those
who
could
afford
a
trial
transcript).
Writing
for
the
majority,
Justice
O’Connor
found
that
“Due
Process
and
equal
protection
principles
converge
in
the
Court’s
analysis
in
these
cases”
Bearden
v.
Georgia,
at
665.
Those
constitutional
principles
are
codified
in
ART.
42.12
§21(c),
TEX.
CODE
CRIM.
P.,
where
probation
revocation
is
prohibited
for
failure
to
pay
money,
and
where
the
burden
of
proof
is
on
the
State
to
prove
the
ability
to
pay,
coupled
with
a
failure
to
pay.
It
has
been
held
that
even
a
plea
of
“true”
to
an
allegation
for
13
revocation
does
not
waive
a
Bearden
v.
Georgia
violation.
See,
Lively
v.
State,
338
S.W.3d
140,
145
(Tex.
App.
–
Texarkana
2011,
no
pet.).
Appellant
contends
that
the
Court
of
Appeals
committed
a
two-­‐fold
failure:
first
it
failed
to
see
that
the
trial
court
did
abandon
its
neutral
position
when
it
made
economic
considerations
the
overriding
basis
upon
which
it
determined
sentence
and,
second,
it
failed
to
recognize
a
nonwaivable
right
at
issue:
namely,
that
a
person’s
freedom
is
not
dependent
upon
whether
or
not
a
person
can
pay
money.
That
is
the
core
consideration
in
Bearden
v.
Georgia,
embedded
in
Fourteenth
Amendment
Due
Process
considerations,
as
well
as
in
the
Equal
Protection
Clause.
Id.,
at
665.
Going
back
for
centuries,
there
is
a
principle
of
English
law
found
in
MAGNA
CARTA,
Article
40
(2015):
“To
no
one
will
we
sell,
to
no
one
deny
or
delay
right
or
justice.”1
In
an
opinion
holding
unconstitutional
a
statute
that
imposed
a
$10
fee
for
the
dismissal
of
a
charge
of
failure
to
maintain
proof
of
financial
responsibility
for
those
who
were
innocent
of
the
offense,
Attorney
General
Mattox
cited
to
MAGNA
CARTA,
Article
40,
saying
that
the
statute
was
“contrary
to
our
notions
of
due
process
and
the
law
of
the
land
since
Magna
Carta.”
TEX.
ATT’Y
GEN.
OP.
NO.
JM-­‐917
(1988).
1
“Nulli
vendemus,
nulli
negabimus
aut
differemus
rectum
aut
justiciam.”
14
Admittedly,
Bearden
v.
Georgia
was
a
case
that
focused
on
probation
revocation.
The
case
held
that,
in
determining
a
defendant’s
initial
sentence,
the
trial
court
is
not
bound
by
the
economic
status
of
a
defendant
and
may
impose
the
maximum
penalty.
Id.,
at
670.
However,
in
the
case
at
bar,
both
the
trial
court
and
the
State
made
the
payment
(and
lack
of
payment)
of
restitution,
as
well
as
the
legitimate
seeking
of
unemployment
benefits
(both
economic
factors)
the
determining
consideration
in
that
initial
sentence
of
imprisonment,
rather
than
probation.
Therein
lies
the
constitutional
issue
before
this
Honorable
Court,
the
issue
that
was
overlooked
and
disregarded
by
the
Court
of
Appeals.
As
a
corollary
to
the
Fourteenth
Amendment
Due
Process
and
Equal
Protection
of
the
Law
issues
raised
in
Bearden
v.
Georgia,
there
is
this
additional
fundamental
concern
at
work
in
the
case
at
bar:
Where
the
trial
court
accepts
the
State’s
position
on
punishment,
deciding
to
withhold
consideration
of
probation
from
a
defendant
because
he
has
not
brought
with
him
funds
that
the
said
court
has
deemed
sufficient
for
restitution,
and
when
it
disparages
and
holds
against
a
defendant
his
reliance
upon
legitimate
economic
support
approved
by
State
law,
then
15
the
decision
has
run
afoul
of
Fourteenth
Amendment
Due
Process
and
Equal
Protection
of
the
Law.
Punishment
no
longer
is
meted
out
depending
on
the
facts
of
the
offense,
but
on
the
economic
ability
of
the
offender
to
pay
money.
