Derek Clinton Ward v. State

ACCEPTED
06-15-00110-cr
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/19/2015 10:10:53 AM
DEBBIE AUTREY
CLERK
NO. 06 – 15 – 00110– CR
FILED IN
6th COURT OF APPEALS
IN THE SIXTH DISTRICT COURT OF APPEALSTEXARKANA, TEXAS
TEXARKANA, TEXAS 10/19/2015 10:10:53 AM
DEBBIE AUTREY
Clerk
DEREK CLINTON WARD
Appellant,
v.
THE STATE OF TEXAS
Appellee
On appeal from the 124TH District Court, Gregg County, Texas
Trial Court Case No. 42,433-B
BRIEF OF THE STATE OF TEXAS
CARL DORROUGH
GREGG COUNTY DISTRICT ATTORNEY
Zan Colson Brown
Texas Bar No. 03205900
Assistant District Attorney
Gregg County, Texas
101 East Methvin St., Suite 333
Longview, Texas 75601
Telephone: (903) 236–8440
Facsimile: (903) 236–3701
Zan.Brown@!co.gregg.tx.us
TABLE OF CONTENTS
INDEX OF AUTHORITIES ...................................................................................2
STATEMENT OF FACTS ......................................................................................1
SUMMARY OF THE ARGUMENT .....................................................................3
ARGUMENT ............................................................................................................3
1) The Appellant failed to preserve error and no fundamental error
was committed. ................................................................................................3
2) The judge’s comments were not improper and he maintained
his objectivity...................................................................................................5
a) Standard of Review: actual impropriety, probable prejudice......................5
b) The trial judge did not become an advocate for the State. ..........................6
c) The judge did not lose his objectivity. ........................................................7
CONCLUSION AND PRAYER .............................................................................8
CERTIFICATE OF SERVICE ..............................................................................9
CERTIFICATE OF COMPLIANCE ..................................................................10
1
INDEX OF AUTHORITIES
State Cases
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (opinion on
rehearing)…………………………………………………………...…………5
Blue v. State, 41 S.W.3d, 129, 132 (Tex. Crim. App. 2000)……….4
Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.]
1978)…………………………………………………….……………………..…..6
Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App. –Houston [14th Dist.] 2007,
pet. ref’d) …………….…………………………………………………….….5
Hookie v. State, 136 S.W. 3d, 671 (Tex. App. –Texarkana 2004, no
pet.)………………………………….………………………………..…4
Jackson v. State, 989 S.W.3d 845 (Tex. App.—Texarkana 1999,
no pet.)………………………………………………………………………….….4
Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001)………...4, 6
Johnson v. State, 452 S.W.3d 398, 405 (Tex. App. Amarillo, 2014, pet ref’d.)
……………………………………..………………………….………5
Moreno v. State, 900 S.W.2d 357, 359 (Tex. App. Texarkana
1995)………………………………………………………………………….4,5,6,8
2
STATEMENT OF FACTS
Derek Clinton Ward was charged, on March 28, 2013, with State Jail felony
theft, an offense alleged to have occurred on or about September 19, 2012. See
indictment, CR 4. The property allegedly stolen was a welding machine valued at
more than $1,500 and less than $20,000. Id. The victim of the theft was David
Newberry, who had not consented to the appropriation. Id.
Ward worked for Newberry. 5 RR 6, 7 Newberry accused Ward of abusing
credit card privileges, and withheld Ward’s pay. 5 RR 7. 8. Ward confessed he
took Newberry’s welding machine in retaliation for that withholding. 5 RR 8, 21.
Ward agreed to plead guilty, and the State promised to agree to probation if
Ward could come up with the restitution on the day of sentencing, May 21, 2015. 5
RR 26. If he did not bring in the full restitution amount, he knew that it was
possible that he would be doing prison time. 5 RR 26. This agreement was reached
on April 9, 2015. 5 RR 26.
