ACCEPTED 12-15-00007-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 6/10/2015 10:20:10 PM CATHY LUSK CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-15-00007-CR FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE COURT OF APPEALS 6/10/2015 10:20:10 PM 12TH JUDICIAL DISTRICT CATHY S. LUSK Clerk TYLER, TEXAS
CHRISTOPHER THURMAN, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
ON APPEAL IN CAUSE NUMBER 007-1224-14 FROM THE 7TH JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS HONORABLE KERRY RUSSELL, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR. 100 E. FERGUSON, SUITE 805 TYLER, TEXAS 75702 903-593-2400 STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Christopher Thurman
APPELLANT’S TRIAL COUNSEL: John Jarvis 326 South Fannin Tyler, Texas 75702 903-592-6576
APPELLANT’S APPELLATE COUNSEL James Huggler 100 E. Ferguson, Suite 805 Tyler, Texas 75702 903-593-2400 903-593-3830 (fax)
APPELLEE The State of Texas
APPELLEE’S TRIAL COUNSEL Bryan Jiral Jeff Wood Smith County Criminal District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702 903-590-1720 903-590-1719 (fax)
APPELLEE’S APPELLATE COUNSEL Michael West Smith County Criminal District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702 903-590-1720 903-590-1719 (fax) ii TABLE OF CONTENTS PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Issue One: The evidence regarding intentional or knowing possession of a firearm was legally insufficient to support the verdict.
Issue Two: By entering a finding of guilt, prior to receiving any evidence as to punishment, the trial court foreclosed deferred adjudication as a possible sentence violating his right to due process of law under the United States Constitution.
Issue Three: By entering a finding of guilt, prior to receiving any evidence as to punishment, the trial court foreclosed deferred adjudication as a possible sentence violating his right to due course of law under the Texas Constitution.
STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Standard of Review on Sufficiency. . . . . . . . . . . . . . . . . . . . . . . 7 iii B. Law Regarding Possession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ISSUE THREE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. The Law Requires a Neutral Tribunal. . . . . . . . . . . . . . . . . . . 14 B. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 C. Structural Error Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 18
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iv TABLE OF AUTHORITIES CONSTITUTIONS U.S. CONST. Amend. XIV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 TEX. CONST. art. I, §19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
STATUTES TEX. PENAL CODE ANN. § 2.01 (West 2012).. . . . . . . . . . . . . . . . . . . . . . . 8 TEX. PENAL CODE ANN. § 12.42(a) (West 2012). . . . . . . . . . . . . . . . . . . . 2 Tex. Penal Code Ann. §46.04(a)(1) (West 2012). . . . . . . . . . . . . . . . . . . . 1
CASES Arizona v. Fulminante, 4449 U.S. 279, 111 S. Ct. 1246, 113 L.Ed.2d 302 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Bollinger v. State, 224 S.W.3d 768 (Tex. App. – Eastland 2007, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).. . . . . . . . . . . . 7 Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005). . . . . . . . 14, 15 Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995). . . . . . . . . . . . . 9 Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006). . . . . . . . 14, 15 Corpus v. State, 30 S.W.3d 35 (Tex. App. – Houston [14th Dist.] 2000, pet. ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12 Davis v. State, 93 S.W.3d 664 (Tex. App. – Texarkana 2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.2d (1973). 14 Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. – Houston [1st Dist.] 1994, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 13 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, v 61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993). . . . . . . . . 7, 8 Jones v. State, 963 S.W.2d 826 (Tex. App. – Texarkana 1998, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Lagrone v. State, 84 Tex. Crim. 609, 209 S.W. 411 (1919). . . . . . . . . . 15 McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983). . . . . . . . . 15 Porter v. State, 873 S.W.2d 729 (Tex. App. – Dallas 1994, pet. ref’d).. . 9 Texeira v. State, 89 S.W.3d 190 (Tex. App. – Texarkana 2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Wallace v. State, 932 S.W.2d 519 (Tex. App. – Tyler 1995, pet. ref’d). . 9
RULES TEX. R. APP. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
vi NO. 12-15-00007-CR
CHRISTOPHER THURMAN ,§ IN THE COURT OF APPEALS APPELLANT § § VS. § 12TH JUDICIAL DISTRICT § THE STATE OF TEXAS, § APPELLEE § TYLER, TEXAS
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES THEREOF:
Christopher Thurman (“Appellant”), by and through his attorney of
record, James Huggler, and pursuant to the provisions of TEX. R. APP.
