                                                                                          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

Martin 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