Two days later, on April 11, 2015, Ward was laid off from his job in the oil
field. 5 RR28. This was about a month and a half before he appeared for
sentencing on May 21. 5 RR 26. During that month and a half, Ward had not
applied for another job, but he was eligible to be rehired by his former company. 5
RR 14, 16. He chose instead to see what unemployment would provide versus
“what they were offering here” and to rest his previously injured back by not
1
working, and “it was kind of nice to just let my back have a rest for a minute
anyways.” 5 RR 16. Defense counsel followed this statement by asking about his
back injuries, when they occurred, and what drugs he took for them. He stated his
back had been injured in 1999, and he had endured multiple back surgeries, but he
had not used either prescription medications or illegal narcotics for “a couple of
years, few years.” 5 RR 17. He testified he could find other employment and take
care of financial obligations. 5 RR 20. Neither the defense attorney nor the State’s
attorney had asked the defendant exactly when he was laid off. The judge did. 5
RR 27-28. Ward said he was laid off on the Saturday after he had appeared in
Court on Thursday, April 9. 5 RR 28. The judge characterized Ward’s testimony as
saying he took a “vacation” instead of finding a job to save up to pay the
restitution. 5 RR 28. Additionally, when explaining his reasoning for the
sentence, the judge repeated that his decision to deny probation was based on the
fact that Ward did not work, but took “a month-and-a-half vacation to rest [his]
back.” 5 RR 40. He further explained, “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.’” 5 RR
41. Ward filed no motion for new trial, but filed notice of appeal on June 26,
2015.
2
SUMMARY OF THE ARGUMENT
The Appellant has failed to preserve error.
The judge questioned the defendant to find a fact that neither attorney had
asked about, in order to clarify a point. The judge’s comments did not deprive
Ward of a fair and impartial magistrate. Nor did they take away the presumption
of innocence. He remained objective.
ARGUMENT
The Appellant failed to preserve error. If the court considers his argument
on the merits, the trial court was merely seeking to understand or clarify the
defendant’s testimony regarding his reasoning for not having a job when he knew
that paying restitution would keep him from going to jail. Such questioning by the
judge is permitted in a bench trial if the defendant is seeking probation.
1) The Appellant failed to preserve error and no fundamental error was
committed.
To preserve a complaint for review, an appellant must have presented the
trial court with a timely request, objection, or motion stating the specific grounds
for the ruling ordered. TX R APP Rule 33.1 (a) (1) (A). Ward failed to object at
trial when the judge made comments of which Ward complains on appeal. Hence,
3
he preserved nothing for review. See Hookie v. State, 136 S.W. 3d, 671 (Tex. App.
–Texarkana 2004, no pet.) Jackson v. State, 989 S.W.3d 845 (Tex. App.—
Texarkana 1999, no pet.) No motion for new trial was filed.
Only if this Court believes the error to be “fundamental error of
constitutional dimension and required no objection,” should the issue even be
reached. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). The
Jasper opinion cites the plurality opinion of Blue v. State, 41 S.W.3d, 129, 132
(Tex. Crim. App. 2000) which held that a trial judge’s comments “which
tainted [the defendant’s] presumption of innocence in front of the venire” were
fundamental error.
This Court has considered complaints of judicial conduct and
determined that “[W]here no objection is made, remarks and conduct of the
court may not be subsequently challenged unless they are fundamentally
erroneous. Moreno v. State, 900 S.W.2d 357, 359 (Tex. App. Texarkana 1995,
citing Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.]
1978)).
In cases were the error is unpreserved, the harm to the defendant must
be egregious, that is, so harmful that the defendant was denied a fair and
impartial trial. Moreno v. State, 900 S.W.2d 357, 359 (Tex. App. Texarkana
1995, citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)
4
(opinion on rehearing).
Ward did not object at trial to the judge’s comments. His sole issue
should therefore be rejected as unpreserved and not fundamental error and the
sentence should be affirmed.
2) The judge’s comments were not improper and he maintained his
objectivity.
a) Standard of Review: actual impropriety and probable prejudice
If the issue is considered on its merits, the appropriate standard is as follows:
“To reverse a judgment on the ground of improper conduct or comments of the
judge, we must find (1) that judicial impropriety was in fact committed, and (2)
probable prejudice to the complaining party.” Dockstader v. State, 233 S.W.3d 98,
108 (Tex. App. –Houston [14th Dist.] 2007, pet. ref’d) (finding no impropriety);
Johnson v. State, 452 S.W.3d 398, 405 (Tex. App. Amarillo, 2014, pet ref’d.) (no
impropriety by merely admitting evidence and comments not fundamental error).