PROC.38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was indicted for the felony offense of unlawful possession
of a firearm by a felon. I CR 4.1 TEX. PENAL CODE ANN. §46.04(a)(1)
References to the Clerk’s Record are designated “CR” with a roman numeral preceding CR specifying the correct volume and an arabic numeral following “CR” specifying the correct page in the record.
1 (West 2012). The punishment range for this offense was enhanced to a
second degree felony range with the inclusion of one prior felony offenses.
I CR 4. TEX. PENAL CODE ANN. §12.42(a) (West 2012).
On June 27, 2012, the trial court began a bench trial in the case on
the issue of guilt. V RR 48.2 Following the conclusion of evidence, the
court found Mr. Thurman guilty of the offense. V RR 130.
After hearing the punishment phase testimony, the court found the
enhancement paragraphs to be true, and sentenced Appellant to 15 years’
confinement in the Texas Department of Criminal Justice, Institutional
Division. I CR 74-75; VI RR 39.
Notice of appeal was timely filed on January 12, 2015. I CR 57.
This brief is timely filed on or before June 10, 2015.
2 References to the Reporter’s Record are made with the notation “RR” with a roman numeral preceding RR indicating the correct volume and an arabic numeral following specifying the correct page. 2 ISSUES PRESENTED
Issue One: The evidence regarding intentional or knowing possession of a firearm was legally insufficient to support the verdict.
Issue Two: By entering a finding of guilt, prior to receiving any evidence as to punishment, the trial court foreclosed deferred adjudication as a possible sentence violating his right to due process of law under the United States Constitution.
Issue Three: By entering a finding of guilt, prior to receiving any evidence as to punishment, the trial court foreclosed deferred adjudication as a possible sentence violating his right to due course of law under the Texas Constitution.
STATEMENT OF THE FACTS
This case involved a bench trial for an indictment alleging possession
of a firearm by a convicted felon. I CR 4. Witnesses were called who
established that Mr. Thurman had a previous felony conviction and that
he was on parole on the date alleged in the indictment. V RR 53, 56. The
possession was alleged to have occurred in Tyler, Smith County at the
Town House Motel. V RR 59-60.
For the primary element, intentional or knowing possession, the
State called four Tyler police officers. Adam Colby responded as a back-up
officer and knew that he was dispatched to a theft complaint. V RR 59. 3 The primary suspect was Brittani Stone who had stolen credit cards,
checkbooks and prescription drugs and that she was in a room at the
Town House Motel. V RR 59-60. Officer Colby determined that Ms. Stone
was wanted for felony charges in both Smith and Gregg Counties. V RR
60. While Officer Colby was speaking with the complainant in the theft
case, Ms. Stone came out of a hotel room, made eye contact with and was
recognized by the officer from previous book-in photographs and went
back inside the room. V RR 60-61. Colby and Officer Hill, who did not
testify, knocked on the door and Mr. Thurman answered and gave
permission for the officers to “go and get her.” V RR 62. Ms. Stone gave
a false name, and Colby saw a credit card with the complainant’s name on
it in the room. V RR 63.
Colby contacted a detective to seek a search warrant was obtained
for the stolen property. V RR 64. During that process, Mr. Thurman gave
written and verbal consent for the officers to search the room and his car
for stolen property. V RR 64-66. During the search for stolen property,
Office Colby and at least one other officer searched the room and Colby
saw bullets and was concerned about a firearm being involved that had
4 not yet been found. V RR 71. Both Mr. Thurman and Ms. Stone were
searched again and no firearm was located. V RR 72. No firearm was
found in Mr. Thurman’s car. V RR 72.
Two other officers then searched the room again and found a
firearm, specifically a .38 caliber revolver with pink grips. V RR 73. Mr.
Thurman denied ownership, and Ms. Stone invoked her right to remain
silent. V RR 73. Now officers sought a different warrant using a narcotics
detective. V RR 74. Mr. Thurman was allowed to leave. V RR 74. Ms.
Stone was charged with being a felon in possession of a firearm. V RR 76-
77, 79.
Counsel has reviewed the record in the case thoroughly, and
presents three issues. A discussion of relevant facts for those issues is
included in the argument section of this brief.
