Ex Parte Billy Max Collins

ACCEPTED
06-15-00056-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
5/18/2015 3:44:57 PM
DEBBIE AUTREY
CLERK
FILED IN
NO. 06-15-00056-CR 6th COURT OF APPEALS
TEXARKANA, TEXAS
5/18/2015 3:44:57 PM
IN THE COURT OF APPEALS DEBBIE AUTREY
FOR THE SIXTH APPELLATE DISTRICT OF TEXAS Clerk
AT TEXARKANA
BILLY MAX COLLINS, Appellant
vs.
THE STATE OF TEXAS, Appellee
____________________________________
ON APPEAL FROM COUNTY COURT
HOPKINS COUNTY, TEXAS
____________________________________
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF
____________________________________
DUSTANNA RABE
Hopkins County Attorney
State Bar No. 24002332
128 Jefferson Street Suite B
Sulphur Springs, Texas 75482
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 1
IDENTITY OF PARTIES AND COUNSEL
Billy Max Collins Pro Se Appellant
TDCJ 1884849
Terrell/R3
1300 FM 655
Rosharon, Texas 77583
Dustanna Rabe Hopkins County Attorney
128 Jefferson Street, Suite B Responding on behalf of Appellee
Sulphur Springs, Texas 75482
(903) 438-4017
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 2
TABLE OF CONTENTS
IDENTITY OF PARTIES 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 5
STATEMENT OF FACTS 6
ARGUMENT AND AUTHORITIES 7
CONCLUSION AND PRAYER 10
CERTIFICATE OF SERVICE 11
CERTIFICATE OF WORD COUNT 12
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 3
INDEX OF AUTHORITIES
Cases:
Battle V. State, 989 S.W.2d 840, 841 (Tex. App. –Texarkana 199, no pet) 7
Brady v. United Sates, 397 U.S. 742, 755 (1970) 10
Cooper v. State, 45 S.W. 3d, 77, 82 (Tex. Crim. App. 2001) 10
Ex Parte Acosta, 672 S.W.2d 470,472 (Tex. Crim. App. 1984) 9
Ex Parte Easter, 615 S.W 2d 719, 721 (Tex. Crim. App. 1981) 9
Ex Parte Morrow, 952 S.W.3d at 535 10
Ex Parte Young, 479 S.W.2d 45, 46 (Tex. Crim. App. 1967) 8
Jones v. State, 77 S.W.3d 819, 823 n. 15 (Tex. Crim. App. 2002) 7
Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001) 8
Rhodes v. State, 240 S.W.3d 882, 887 (Tex. Crim. App. 2007) 7
Texas Rules:
Texas Code of Criminal Procedure Article 11 8
Texas Code of Criminal Procedure Article 11.09 8
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 4
NO. 06-15-00056-CR
IN THE COURT OF APPEALS
FOR THE SIXTH APPELLATE DISTRICT OF TEXAS
AT TEXARKANA
BILLY MAX COLLINS, Appellant
vs.
THE STATE OF TEXAS, Appellee
____________________________________
TO THE HONORABLE COURT OF APPEALS:
Hopkins County Attorney, Dustanna Rabe, submits this brief on behalf of the
State of Texas in reply to the brief of Appellant.
STATEMENT OF THE CASE
Billy Max Collins was charged by information in cause number 5629-C with the
misdemeanor offense of driving while intoxicated. On March 16, 1990, Mr. Collins entered a
plea of guilty with the State of Texas and agreed to a sentence of 15 days in the county jail and a
fine of $500.00. On May 9, 2013, Appellant was indicted in cause number F8793 with a charge
of driving while intoxicated third or more in Franklin County, Texas. The indictment included
Mr. Collin’s driving while intoxicated conviction in cause number 5629-C as an essential
element of the case. In September of 2013, a jury in Franklin County found Appellant guilty of
the offense of driving while intoxicated third or more in cause number F-8793. The jury
assessed Mr. Collins punishment at confinement in the Texas Department of Criminal Justice-
Institutional Division for thirty six (36) years with no fine. Mr. Collins appealed the jury verdict
within the required 30 days; and on May 30, 2014, in cause number 06-13-00214-CR, the Court
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 5
of Appeals, Sixth Appellate District of Texas at Texarkana issued an opinion that modified the
trial court’s judgment as to a fine amount but otherwise affirmed the judgment.
While incarcerated on the above felony charge, Appellant on February 20, 2015, filed a
“Motion to Void Conviction 5629C” in Hopkins County Court under cause number 5629C. On
March 20, 2015, Hopkins County Judge Robert Newsom reviewed the pleadings and entered an
order denying Mr. Collin’s request to void his conviction. Mr. Collins then filed a “Motion to
Rule on Habeas 11.09” with the county judge on April 6, 2015. Appellant now appeals Judge
Newsom’s order denying his request to void his conviction in 5629C as well as the lower court’s
denial of Mr. Collin’s application for writ of habeas corpus.