That
certainly
runs
counter
to
Fourteenth
Amendment
Equal
Protection
considerations,
since
an
offender
who
can
pay
the
restitution
gets
probation,
but
one
who
does
not
-­‐-­‐
one
who
is
compelled
to
rely
upon
State
assistance
to
live
-­‐-­‐
gets
incarcerated.
It
has
all
the
earmarks
of
dispensing
justice
according
to
the
economic
circumstances
of
the
offender.
Compounding
that
error
was
the
fact
that,
nowhere
in
the
record
during
the
hearing
on
punishment
did
Newberry
testify
as
to
the
value
of
the
welding
machine.
The
trial
court
referred
to
the
sum
of
$3,750,
but
that
is
nowhere
in
the
record
from
the
sentencing
hearing,
as
promised
by
the
State
at
the
conclusion
of
the
guilty
plea
(RR
4:
12).
The
figure
of
$3,250
is
mentioned
in
a
police
report
as
the
value
of
the
welding
machine
(RR
6:
7);
and
in
that
same
report
the
figure
of
$250.00
is
placed
on
a
pair
of
cables
(RR
6:
7).
However,
at
the
low
end
of
valuation,
the
machine
was
pawned
for
$425.00
(RR
6:
9);
on
that
same
page
Newberry
gave
a
value
on
the
machine
of
$3,500.
Id.
Then
in
another
report
(Call
Sheet
Report
dated
16
12/29/2012)
Newberry
reported
(on
the
high
end
of
valuation)
that
he
had
“about
6-­‐10,000
dollars
worth
of
equipment”
stolen
(RR
6:
14).
ART.
42.037(k),
TEX.
CODE
CRIM.
P.,
places
the
burden
of
proving
the
amount
of
restitution
on
the
State.
The
statute
says,
in
relevant
part:
“The
burden
of
demonstrating
the
amount
of
the
loss
sustained
by
a
victim
as
a
result
of
the
offense
is
on
the
prosecuting
attorney.”
The
Judgment
recites
an
amount
of
restitution
as
$3,750,
payable
to
the
victim
Newberry,
but
does
not
say
how
or
when
that
amount
must
be
paid
(CR
50-­‐51).
See,
Miller
v.
State,
343
S.W.3d
499,
502
(Tex.
App.
–
Waco
2011,
pet.
ref’d),
where
the
reviewing
court
held
that
the
amount
of
restitution
must
be
just
and
supported
by
a
factual
basis
within
the
record.
The
State
did
not
elicit
testimony
from
Newberry
at
the
sentencing
hearing.
The
evidence
from
the
State’s
exhibits
was,
at
best,
ambiguous.
See
also,
Barton
v.
State,
21
S.W.3d
287
(Tex.
Crim.
App.
2000);
Lemos
v.
State,
27
S.W.3d
42,
45
(Tex.
App.
–
San
Antonio
2000,
pet.
ref’d).2
2
Victim’s
right
to
restitution:
see,
TEX.
CONST.
ART.
1,
§30(b)(4).
17
Appellant,
with
the
assistance
of
his
mother,
had
brought
some
money
to
court:
$1,000.
In
the
opinion
of
the
State
and
of
the
trial
court,
it
fell
short.
So
the
principle
at
work
was
this:
either
bring
all
the
money
or
go
to
prison.
The
Court
of
Appeals
failed
to
grasp
the
fundamental,
nonwaivable,
issue
at
work
in
the
appeal
in
its
consideration
of
whether
the
trial
court
had
erred
in
its
determination
of
punishment,
namely,
that
the
trial
court
departed
from
its
neutral
and
detached
role,
adopting
instead
the
position
of
the
State
toward
punishment,
thereby
imposing
an
unconstitutional
burden
of
financial
means
upon
Appellant
in
deciding
his
sentence.
That
burden
ran
afoul
of
Fourteenth
Amendment
Due
Process
and
Equal
Protection
of
the
Law.
18
PRAYER
FOR
RELIEF
WHEREFORE,
PREMISES
CONSIDERED,
Derek
Clinton
Ward,
Appellant,
prays
that
the
Honorable
Court
of
Criminal
Appeals
will
grant
discretionary
review
and,
after
full
briefing
on
the
merits,
issue
an
opinion
reversing
the
Court
of
Appeals’
judgment
and
remand
for
further
proceedings
consistent
with
the
Court’s
opinion.
Respectfully
submitted,
/S/
Hough-­‐Lewis
Dunn
HOUGH-­‐LEWIS
(“LEW”)
DUNN
TEXAS
STATE
BAR
NO.