5 SUMMARY OF ARGUMENT
The issues for this Court to consider are first, whether the evidence
was legally sufficient to establish that Mr. Thurman intentionally or
knowingly possessed the firearm and second, whether the court violated
his rights to due process and due course of law by immediately finding
him guilty of the offense. The evidence is clear that an officer located a
pink handled revolver in a hotel room shared by Mr. Thurman by an
indicted co-defendant Ms. Brittani Stone. However, the record establishes
that Mr. Thurman was released by officers that evening because they
were looking for Ms. Stone on felony warrants and had not located the
firearm by that time. The revolver was found under a mattress in a hotel
room only after repeated searches of the room. The State failed to prove
intentional or knowing possession.
The second and third issue raised relate to the trial court’s finding
Mr. Thurman guilty of the offense almost immediately following the
conclusion of evidence, thus making Mr. Thurman ineligible to receive
deferred adjudication. Deferred adjudication exists as a possible
punishment for this offense, by eliminating that as an option, the trial
6 court violated Mr. Thurman’s right to due process and due course of law.
ARGUMENT
Issue One, Restated: The evidence regarding intentional or knowing possession of a firearm was legally insufficient to support the verdict.
This was a case about possession. While it was undisputed that a
firearm was located in the room occupied by Mr. Thurman and Ms. Stone,
the State failed to prove that Mr. Thurman intentionally or knowingly
possessed the firearm.
A. Standard of Review on Sufficiency
Appellant contends that the evidence is legally insufficient to
support the verdict. The standard for reviewing a legal sufficiency
challenge is whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson
v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d
560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993); and Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App.
7 2010)(plurality op.). The evidence is examined in the light most favorable
to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson,
871 S.W.2d at 186. A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457
U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).
B. Law Regarding Possession
In order to convict a person an of offense, the State must prove every
element of the offense beyond a reasonable doubt. TEX. PENAL CODE ANN.
§2.01 (West 2011). To prove that a defendant committed the offense of
possession of a firearm, the State is required to prove that the defendant
(1) exercised actual care, control or custody of the firearm, (2) he was
conscious of his connection with it, and (3) that he knowingly or
intentionally possessed the firearm. Davis v. State, 93 S.W.3d 664, 667
(Tex. App. – Texarkana 2002, pet. ref’d).
Because an accused must not only have exercised actual care,
control, or custody of the firearm, but must also have been conscious of his
connection with it and have known what it was, evidence which
affirmatively links him to it suffices for proof that he possessed it 8 knowingly. Mr. Thurman recognizes this can be met by the State through
either direct or circumstantial evidence, but it must be more than a
fortuitous connection. Bollinger v. State, 224 S.W.3d 768, 774 (Tex. App.
– Eastland 2007, pet. ref’d), citing Brown v. State, 911 S.W.2d 744, 747
(Tex. Crim. App. 1995).
When the firearm is not found on the accused’s person or is not in his
exclusive possession, additional facts must affirmatively link the accused
to the firearm. Jones v. State, 963 S.W.2d 826, 830 (Tex. App. –
Texarkana 1998, pet. ref’d). While no set formula of facts exist that would
dictate a finding of affirmative links sufficient to support an inference of
knowing possession of contraband. Porter v. State, 873 S.W.2d 729, 732
(Tex. App. – Dallas 1994, pet. ref’d). The number of links if less important
than the “logical force” or degree to which the links, alone or in
combination, tend to affirmatively link the accused to the contraband.
Wallace v. State, 932 S.W.2d 519, 524 (Tex. App. – Tyler 1995, pet. ref’d).
Factors that specifically link a defendant to a firearm include: (1) whether
the firearm was in a car driven by the accused; (2) whether the firearms
were in a place owned by the accused; (3) whether the firearms were
conveniently accessible to the accused; (4) whether the firearms were 9 found in an enclosed space; and (5) whether the accused made any
affirmative statement connecting him to the firearm. Corpus v. State, 30
S.W.3d 35, 38 (Tex. App. – Houston [14th Dist.] 2000, pet. ref’d).