STATEMENT OF FACTS
On March 6, 1990, Billy Max Collins entered a plea of guilty to the misdemeanor charge
of Driving While Intoxicated filed in Cause Number 5629-C. Mr. Collins accepted a plea bargain
offered by then Hopkins County Attorney John Perry and therefore agreed to serve fifteen (15)
days in the Hopkins County Jail and pay a fine of five hundred dollars ($500.00) under the terms
of the plea bargain. At the time of the plea, Mr. Collins signed a document waiving his right to
employ an attorney or to have an attorney appointed to represent him. (See Appellant’s Exhibit
1A) Mr. Collins signed a waiver of jury trial and a statement that his plea of guilty was
voluntary. (See Appellant’s Exhibit 2A). In addition, Appellant signed a document which
specifically stated he understood his statutory and constitutional rights regarding the plea and
that he wished to not only voluntarily waive those rights but he also wanted waive his rights to
file a Motion for New Trial, Motion in Arrest of Judgment, and his right to appeal the conviction.
(See Appellant Exhibit 3A). Finally, Mr. Collins signed a document to waive the ten days
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 6
granted to prepare for trial and asked the court to accept the plea recommendation. (See
Appellant’s Exhibit 4A). County Judge Joe Pogue signed each of the waivers and signed the
judgment sentencing Mr. Collins to the agreed fifteen (15) days in jail and fine of $500.00. All of
the documents were signed on the same date; and all were file-stamped by the county clerk on
March 16, 1990, during the time frame of 4:00 o’clock to 4:01 o’clock p.m.
Mr. Collins was aware of the plea agreement and in fact admitted to sitting in jail under
the terms of the agreement by stating “I believe I set in jail on 2 different weekends plus the fine
I paid.” (See Appellant’s document entitled “Collins’s Affidavit of Facts Exhibit A”). Appellant
did not challenge his conviction and sentence in cause number 5629C nor did he make any
attempt to file a Motion for New Trial, Motion in Arrest of Judgment, or a Notice of Appeal.
Mr. Collins alludes to the new case being filed against him in felony court and indicates
the prior misdemeanor conviction was used to enhance the felony to which he is currently
incarcerated.
ARGUMENT AND AUTHORITIES
In order to successfully attack a criminal conviction or sentence resulting from a guilty or
no contest plea, Appellant would have to prove the prior conviction was void. . Rhodes v. State,
240 S.W.3d 882, 887 (Tex. Crim. App. 2007). Since, courts presume judgments to be valid,
Appellant bears the burden of defeating the presumption by a preponderance of the evidence.
Jones v. State, 77 S.W.3d 819, 823 n. 15 (Tex. Crim. App. 2002); Battle V. State, 989 S.W.2d
840, 841 (Tex. App. –Texarkana 199, no pet). There are special rules and procedures which
limit the types of issues a defendant can raise while collaterally challenging a conviction or
sentence resulting from a guilty or no contest plea. Consequently, prior convictions are rarely
found to be void. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001).
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 7
Appellant is attempting to raise issues as to whether his prior 1990 conviction should be
deemed void by petition for writ of habeas corpus as set forth in Article 11 of the Texas Code of
Criminal Procedure. TEX. CODE CRIM. PROC. Art. 11. However, application of Article 11.09
of the Texas Code of Criminal Procedure which governs the rules regarding misdemeanor
convictions creates some level of confusion. TEX. CODE CRIM. PROC. Art. 11.09. While
Appellant is currently restrained, his incarceration is tied to a felony conviction and not to the
1990 misdemeanor conviction in question. Since more than twenty five years has elapsed since
Appellant served the 15 day sentence, any complaint of unlawful restraint has moved well
beyond the time frame for relief. At a minimum Appellant’s petition should be denied, regardless
of merit to substantive issues, as there is no longer any relief from restraint to be gained in cause
number 5629-C.
While Article 1.08, Texas Code of Criminal Procedure, provides that “the writ of habeas
corpus is a writ of right and shall never be suspended.” TEX. CODE CRIM. PROC. Art. 1.08, a
writ should at least be filed in a reasonable period of time and any delay in seeking relief can
prejudice the credibility of the applicant’s claim. Ex Parte Young, 479 S.W.2d 45, 46 (Tex. Crim.
App. 1967). The filing of the petition roughly 25 years after the plea was entered under the
circumstances presented is clearly not within reason. Therefore, applicant’s delay in seeking
relief should be denied as both moot and untimely.