02644600
201
E.
METHVIN
STREET,
SUITE
102
P.O.
BOX
2226
LONGVIEW,
TX
75606
903-­‐757-­‐6711
903-­‐757-­‐6712
dunn@texramp.net
ATTORNEY
FOR
APPELLANT
19
CERTIFICATE
OF
COMPLIANCE
This
petition
complies
with
the
typeface
requirements
of
TEX.
R.
APP.
P.
9.4(e),
because
it
has
been
prepared
in
a
conventional
typeface
no
smaller
than
14-­‐point
for
text
and
12-­‐point
for
footnotes.
This
document
complies
with
the
word-­‐count
limitations
of
TEX.
R.
APP.
P.
9.4(i)
because
it
contains
3,702
words,
excluding
the
parts
exempted
by
TEX.
R.
APP.
P.
9.4(i)(1).
/S/
Hough-­‐Lewis
Dunn
CERTIFICATE
OF
SERVICE
I
certify
the
foregoing
Petition
for
Discretionary
Review
was
served
upon
the
State
of
Texas
by
sending
a
true
and
correct
copy
to
the
Criminal
District
Attorney
of
Gregg
County
and
the
State
Prosecuting
Attorney
via
mail
to:
Hon.
Zan
Colson
Brown,
Assistant
Criminal
District
Attorney
for
Gregg
County,
101
E.
Methvin
St.
Suite
333,
Longview,
TX
75601,
and
Hon.
Lisa
C.
McMinn,
State
Prosecuting
Attorney,
P.O.
Box
13046,
Austin,
TX
78711-­‐3046
on
the
4th
day
of
December
2015.
/S/
Hough-­‐Lewis
Dunn
20
APPENDIX
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00110-CR
DEREK CLINTON WARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 42433-B
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
After Derek Clinton Ward entered an open plea of guilty to the state jail felony of theft of
property valued at $1,500.00 or more but less than $20,000.00,1 the trial court sentenced Ward to
twenty-two months’ incarceration. Ward has appealed, arguing that the trial court abandoned its
duty to remain impartial in the sentencing process. We reject this argument and affirm the trial
court’s judgment and sentence.
I. Procedural Background
Ward entered an open plea of guilty to the charged offense of theft April 9, 2015,2 and
returned for sentencing on May 21, 2015. It appears that although Ward had entered an open plea,
there was something of an informal agreement between Ward and the State wherein the State
would recommend that Ward would avoid incarceration if he appeared at the sentencing hearing
with $3,750.00 in restitution. However, when Ward appeared at the sentencing hearing, he did not
have the $3,750.00 in restitution; the only money proffered on his behalf was $1,000.00 brought
by Ward’s mother. After a hearing, the trial court sentenced Ward to twenty-two months’
incarceration in a state jail facility.
1
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 31.03, 1973 Tex. Gen. Laws 883, 929–30 (amended 1975,
1977, 1981, 1983, 1985, 1987, 1989, 1991, 1993, 1995, 1997, 2001, 2003, 2007, 2009, 2011, 2015) (current version
at TEX. PENAL CODE ANN. § 31.03 (West Supp. 2015)).
2
The theft charge arose because Ward had taken an expensive welding machine from his then-employer. Initially, the
employer was being reimbursed by withholding at least a portion of Ward’s paycheck. However, the employer then
indicated that Ward had also committed significant credit card abuse against the employer, and the informal repayment
plan was abandoned. The credit card abuse case was not thereafter pursued due to problems with the loss of evidence,
and Ward denied his culpability.
2
During the hearing on punishment, Ward related that he had become unemployed in the
days immediately following the early April plea hearing, his job as an oil-field drilling hand having
been eliminated during the downturn in the oil market. Ward (then thirty-six years old) testified
that he elected to seek unemployment benefits rather than pursue employment. He went on to
relate that he had had four back surgeries over the years and told the court about the physically
demanding nature of his career choice. In doing so, Ward stated,
[I]t was kind of nice to just let my back have a rest for a minute anyways. Working
on a drilling rig when you’re 36 years old and had as many spinal surgeries that I
have had takes a toll on your body. I kind of looked at it as just taking a second off
and giving my body a little rest.