The analysis is similar to proving possession of narcotics. Factors
that may establish an affirmative link for narcotics include whether (1)
the contraband was in plain view; (2) the contraband was conveniently
accessible to the accused; (3) the accused was the owner of the place where
the contraband was found; (4) the accused was the driver of the
automobile in which the contraband was found; (5) the contraband was
found on the same side of the car seat as the accused was sitting; (6) the
place where the contraband was found was enclosed; (7) the odor of the
contraband was present; (8) paraphernalia to use the contraband was in
view of or found on the accused; (9) conduct by the accused indicated a
consciousness of guilt; (10) the accused has a special connection to the
contraband; (11) occupants of the automobile gave conflicting statements
about relevant matters; (12) the physical condition of the accused
indicated recent consumption of the contraband found in the car; and (13)
affirmative statements connecting the accused to the contraband. Gilbert
v. State, 874 S.W.2d 290, 298 (Tex. App. – Houston [1st Dist.] 1994, pet. 10 ref’d).
C. Application to These Facts
The firearm in this case was located during the third search of the
room by officers. V RR 92. It was located under the mattress of the bed
in the room. V RR 95. Ms. Stone claimed ownership of the safe which
contained the same ammunition as the firearm. V RR 82, 98. It appeared
to the officer that the room was occupied by a woman. V RR 102.
Ms. Stone was charged that evening with being a felon in possession
of the firearm, possession of narcotics and offenses related to the theft, as
well as to the two initial warrants. Those charges were all pending when
she invoked her right to remain silent during the first phase of trial. V
RR 118-120. During the sentencing phase, Ms. Stone also invoked her
right to remain silent. VI RR 8-9. By that time, the charges related to her
conduct on July 13, 2014 had been resolved, but there was still an unfiled
misdemeanor charge of failure to identify that the State would not grant
immunity. VI RR 8, 17. The trial court took judicial notice of Ms. Stone’s
felony charges in Smith County which included an unlawful possession of
a firearm which was dismissed under §12.45; a felony possession of a 11 controlled substance and a felony theft both of which were negotiated for
12 month sentences.
Of the Corpus factors, three do not apply in this case. The firearm
was not found in a car; was not found in a place owned by Mr. Thurston;
and he made no statement linking him to the firearm. Corpus, 30 S.W.3d
at 38. The firearm was found in an enclosed space, but that is the only
factor free from debate. Whether the firearm was conveniently accessible
is debatable since it took multiple officers multiple searches to locate the
firearm.
Similarly, many of the Gilbert factors do not apply to these facts.
This contact occurred outside an automobile, so the fourth and fifth factors
do not apply. This was a possession of a firearm, not marijuana case so
the seventh factor does not apply. The contraband was not found in an
enclosed area, so the sixth factor does not apply.
Several of the factors weigh against Appellant. The contraband was
found in a location accessible to Mr. Thurman, although as noted above
not necessarily convenient (Factor 2). In this case, it is undisputed that
the firearm was under a mattress not in plain view and not found during
the first or second search of the hotel room. 12 Several of the Gilbert factors are clearly in Mr. Thurman’s favor.
There was no conduct evidencing consciousness of guilt. There was no
special connection to the firearm, in fact it might be seen as unusual for
a man to possess a pink firearm. Ms. Stone had as many, if not more links
to the firearm and was also charged for possession of a firearm by a felon.
There were no affirmative statements connecting Mr. Thurman to the
contraband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. – Houston
[1st Dist.] 1994, pet. ref’d).
D. Conclusion
The only connection between Mr. Thurman and the firearm was that
he was one of two occupants of the room. The firearm was not found on
the first or even second search of the room, and Mr. Thurman was
cooperative about letting officers inside the room to apprehend Ms. Stone
and then search for stolen property in the possession of Ms. Stone. The
connection between Mr. Thurman and the firearm was fortuitous, and
legally insufficient. When viewed in totality, the evidence was legally
insufficient to prove that Mr. Thurman intentionally or knowingly
possessed the firearm in this case. The proper remedy is for this Court to 13 reverse and render on this issue.
Issue Two, Restated: By entering a finding of guilt, prior to receiving any evidence as to punishment, the trial court foreclosed deferred adjudication as a possible sentence violating his right to due process of law under the United States Constitution.
Issue Three, Restated: By entering a finding of guilt, prior to receiving any evidence as to punishment, the trial court foreclosed deferred adjudication as a possible sentence violating his right to due course of law under the Texas Constitution.
A. The Law Requires a Neutral Tribunal The Fourteenth Amendment provides that the state may not
“deprive any person of life, liberty, or property, without due process of law.
