Roger Dale Gammons v. State

ACCEPTED
06-15-00026-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
6/16/2015 7:03:32 PM
DEBBIE AUTREY
CLERK
No. 06-15-00026-CR, 06-15-00027-CR, 06-15-00028
____________________________________________FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE 6/17/2015 8:22:00 AM
DEBBIE AUTREY
SIXTH COURT OF APPEALS Clerk
AT TEXARKANA, TEXAS
____________________________________________
ROGER DALE GAMMONS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
____________________________________________
APPEAL FROM
TH
THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
TRIAL COURT NO. 1423872, 1423873, 1423874
____________________________________________
APPELLEE’S BRIEF
____________________________________________
Will W. Ramsay
110 Main Street
Sulphur Springs, TX 75482
903.885.0641, f. 903.885.0640
wramsay@hopkinscountytx.com
Attorney for Appellee
State of Texas
ORAL ARGUMENT NOT REQUESTED
Appellee’s Brief
I DENTITY OF P ARTIES AND C OUNSEL
Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all
parties to the trial court’s judgment and the names and addresses of all trial and
appellate counsel:
Appellant Appellant’s appellate counsel
Roger Dale Gammons J. Edward Niehaus
207 W. Hickory St. Suite 309
Denton, Texas 76201
940.600.1295 telephone
888.821.2890 facsimile
Appellant’s trial counsel
Heath Hyde
214 Connally Street
Sulphur Springs, TX 75482
903.439.0000 telephone
Appellee Appellee’s trial & appellate counsel
The State of Texas Will Ramsay
8TH Judicial District Attorney
110 Main Street
Sulphur Springs, TX 75482
903.885.0641 telephone
903.885.0640 facsimile
wramsay@hopkinscountytx.com
Appellee’s Brief Page i
T ABLE OF C ONTENTS
Identity of Parties and Counsel ............................................................................ i
Table of Contents ........................................................................................... ii, iii
Index of Authorities............................................................................................ iv
Statement of the Case ...........................................................................................2
Issues Presented....................................................................................................3
POINT OF ERROR 1: Appellant’s Plea of Guilty was Involuntarily
Entered Where Appellant was Incompletely Admonished Regarding
His Eligibility for Probation
POINT OF ERROR 2: The Court Erred by Failing to Recuse Himself
Where the Court had Personal Knowledge of Disputed Facts Relating
to Appellant’s Enhancement Paragraph(s)
POINT OF ERROR 3: The Court Erred by Failing to Recuse Himself
After Having Previously Served as Counsel to the Defendant in
Related Criminal Proceedings Relevant to the Case for Which
Appellant Appeared Before the Court
Statement of Facts ...............................................................................................4
Summary of the Argument ...................................................................................5
Argument.......................................................................................................... 5-8
POINT OF ERROR 1: Appellant’s Plea of Guilty was Not
Involuntarily Entered Because Appellant was Admonished Correctly
Pursuant to Article 26.13 of the Code of Criminal Procedure. .............. 5-7
POINT OF ERROR 2: Appellant Waived and Failed to Preserve Any
Possible Error in the Trial Judge Hearing the Case. .............................. 7-8
POINT OF ERROR 3: Besides Failing to Preserve Error, This Court
Has Held that a Trial Court Does Not Err by Failing to Recuse
Appellee’s Brief Page ii
Himself After Having Previously Served as Counsel to the Defendant
in Related Criminal Proceedings................................................................8
Prayer....................................................................................................................8
Certificate of Word Count....................................................................................9
Certificate of Service............................................................................................9