In addition to Appellant’s petition for writ of habeas corpus being moot and untimely, the
Court of appeals should not review the merits of Mr. Collin’s claims since the claims as raised
are not cognizable. Mr. Collin’s claims the conviction is void because he was not represented by
an attorney, there were no cause numbers atop the signed waivers and no prints on the judgment.
Habeas Corpus is available to review jurisdictional defects or denial of fundamental or
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 8
constitutional rights, it is not a proper means for raising statutory violations. Ex Parte Cruzata,
220 S.W.2d 518, 520 (Tex. Crim. App. 2007). Appellant agreed to the plea offer in 5629-C and
signed off on a waiver of attorney, waiver of trial and waiver of his right to appeal. Consequently
those issues cannot be raised in the petition for writ of habeas corpus.
A challenge to the sufficiency of evidence is not cognizable on habeas corpus; Ex Parte
Easter, 615 S.W 2d 719, 721 (Tex. Crim. App. 1981); nor are allegations that were rejected on
direct appeal. Ex Parte Acosta, 672 S.W.2d 470,472 (Tex. Crim. App. 1984). It should be noted
that this Court of Appeals in cause number 06-13-00214, reviewed the issue of there being no
fingerprints on the judgment in cause number 5629-C and found fingerprints on a judgment were
not required to establish whether or not a conviction existed. The same judgment in question in
this case is the same judgment presented in the felony case. The jury found the judgment in
5629-C to be a valid conviction as did this Court of Appeals by affirming the jury’s decision. In
essence, Appellant is attempting to re-litigate issues under the guise of a writ of habeas corpus
which have already been reviewed in a direct appeal. Again, discussion of these issues are not
cognizable further supporting the premise that Appellant’s petition for writ of habeas corpus
should be denied.
Mr. Collins claims the conviction is void because his plea to cause number 5629-C was
involuntary. The Court of Appeals has said “most cases of involuntary pleas result from
circumstances that existed outside the record, such as misunderstandings, erroneous information,
impaired judgment, ineffective assistance of counsel, and plea-bargains that were not followed or
turn out to be impossible of performance. Cooper v. State, 45 S.W. 3d, 77, 82 (Tex. Crim. App.
2001). Appellant has not proven by preponderance of evidence that his guilty plea was “induced
by threats, misrepresentations or improper promises. Ex Parte Morrow, 952 S.W.3d at 535
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 9
(citing Brady v. United Sates, 397 U.S. 742, 755 (1970). In reality, the bargained sentence of 15
days in jail was a reasonable plea offer and Appellant had incentive to take the plea offer rather
than risk a longer sentence.
Overall, nothing has been raised by Appellant to support granting the writ of habeas
corpus. Mr. Collins was charged with driving while intoxicated and voluntarily entered a plea to
the charge. Appellant found the need to challenge the 1990 conviction only when faced with
more serious convictions and longer prison sentences due to continued criminal behavior.
However, “buyer’s remorse” is not grounds for rendering a prior conviction void.
CONCLUSION AND PRAYER
The County Court did not err in denying Appellant’s “Motion to Void Conviction” in
cause number 5629-C. Further, application for writ of habeas corpus should also be denied as
both pleadings are untimely and frivolous. The Honorable Court of Appeals for the Sixth
Appellate District has already visited some if not all of the issues raised in the current appeal in a
previous appeal filed by Appellant. There is no credibility in Appellant’s timing of filing the
petition and the issues raised in the writ are not cognizable. Further, there are no jurisdictional or
constitutional issues that would merit granting the application for writ of habeas corpus.
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 10
Appellee prays that Appellant’s attempt to have this Court void the conviction in cause
number 5629-C be denied and that the petition for writ of habeas corpus be denied as the filing is
untimely, frivolous, and without legal merit.
Respectfully submitted,
Dustanna Rabe
Hopkins County Attorney
By:/s/ Dustanna Rabe
Hopkins County Attorney
State Bar No. 24002332
128 Jefferson Street Suite B
Sulphur Springs, Texas 75482
(903) 438-4017
(903) 438-4016 (fax)
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above instrument was forwarded to Pro
Se Appellant Billy Max Collins via certified mail, return receipt requested to TDCJ 1884849,
Terrell/R3,1300 FM 655, Rosharon, Texas 77583.
/s/ Dustanna Rabe
Dustanna Rabe
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 11
CERTIFICATE OF WORD COUNT
I certify that this document contains 2192 words.
/s/ Dustanna Rabe
Dustanna Rabe
APPELLEE’S RESPONSE TO APPELLANT’S BRIEF Page 12