U.S. CONST. Amend. XIV. No citizen of this State shall be deprived of life,
liberty, property, privileges or immunities, or in any manner
disenfranchised, except by the due course of the law of the land. TEX.
CONST. art. I, §19. Due process requires that the trial court conduct itself
in a neutral and detached manner. Gagnon v. Scarpelli, 411 U.S. 778,
786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d (1973); Brumit v. State, 206 S.W.3d
639, 645 (Tex. Crim. App. 2006). A trial court’s arbitrary refusal to
consider the entire range of punishment in a particular case violates due
process. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005); 14 Brumit at 645.
The law contemplates that the trial judge shall maintain an attitude
of impartiality throughout the trial. Lagrone v. State, 84 Tex. Crim. 609,
209 S.W. 411, 415 (1919). A court denies due process and due course of
law if it arbitrarily refuses to consider the entire range of punishment for
an offense or refuses to consider the evidence and imposes a
predetermined punishment. Teixeira v. State, 89 S.W.3d 190, 192 (Tex.
App. – Texarkana 2002, pet. ref’d).
A court denies due process and due course of law if it arbitrarily
refuses to consider the entire range of punishment for an offense or
refuses to consider the evidence and imposes a predetermined
punishment. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App.
2005); McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983).
B. Application to These Facts
Given the evidence offered at the sentencing phase of trial, there
existed the possibility that Mr. Thurman might have been a suitable
candidate for deferred adjudication. This included the fact that since his
release from prison, he cared for his uncle following a stroke; (VI RR 24-
15 25) that he is now married (VI RR 25, 29); that he had been compliant
with parole (VI RR 29-30); that he was due to be discharged from parole
on July 3, 2015 (VI RR 56). Against those facts were his criminal history,
which was not insignificant. It is entirely possible that a detached and
neutral magistrate, who had not found a defendant guilty immediately
after the evidence would have been able to consider that as a possible
alternative to confinement. However, because of the finding of guilt, the
court was not able to consider deferring guilt and placing Mr. Thurman
under terms and conditions of supervision.
This error was emphasized when the trial court stated:
“I used to give a lot of announcement as to how I make my rulings, but the appellate courts have told me that it should be just a matter of like a jury. You make a ruling and go on, so I’m not going to give much.” V RR 128, line 22 - 129, line 1.
The trial court appears to be referring to cases where this Court
questioned the trial court’s comments as to acting as a jury would in
assessing punishment in either an open plea or revocation situation.
While the comment in this record in and of itself appears innocuous, given
the history of the prior cases, it can be concluded that the trial court does
not understand the previous rulings of this Court or its own role in
16 sentencing proceedings.
C. Structural Error Analysis
These errors in conjunction constitute structural error and need not
be preserved by contemporaneous objection and require a reversal of these
judgments. Structural error affects the conduct of the trial and is not
subject to a harm analysis. Arizona v. Fulminante, 449 U.S. 279, 309-310,
111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural error has been found
in the deprivation of the right to an impartial judge. Id. This is structural
error because the court immediately found Mr. Thurman guilty of the
offense almost immediately after the conclusion of the evidence. V RR
130.
It is anticipated that the State will object to these two points of error
by arguing that there were no timely objections to the trial court’s
comments. However, that analysis side-steps the issue of whether or not
this is structural error. If it is structural error as Appellant contends, no
contemporaneous objection is necessary.
17 D. Remedy and Relief Requested
The judgment of conviction should be reversed and the case
remanded to the trial court.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
pays that the trial court’s judgment be reversed and rendered in
accordance with the first issue, or that, in the alternative, the judgment
of the trial court be reversed and remanded in accordance with the second
and third issues.
Respectfully submitted,
/s/ James Huggler James W. Huggler, Jr. State Bar Number 00795437 100 E. Ferguson, Suite 805 Tyler, Texas 75702 903-593-2400 903-593-3830 fax
ATTORNEY FOR APPELLANT
18 CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by regular mail on this the 10th day of
June, 2015.
/s/ James Huggler James W. Huggler, Jr.
Attorney for the State: Mr. Mike West Smith County Criminal District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702
CERTIFICATE OF COMPLIANCE
I certify that in compliance with TEX. R. APP. P. 9.4, this document
contains 4,194 words as calculated by Corel WordPerfect version X5 using
14 point Century font and complies with the other requirement of Rule
9.4.