In Johnson, the Amarillo court relied on a Court of Criminal Appeals case when it
said, “A trial court’s comments do not constitute fundamental error unless they rise
to such a level as to bear on the presumption of innocence or vitiate the impartiality
of the jury.” Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).
This Court has determined that whether there is fundamental error depends
on whether an appellant can establish egregious harm. Moreno v. State, 900
S.W.2d 357, 359 (Tex. App.—Texarkana 1995, no pet.)
5
b) The trial judge did not become an advocate for the State.
A trial judge may question a witness when seeking information only, to
clarify a point, or to get the witness to repeat something that the judge could not
hear. Moreno v. State, at 359, citing Brewer at 721. When a judge goes beyond
this permissible questioning, there are two possible dangers: the judge may convey
his opinion of the case to the jury, or the judge may become an advocate in the
adversarial process and lose his or her neutrality.
Obviously, because this was not a jury trial, but a guilty plea, the first danger
is not applicable, so the issue here is whether the judge went beyond the
permissible questioning and became an advocate.
The judge’s questions to the defendant were permissible because they were
seeking information or designed to clarify a point. As in the Moreno case, this
judge was seeking facts, and the questions were within the bounds of what would
have been allowed by the attorneys. The answers would have been within the
bounds of admissible testimony.
The judge’s comments about Ward’s choosing to “vacation” rather than to
work to save up to pay Newberry the restitution were reasonably based on Ward’s
own words: “It would be nice to rest my body.” “I’m looking at how much I
would get unemploymentwise versus what they were offering here, and it was kind
6
of nice just to 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 taking a second off and giving
my body a little rest.” 5 RR 16. Yet when he spoke about his use of prescription
drugs, he claimed not to have used anything stronger than ibuprofen for his back
in “a couple of years, few years.” 5 RR 17. Furthermore, his attorney had asked
when his unemployment payments would begin, and he answered that his
application had been incomplete and he had an information packet due to arrive in
two days. 5 RR 15. So, as of the date of the hearing, he had not yet completed his
application for unemployment. The judge’s questions about Ward’s efforts to find
work were fact-finding questions, and his question about taking a vacation were
merely designed to clarify Ward’s answers. No impropriety has been shown. He
was not being an advocate for the State.
c) The judge did not lose his objectivity.
In Moreno, the record did not reveal that the judge became so entangled as
an advocate that he could not at the end of the proceeding make an objective
finding of fact in the case. Likewise, the judge in this case showed himself able to
be objective at the end of the hearing when, as he was about to announce Ward’s
sentence, he stated: “[I]f 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.” 5 RR 41.
7
When the judge spoke briefly about the potential for the 20 percent
reduction in sentence, he noted that he will have to consider it by law, but he didn’t
think he would be granting much, if any, of the reduction. That leaves open the
possibility of such a reduction, although the possibility is slim due to Ward’s lack
of interest in making restitution.
The appellant has shown neither improper questioning, nor advocacy by the
judge for the State, nor egregious harm bearing on the presumption of innocence.
His sole point of error should be rejected and his conviction affirmed.
CONCLUSION AND PRAYER
In conclusion, the Appellant has offered as his only argument—not
preserved—that the Court erred by questioning the defendant as an advocate for
the State, and thus deprived the defendant of a trial by a neutral and detached
magistrate. The issue should not be reached because it was not preserved by
timely objection. If it is reached, it should be rejected because the questions were
8
proper, there was no jury to influence, and even if improper, no egregious harm has
been shown that rises to the level of bearing on the presumption of innocence.
Respectfully Submitted,
/s/ Zan Colson Brown
Zan Colson Brown
Texas Bar No. 03205900
Assistant District Attorney
101 East Methvin St., Suite 333
Longview, TX 75601
Telephone: (903) 236–8440
Facsimile: (903) 236–3701
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel of record by efiling.
Time Cole
P.O. Box 413
Gilmer, Texas 75644
At timcone6@aol.com
this 19th day of October, 2015.
/s/ Zan Colson Brown_
Zan Colson Brown
Assistant District Attorney
9
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Texas Rules of
Appellate Procedure, Rule 9 (2012) regarding length of documents, in that
exclusive of caption, identify of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix, it
consists of 1913 words.
/s/ Zan Colson Brown
Zan Colson Brown
Assistant Criminal District Attorney
10