Ward testified that in the weeks between losing his job and the sentencing hearing, he had applied
for unemployment benefits, but that a few days before the hearing, he had been notified that he
failed to include certain information with his application and that he was waiting for paperwork to
be sent to him. He also said that although he had obtained job applications, he had not submitted
them to prospective employers. He said he only took ibuprofen for his back pain, after successfully
battling addiction to prescription pain medication. As for the job from which he had been laid off,
he was “absolutely” eligible to be re-hired, and he already had “the paperwork” establishing that
eligibility.
After the parties’ examination of Ward drew to a close, the trial court asked him several
questions. During this exchange, the trial court referred to the time intervening between Ward’s
plea hearing and the sentencing hearing as a “vacation.” Although Ward did not object to that
characterization at the time the trial court uttered it, Ward now objects to it on appeal. For the
context in which this was said, we quote some of the trial court’s statements as made during Ward’s
3
sentencing hearing. After verifying the date that Ward had been terminated from his last job, the
trial court said, “And so knowing that the State’s recommendation is going to be two years state
jail, you decide instead of finding a job to collect restitution, that you’re going to take a vacation
for a month and a half.” Ward responded by protesting that the condition of his back had been the
reason for not seeking employment.3 The trial court then asked Ward why he should receive a
suspended sentence. Ward answered, “Because I’ll stick to the probation, complete the probation
and give you no reason for feeling like I did anything unjust, sir.”
Ward then called his mother (a loan officer for a mortgage company) to testify. She
indicated that she was able and willing to pay $1,000.00 toward Ward’s restitution at that time and
that she could pay the remaining portion of the restitution on June 15, less than a month away.
After a short recess, the trial court accepted Ward’s guilty plea and found him guilty as
charged of theft of property valued at $1,500.00 or more, but less than $20,000.00. The court then
described to Ward the factors taken into account in deciding the proper sentence:
I have to decide if you deserve State Jail time, or do you deserve a shot at
probation?
When you pled guilty on April 9th, you knew what the State’s
recommendation was. You knew that your obligation under that recommendation
was to come to Court today with $3,750 and the State would recommend a probated
sentence.
You personally came to Court with zero dollars.
3
During this exchange, it was developed that Ward’s driver’s license had been re-activated after paying “some fees
from a D.W.I.” The trial court also asked Ward about a DWI charge from Shelby County, and Ward responded that
that case had been dismissed. Ward admitted to the State that he had been charged with arson and assault/family
violence (these charges arising from one incident with Ward’s girlfriend), but claimed that the State had dropped the
arson allegation while continuing prosecution of the assault case.
4
The factors I have to consider or send somebody to prison include their
criminal history, obviously. If I was to consider just your criminal history, my
decision is pretty easy. I would send you to prison, but I look at other factors, also.
I look at changes that they may have made, when the criminal history was.
I look at several factors. Criminal history does vote against you. Your felony
offense was long ago, so that helps you some.
I looked at the facts and circumstances of the offense.
I can’t really consider much on the credit card abuse allegations, just
because of the lack of proof before me. I do consider the statements you made to
Investigator Mitchell and other factors.
Here’s where it really comes down to my decision that I’m going to make
today.
You pled guilty on April the 9th knowing that your part of the obligation
was $3,750. You say you lost your job April 10th or 11th. Instead of going out
and finding a new job whether it’s flipping burgers at McDonald’s for minimum
wage or anything else, you testified that you wanted to take a month-and-a-half
vacation to rest your back. It’s not until recently, the last few days that you’ve even
filed for unemployment. You come in here today and expect me to grant you
probation. You expect me to grant you probation, and, say, well, I’m hoping that
my mom’s $1,000 is enough to bail me out. It’s not this time.
I promise you if you had gone out and flipped burgers and showed me you
were working, I would make a different decision than I’m about to make. But you
didn’t. No, rest my back. I’m going to see how much unemployment pays me
instead of going out and working. That’s the problem with today’s society. We
have a lot of people who are willing to see what the government is going to pay
them instead of working.
It’s not going to work here. 22 months State Jail. I will give you credit for
time served.
Ward argues that the trial court abandoned its duty to remain a neutral and detached fact-finder;
Ward complains of the trial court’s use of the term “vacation” to describe the period between his
being laid off and the sentencing hearing. Ward further points to the trial court’s statement that he
5
would be unlikely to grant Ward much relief when the court was called upon to consider whether
any of Ward’s sentence would be reduced as a result of diligent participation in applicable
programs while incarcerated.4
II. Failure to Preserve Argument
As previously mentioned, Ward lodged no objection to the trial court’s use of the word
“vacation” or any of the court’s other statements at any time during the sentencing hearing (not
while the trial court was questioning Ward, during the statement he gave in explaining his
reasoning for the sentence that was announced, or during any other part of the hearing). In almost
every circumstance, in order to preserve a complaint for our review, a party must first present to
the trial court a timely request, objection, or motion stating the specific grounds for the desired
ruling if not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must
have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2).
