ACCEPTED 06-14-00110-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/22/2015 2:30:25 PM DEBBIE AUTREY CLERK
No. 06-14-00110-CR ____________________________________________ FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE 12/22/2015 2:30:25 PM DEBBIE AUTREY SIXTH COURT OF APPEALS Clerk AT TEXARKANA, TEXAS
____________________________________________
CODY LANG THOMAS, Appellant
v.
THE STATE OF TEXAS, Appellee ____________________________________________
APPEAL FROM TH THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS TRIAL COURT NO. 1423904 ____________________________________________
APPELLEE’S MOTION FOR REHEARING ____________________________________________
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 REQUESTED IF NECESSARY
Appellee’s Motion for Rehearing 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 CODY LANG THOMAS Martin Braddy 121 Oak Avenue, Suite A Sulphur Springs, Texas 75482 903.885.2040 telephone 500.885.2704 facsimile
Appellant’s trial counsel Wade Forsman Post Office Box 918 Sulphur Springs, TX 75482 903.243.1775 telephone wade@forsmanlaw.com
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 Motion for Rehearing Page 1 TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS as Appellee, who files this
Motion for Rehearing, and respectfully asks this Court to reform its opinion of
November 20, 2015 by setting aside the judgment in this case and remand the case
to the trial court for a new trial in its entirety as opposed to a new punishment
hearing. In support thereof, Appellant shows as follows:
I.
1. This case was originally indicted as the 3rd degree felony offense of
Engaging in Organized Criminal Activity. (C.R. pg. 4) The underlying felony
offense was a State Jail Theft. See Id. As seen throughout the entirety of the
record, both the defense and the State (erroneously) believed this case (as charged)
could ultimately be punished under the Habitual Felon Statute resulting in a
punishment range of 25 years to 99 years or Life in prison. (See R.R. Vol. 2 pg. 7;
See RR. Vol. 3 pg. 5) In exchange for the defendant’s plea of guilty, the State
agreed to drop the enhancement of “engaging in organized criminal activity” and
move forward on the enhanced State Jail Theft (which we now know was
improperly enhanced). (R.R. Vol. 3 pg. 6)
2. The defendant believed that he was ultimately looking at a punishment range
of 25 to life. The State agreed to reduce the charge wherein the range of
punishment would be capped at 20 years. Both the State and the defendant entered
Appellee’s Motion for Rehearing Page 2 into this agreement erroneously and without a full understanding of the outcome of
their decision. It is very possible, knowing that his only exposure was 20 years in
prison, that the defendant would not have pled guilty to this offense. A maximum
of life in prison and the maximum of 20 years in prison are quite different.
3. On the other hand, the State very likely would not have entered into this
agreement knowing they would be limited to punishment at 2 years in the State
Jail. As already stated, the original charge was a 3rd Degree Felony. The
defendant had one non-state jail felony conviction that would have absolutely
enhanced the punishment range from 10 years confinement to a maximum of 20
years confinement.
4. As embarrassing as it is to admit, nobody involved in this plea process was
aware of the proper range of punishment. The defendant thought he had dodged a
bullet by pleading to a lesser punishment range. The prosecutor thought that he
had secured a guilty plea while remaining in an appropriate punishment range (2-
20 years) that he would satisfy the victim. Finally, the judge approved the plea
agreement and admonished the defendant on the punishment range that everyone
was misunderstanding.
5. While the record is abundantly clear that this was not a plea agreement
entered into knowingly and intelligently by the parties, the defendant suffered no
harm by the mishandling. (Unless, of course, he would not have pled guilty at all
Appellee’s Motion for Rehearing Page 3 if he would have known the punishment was capped at 20 years!) The defendant
has spent almost two years in prison, which would be the maximum sentence for a
State Jail offense. As it stands now, he looks to walk out of jail in a much better
position than he ever dreamed.
6. There could be an in-depth discussion of whether the defendant’s plea was
knowing and voluntary under Boykin v. Alabama. 395 U.S. 238 (1969). The State
would contend that an entire record showing that the parties were entering into an
agreement where everyone was mistaken, is prima facie evidence that due process
was violated. Even under that analysis, we would then be looking to see whether
the error was harmful. While not necessarily harmful to the defendant, the
outcome after appeal is extremely harmful to the plea agreement between the
parties.
7. If a defendant successfully challenges a conviction obtained through a
negotiated plea of guilty, the proper remedy is specific performance of the plea
agreement, if possible. Shannon v. State, 708 S.W.2d 850, 852
(Tex.Crim.App.1986).
8. This case is different than many appeals. The issue is not that a party did not
get a desired outcome. It is no surprise that the defendant will appeal after
receiving the maximum sentence. But, until the appeals process, nobody thought
what the defendant received was outside of the range of punishment. This is
Appellee’s Motion for Rehearing Page 4 because the crux of the original plea agreement dealt with removing the EOCA
language in the indictment and capping the punishment at 20 years in the
penitentiary. The Defendant readily admitted and pled true to the two
enhancement paragraphs in order to obtain this benefit. The understanding of the
parties was clear from the record: there could be a sentence of two years or a
sentence of 20 years in the penitentiary. Punishment in the State Jail was never
envisioned when entering into this plea agreement.
8. The Court of Criminal Appeals has looked at this issue a number of times.
In Ex Parte Aaron Allen Adkins, there was an agreement between the parties that a
deadly weapon finding would be part of the judgment. See 767 S.W.2d 809, 810
(Tex. 1989). While the Court agreed that there was no evidence to support a
deadly weapon finding, they also opined that “the result of deleting the finding
without disturbing the remainder of the bargain would be to adjust the tenor of the
‘mutual obligation’ entered into by the parties” and it would “create a new bargain
not contemplated by the parties or the trial court when it accepted the plea
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 06-14-00110-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/22/2015 2:30:25 PM DEBBIE AUTREY CLERK
No. 06-14-00110-CR ____________________________________________ FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE 12/22/2015 2:30:25 PM DEBBIE AUTREY SIXTH COURT OF APPEALS Clerk AT TEXARKANA, TEXAS
____________________________________________
CODY LANG THOMAS, Appellant
v.
THE STATE OF TEXAS, Appellee ____________________________________________
APPEAL FROM TH THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS TRIAL COURT NO. 1423904 ____________________________________________
APPELLEE’S MOTION FOR REHEARING ____________________________________________
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 REQUESTED IF NECESSARY
Appellee’s Motion for Rehearing 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 CODY LANG THOMAS Martin Braddy 121 Oak Avenue, Suite A Sulphur Springs, Texas 75482 903.885.2040 telephone 500.885.2704 facsimile
Appellant’s trial counsel Wade Forsman Post Office Box 918 Sulphur Springs, TX 75482 903.243.1775 telephone wade@forsmanlaw.com
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 Motion for Rehearing Page 1 TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS as Appellee, who files this
Motion for Rehearing, and respectfully asks this Court to reform its opinion of
November 20, 2015 by setting aside the judgment in this case and remand the case
to the trial court for a new trial in its entirety as opposed to a new punishment
hearing. In support thereof, Appellant shows as follows:
I.
1. This case was originally indicted as the 3rd degree felony offense of
Engaging in Organized Criminal Activity. (C.R. pg. 4) The underlying felony
offense was a State Jail Theft. See Id. As seen throughout the entirety of the
record, both the defense and the State (erroneously) believed this case (as charged)
could ultimately be punished under the Habitual Felon Statute resulting in a
punishment range of 25 years to 99 years or Life in prison. (See R.R. Vol. 2 pg. 7;
See RR. Vol. 3 pg. 5) In exchange for the defendant’s plea of guilty, the State
agreed to drop the enhancement of “engaging in organized criminal activity” and
move forward on the enhanced State Jail Theft (which we now know was
improperly enhanced). (R.R. Vol. 3 pg. 6)
2. The defendant believed that he was ultimately looking at a punishment range
of 25 to life. The State agreed to reduce the charge wherein the range of
punishment would be capped at 20 years. Both the State and the defendant entered
Appellee’s Motion for Rehearing Page 2 into this agreement erroneously and without a full understanding of the outcome of
their decision. It is very possible, knowing that his only exposure was 20 years in
prison, that the defendant would not have pled guilty to this offense. A maximum
of life in prison and the maximum of 20 years in prison are quite different.
3. On the other hand, the State very likely would not have entered into this
agreement knowing they would be limited to punishment at 2 years in the State
Jail. As already stated, the original charge was a 3rd Degree Felony. The
defendant had one non-state jail felony conviction that would have absolutely
enhanced the punishment range from 10 years confinement to a maximum of 20
years confinement.
4. As embarrassing as it is to admit, nobody involved in this plea process was
aware of the proper range of punishment. The defendant thought he had dodged a
bullet by pleading to a lesser punishment range. The prosecutor thought that he
had secured a guilty plea while remaining in an appropriate punishment range (2-
20 years) that he would satisfy the victim. Finally, the judge approved the plea
agreement and admonished the defendant on the punishment range that everyone
was misunderstanding.
5. While the record is abundantly clear that this was not a plea agreement
entered into knowingly and intelligently by the parties, the defendant suffered no
harm by the mishandling. (Unless, of course, he would not have pled guilty at all
Appellee’s Motion for Rehearing Page 3 if he would have known the punishment was capped at 20 years!) The defendant
has spent almost two years in prison, which would be the maximum sentence for a
State Jail offense. As it stands now, he looks to walk out of jail in a much better
position than he ever dreamed.
6. There could be an in-depth discussion of whether the defendant’s plea was
knowing and voluntary under Boykin v. Alabama. 395 U.S. 238 (1969). The State
would contend that an entire record showing that the parties were entering into an
agreement where everyone was mistaken, is prima facie evidence that due process
was violated. Even under that analysis, we would then be looking to see whether
the error was harmful. While not necessarily harmful to the defendant, the
outcome after appeal is extremely harmful to the plea agreement between the
parties.
7. If a defendant successfully challenges a conviction obtained through a
negotiated plea of guilty, the proper remedy is specific performance of the plea
agreement, if possible. Shannon v. State, 708 S.W.2d 850, 852
(Tex.Crim.App.1986).
8. This case is different than many appeals. The issue is not that a party did not
get a desired outcome. It is no surprise that the defendant will appeal after
receiving the maximum sentence. But, until the appeals process, nobody thought
what the defendant received was outside of the range of punishment. This is
Appellee’s Motion for Rehearing Page 4 because the crux of the original plea agreement dealt with removing the EOCA
language in the indictment and capping the punishment at 20 years in the
penitentiary. The Defendant readily admitted and pled true to the two
enhancement paragraphs in order to obtain this benefit. The understanding of the
parties was clear from the record: there could be a sentence of two years or a
sentence of 20 years in the penitentiary. Punishment in the State Jail was never
envisioned when entering into this plea agreement.
8. The Court of Criminal Appeals has looked at this issue a number of times.
In Ex Parte Aaron Allen Adkins, there was an agreement between the parties that a
deadly weapon finding would be part of the judgment. See 767 S.W.2d 809, 810
(Tex. 1989). While the Court agreed that there was no evidence to support a
deadly weapon finding, they also opined that “the result of deleting the finding
without disturbing the remainder of the bargain would be to adjust the tenor of the
‘mutual obligation’ entered into by the parties” and it would “create a new bargain
not contemplated by the parties or the trial court when it accepted the plea
agreement and entered its judgment accordingly.” Id. at 811. Therefore, the Court
held that “specific performance of the agreement, without an essential portion of
the essence of the agreement….is an unacceptable remedy.” Id. The Court then
set the plea bargain aside in order to “place the parties once again on equal grounds
Appellee’s Motion for Rehearing Page 5 in relation to their bargaining positions which led to the initial plea agreement.”
Id.
9. Also, in Ex Parte Billy Ross Sims, the Court of Criminal Appeals addressed
a similar issue. 868 S.W.2d 803 (Tex.Crim.App. 1993) overruled on other
grounds Ex Parte McJunkins, (Tex.Crim.App. 1997). There, the parties had an
agreement that the cases being pleaded would run consecutively. See id. The
Court later reversed this position, but, at that time, held that the parties could not
agree to such an action. After deciding that the consecutive sentences were
improper, the Court had to determine the relief. The Court ultimately decided that
the parties “agreed, although erroneously, that the imposition of consecutive
sentences was an available option.” Id. at 805. The Court also decided this was an
important part of the plea agreement. See id. “If this Court were to simply delete
the cumulation order only the State would be bound detrimentally to this aspect of
the agreement. This is neither logical nor fair. Specific performance of the
bargained-for [agreement] cannot be obtained. The parties must be returned to
their positions prior to the plea of guilty.” Id.
10. Probably the largest contributing factor to entering into the plea agreement
in the case before this Court is the abandonment of the EOCA language and
proceeding as an enhanced second degree. This was pivotal to both the defendant
and the State. There was no agreement to move forward on a mere State Jail
Appellee’s Motion for Rehearing Page 6 Felony. To move forward as a State Jail felony would be to detrimentally bound
the State to what was never envisioned by the parties.
CONCLUSION
The November 20th opinion by this Court is well reasoned on the issue of
proper enhancement. However, remanding this case for a punishment hearing
within a range never contemplated by the parties would be a miscarriage of justice.
PRAYER
WHEREFORE, premises considered, Appellee, State of Texas, respectfully
requests this Court to grant his Motion for Rehearing, issue a new opinion setting
aside the judgment of the trial court, remanding this case for a new trial on the
merits, and for any further relief the Appellee may be entitled.
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
Appellee’s Motion for Rehearing Page 7 C ERTIF ICATE OF W ORD C OUNT
Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 1,593 words.
__/s/ Will Ramsay_ Will Ramsay
C ERTIF ICATE OF S ERVICE
This is to certify that on December 22, 2015, I served a true and correct copy of the above and foregoing Appellant’s Brief by email on Martin Braddy, Attorney for Appellant.
Appellee’s Motion for Rehearing Page 8