Appellee’s Brief Page iii
I NDEX OF A UTHORITIES
Cases
Arnold v. State,
853 S.W.2d 543, 544–45 (Tex.Crim.App.1993)............................... 7,8
Barron v. State of Tex. Attorney Gen.,
108 S.W.3d 379, 383 (Tex.App.-Tyler 2003, no pet.) ......................... 7
Mart. v. State,
876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.)................ 7
Morsman v. State,
2013 Tex. App. LEXIS 6177, 2013 WL 2247322 (Tex. App.
Texarkana May 21, 2013). .................................................................. 8
Rosas v. State,
76 S.W.3d 771, 774 (Tex.App.-Houston [1st Dist.] 2002, no pet.) ..... 7
Statutes
TEX. CODE CRIM. P. art. 26.13 .................................................................... 5, 6
Tex.R. Civ. P. 18a(a) (amended 2011)........................................................... 7
Appellee’s Brief Page iv
No. 06-15-00026-CR, 06-15-00027-CR, 06-15-00028
____________________________________________
IN THE
SIXTH COURT OF APPEALS
AT TEXARKANA, TEXAS
____________________________________________
ROGER DALE GAMMONS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
____________________________________________
APPEAL FROM
TH
THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
TRIAL COURT NO. 1423872, 1423873, 1423874
____________________________________________
APPELLEE’S BRIEF
____________________________________________
Appellee’s Brief Page 1
STATEMENT OF THE CASE
Appellee believes that the Appellant has accurately and succinctly given the
Statement of the Case in his brief and would adopt his version as follows:
Appellant was charged by indictment with possession of a
penalty group one controlled substance, with intent to deliver,
in an amount over 4g but less than 200g in cause number
1423872 (hereinafter “case 872”)(CR1 at 1, 42), with
tampering with physical evidence in cause number 1423873
(hereinafter “case 873”)(CR2 at 1, 41), and with 4g but less
than 200g in cause number 1423874 Appellant's Opening Brief
iv (hereinafter “case 874”)(CR3 at 1, 42), all of which were
pending in the 8TH Judicial District Court of Hopkins County,
Texas, the Honorable Eddie Northcutt, Presiding, (RR II 6 –
8).1 Appellant's punishment range was enhanceable pursuant
to the habitual felony offender provision of the penal code,
(RR II 8; CR1 at 29; CR2 at 18; CR3 at 26). After plea of
guilty and hearing on punishment, Appellant was sentenced to
incarceration for life, (CR1 at 34 – 35, 39 – 40; CR2 at 31 –
32, 37 – 38; CR3 at 33 – 34, 38 – 39; RR IV 43). As this case
did not involve a plea bargain, Appellant has a right to appeal,
(CR1 at 36; CR2 at 34; CR3 at 35). Appellant timely filed
notice of appeal, (CR1 at 47 – 52; CR2 at 46 – 51; CR3 at 46 –
51). (Appellant’s Brief pp. iv-v.)
Appellee’s Brief Page 2
I SSUES P RESENTED
POINT OF ERROR 1: Appellant’s Plea of Guilty was Involuntarily
Entered Where Appellant was Incompletely Admonished Regarding
His Eligibility for Probation.
POINT OF ERROR 2: The Court Erred by Failing to Recuse Himself
Where the Court had Personal Knowledge of Disputed Facts Relating
to Appellant’s Enhancement Paragraph(s).
POINT OF ERROR 3: The Court Erred by Failing to Recuse Himself
After Having Previously Served as Counsel to the Defendant in
Related Criminal Proceedings Relevant to the Case for Which
Appellant Appeared Before the Court.
Appellee’s Brief Page 3
S TATEMENT OF F ACTS
Counsel for appellant has written a Statement of Facts that is approximately
4 pages in length. (Brief for Appellant pgs. 1-5) Appellee adopts the Statement of
Facts set forth in the Brief for Appellant absent the emphasis added.
Appellee’s Brief Page 4
S UMMARY OF THE A RGUMENT
POINT OF ERROR 1: Appellant’s Plea of Guilty was Not
Involuntarily Entered Because Appellant was Admonished
Correctly Pursuant to Article 26.13 of the Code of Criminal
Procedure.
POINT OF ERROR 2: Appellant Waived and Failed to Preserve
Any Possible Error in the Trial Judge Hearing the Case.
POINT OF ERROR 3: Besides Failing to Preserve Error, This
Court Has Held that a Trial Court Does Not Err by Failing to
Recuse Himself After Having Previously Served as Counsel to the
Defendant in Related Criminal Proceedings.
A RGUMENT
POINT OF ERROR 1: Appellant’s Plea of Guilty was Not
Involuntarily Entered Because Appellant was Admonished
Correctly Pursuant to Article 26.13 of the Code of Criminal
Procedure.
The trial court satisfied the requirements of Article 26.13 of the Texas
Code of Criminal Procedure. Nowhere in Article 26.13 is it required that the
court explain the differences between “straight” probation and deferred
adjudication.
Appellant is confused as to Appellee’s argument in this point of error.
The argument seems to be that the trial court erred by not telling Appellant
that “straight” probation was prohibited. However, the trial court went
above and beyond to explain the possible consequences of this open plea.
Appellee’s Brief Page 5
(See RR. Vol. 2 p. 6) In this rendition of the possible consequences of the
plea, the trial court explained the best and worst day for Appellant. Further,
within all of the possibilities associated with a plea of guilty, the court
mentioned the chance of straight probation. This explanation was prior to
the trial court finding it true that Appellant had two prior consecutive felony
convictions.
Taken together, the fact that the judge explained to the defendant that
the court could assess a punishment of 10 years or less and then suspend the
imposition of the sentence and place Appellant on probation, but then later
told Appellant that, if the prior convictions were found true, Appellant’s
range of punishment would move to 25 to Life, shows that the court
explained the prohibition on straight probation. After going through the
whole explanation, Appellant stated that he understood. (See RR. Vol. 2 p.
9)
Regardless of the fact that the trial court satisfied the requirements of
Article 26.13, Appellant would not have been harmed if the court had never
mentioned the possibility of straight probation. The Appellant even stated
that he “…rejected a plea bargain offer of twenty-five years confinement in
order to attempt to obtain deferred probation from the Court.” (Appellant’s
Brief p. 7) (emphasis added). The truth of the matter is Appellant was going
Appellee’s Brief Page 6
“all in” with the hopes that the judge would give him deferred probation,
even with the prior pen trips. To now state that the court failed to advise
him of the prohibition of straight probation is not demonstrated by the record
and, quite simply, not legally required of the trial court.
POINT OF ERROR 2: Appellant Waived and Failed to Preserve
Any Possible Error in the Trial Judge Hearing the Case.
Generally, a recusal motion must be filed at least ten days before trial and
must be verified. See Tex.R. Civ. P. 18a(a) (amended 2011); Arnold v. State, 853
S.W.2d 543, 544–45 (Tex.Crim.App.1993); Barron v. State of Tex. Attorney Gen.,
108 S.W.3d 379, 383 (Tex.App.-Tyler 2003, no pet.). The provisions of Rule 18a
wherein a trial judge must recuse himself or refer the motion to the presiding judge
of the administrative judicial district apply when a written, verified motion to
recuse is filed. Id. If the basis for recusal does not become apparent until a later
point in time, the defendant preserves the complaint by promptly filing the written,
verified motion when the basis for recusal is finally discovered. See Rosas v. State,
76 S.W.3d 771, 774 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Martin v. State,
876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.).
In this case, Appellant was aware of a possible complaint more than ten days
before the punishment hearing and did not timely file a verified written motion to
recuse. See RR. Vol. 3 p. 5-8. In fact, Appellant expressly waived any objection to
the fact that the judge had previously represented him on another case. Id.
Appellee’s Brief Page 7
Therefore, the issue was waived and not preserved for appellate review. See
Arnold, 853 S.W.2d at 544–45.
POINT OF ERROR 3: Besides Failing to Preserve Error, This
Court Has Held that a Trial Court Does Not Err by Failing to
Recuse Himself After Having Previously Served as Counsel to the
Defendant in Related Criminal Proceedings.
As Appellant properly stated, this Court has already decided this issue. See
Morsman v. State, 2013 Tex. App. LEXIS 6177, 2013 WL 2247322 (Tex. App.
Texarkana May 21, 2013). Morsman is directly on point and in favor of the trial
court’s actions.
Further, and in the alternative, Appellant has waived any possible error
regarding this issue for the reasons stated above in Point of Error 2.
P RAYER
WHEREFORE, premises considered, Appellee, State of Texas, respectfully
requests that the judgment of the trial court be affirmed.
Respectfully submitted,
By: //s// Will Ramsay
Will Ramsay
8th Judicial District Attorney
State Bar #24039129
110 Main Street
Sulphur Springs, TX 75482
903.885.0641, f. 903.885.0640
willramsay@hopkinscountytx.com
Attorney for Appellee
State of Texas
Appellee’s Brief Page 8
C ERTIFICATE OF W ORD C OUNT
Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 1,819 words.
__/s/ Will Ramsay_
Will Ramsay
C ERTIFICATE OF S ERVICE
This is to certify that on June 16, 2015, I served a true and correct copy of
the above and foregoing Appellant’s Brief by email on J. Edward Niehaus,
Attorney for Appellant.
__/s/ Will Ramsay_
Will Ramsay
Appellee’s Brief Page 9