Although Ward attempts to invoke due process claims in his assertion that the trial court
abandoned his role as judge for that of prosecutor, Ward offers no explanation or argument as to
why we should address this unpreserved issue. In a somewhat similar situation, we observed that
un-objected to “remarks and conduct of the [trial] court may not be subsequently challenged unless
they are fundamentally erroneous.” Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.—Texarkana
1995, no pet.) (citing Brewer v, State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.] 1978)).
4
This was apparently a reference to Article 42.12, Section 15(h)(5) of the Texas Code of Criminal Procedure. See
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(h)(5) (West Supp. 2014).
6
In such a situation, we used the egregious harm standard from Almanza v. State, 686 S.W.2d 157(Tex. Crim. App. 1984) (op. on reh’g), to determine if fundamental error had occurred. The alleged
error must be “so harmful that the defendant was denied a fair and impartial trial.” Moreno, 900
S.W.2d at 359. If we were to look at Ward’s brief in the most generous light possible, we might
say that he has claimed fundamental (or plain) error, i.e., the kind that obviates the need to preserve
it at the time of trial. An appellate court may, in criminal cases, “tak[e] ‘notice of fundamental
errors affecting substantial rights although they were not’ brought to the attention of the [trial]
court.” Boler v. State, 177 S.W.3d 366, 373 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)
(quoting Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001)). “No objection is required
when the error is so egregious that it rises to constitutional dimensions.” Id. (citing Jasper, 61
S.W.3d at 421).
The trial court’s comments were neither egregiously harmful nor did they operate to deny
Ward a fair and impartial trial. Certainly, the comments did not rise to the status of a complaint
of constitutional dimension. Read in context, the trial court was commenting on Ward’s behavior
between the time of the plea hearing and the sentencing hearing. When he took Ward’s plea of
guilty, the trial court admonished him of the full range of punishment, including a probated
sentence with community supervision. Based on comments by the court and the State at the two
hearings, it is clear that some informal agreement had been reached to the effect that if Ward
brought the full restitution amount to the sentencing hearing, the State would recommend a
probated sentence. However, if there was no such restitution, then there would be no such
recommendation. At the plea hearing, the trial court warned Ward that it was not bound by any
7
plea negotiations the parties might have, but also told Ward, “[I]f you do bring the restitution, then
that may put this in a different situation. But right now it is an open plea, so you have certain
obligations you need to meet.” When testimony developed at the sentencing hearing that Ward
had worked most of his adult life in the oil-field business but made a conscious decision not to
seek employment just days after the plea hearing (even after the discussions which had evidently
taken place regarding leniency if Ward were to make restitution), the trial court was left to draw
conclusions about Ward’s suitability for community supervision and regarding Ward’s
commitment to fulfill potential obligations.
The sentencing hearing occurred before the trial court, so there was no jury that could have
been confused or influenced by the court’s characterization of how Ward spent his time between
the hearings. See Moreno, 900 S.W.2d at 359. It also does not appear that the trial court abandoned
its role and acted as an advocate for the State. See id. The trial court’s decision process should
not be hindered by a constraint on its ability to explain the rationale behind its decision. The
fairness of the proceedings was not impugned. Even if error had occurred, it would not have been
in the nature of plain or fundamental error. Accordingly, absent such error, it was incumbent upon
Ward to preserve these issues for our review. We overrule Ward’s point of error.
8
We affirm the trial court’s judgment and sentence.
Bailey C. Moseley
Justice
Date Submitted: November 9, 2015
Date Decided: November 10, 2015
Do Not Publish
9
Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Derek Clinton Ward, Appellant Appeal from the 124th District Court of
Gregg County, Texas (Tr. Ct. No. 42433-B).
No. 06-15-00110-CR v. Memorandum Opinion delivered by Justice
Moseley, Chief Justice Morriss and Justice
The State of Texas, Appellee Burgess participating.
As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We note that the appellant, Derek Clinton Ward, has adequately indicated his inability to
pay costs of appeal. Therefore, we waive payment of costs.
RENDERED NOVEMBER 10, 2015
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk