ACCEPTED 06-15-00110-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 9/16/2015 4:57:26 PM DEBBIE AUTREY CLERK
IN THE COURT OF APPEALS FILED IN SIXTH DISTRICT OF TEXAS 6th COURT OF APPEALS TEXARKANA, TEXAS 9/17/2015 8:29:00 AM TEXARKANA, TEXAS DEBBIE AUTREY Clerk DEREK CLINTON WARD Appellant
Vs 06-15-00110-CR
THE STATE OF TEXAS Appellee
ON APPEAL FROM
THE 124TH JUDICIAL DISTRICT COURT
OF GREGG COUNTY, TEXAS
TRIAL COURT NO. 42,433-B
BRIEF ON BEHALF OF APPELLANT
TIM CONE State Bar #04660350 P.O. Box 413 Gilmer, Texas 75644 (903) 725-6270 e-mail: timcone6@aol.com
ATTORNEY FOR THE APPELLANT 2
IDENTITY OF PARTIES AND COUNSEL
DEREK CLINTON WARD P.O. BOX 127 MT. ENTERPRIZE, TEXAS 75681 APPELLANT
LANCE LARISON P.O.BOX 232 LONGVIEW, TEXAS 75606 APPELLANT’S COUNSEL AT TRIAL
CHRIS PARKER, GREGG COUNTY ASST. CRIM. DIST. ATTORNEY 101 E. METHVIN LONGVIEW, TEXAS 75601 APPELLEE’S COUNSEL AT TRIAL
TIM CONE P.O. BOX 413 GILMER, TX 75644 APPELLANT’S COUNSEL ON APPEAL
ZAN BROWN GREGG COUNTY ASSIST. CRIM. DIST. ATTORNEY 101 E. METHVIN LONGVIEW, TEXAS 75601 APPELLEE’S COUNSEL ON APPEAL 3
TABLE OF CONTENTS
Page No. List of Parties and Counsel……………………………………………. 2
Table of Contents……………………………………………………… 3
Index of Authorities…………………………………………………… 4
Statement of the Case…………………………………………………. 6
Point of Error Number One…………………………………………… 7,10 The trial court did not act as a neutral and detached fact finder.
Statement of Facts……………………………………………………. 8
Summary of Argument………………………………………………. 10
Conclusion and Prayer……………………………………………….. 12
Certificate of Compliance……………………………………………. 12
Certificate of Service………………………………………………… 13 4
INDEX OF AUTHORITIES
PAGE CONSTITUTIONS:
14TH Amendment, U.S. Constitution………………………… 10
STATE CASES:
Dockstader v. State, 233 SW 3d 98 (Tex.App.Houston[14th Dist.] 2007……………………………………………………. 10 Johnson v. State, 452 SW 3d 398 (Tex.App.Amarillo 2014)…. 10
STATUTES:
Texas Code of Criminal Procedure, Art. 1.04……………….. 10 5
NO. 06-15-00110-CR
IN THE
COURT OF APPEALS
FOR THE
SIXTH JUDICIAL DISTRICT OF TEXAS
DEREK CLINTON WARD, APPELLANT VS.
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,
hereinafter referred to as Appellant, and submits this brief in support of reversing the
judgment and sentence pursuant to the provisions of the Texas Rules of Appellate
Procedure in Cause No. 06-15-00110-CR in the 124th Judicial District Court of Gregg
County, Texas, (Trial Court Cause No. 42,433-B). 6
STATEMENT OF THE CASE
The Appellant was indicted by the Gregg County Grand Jury for the offense of
State Jail Felony Theft on March 28, 2013. CR4. On May 16, 2014, the Appellant
waived his right to a jury trial. 2RR. There was an announcement that the disposition
of the case would an open plea. On July 7, 2014, the case was called and an
announcement was made that the Appellant was going to hire counsel (previous
counsel was court appointed). 3RR3 ( The page numbers for this volume of the
Reporter’s Record are an educated guess as the copy received by counsel did not have
page numbers. However, this volume is very short.) At this hearing, court appointed
counsel advised she was going to file a Motion to Withdraw in the case. 3RR5. With
new counsel, the Appellant entered a guilty plea on April 9, 2015. 4RR4. Again, there
was an indication that the disposition would be an open plea but there was a
statement made by the State that indicated there may be a plea bargain, as well.
4RR5. Nonetheless, the trial court admonished the Appellant regarding the process of
an open plea. 4RR5. On May 21, 2015, the sentencing hearing was held. The process
was that of an open plea as the record indicated the State would recommend
probation as a plea bargain if the Appellant paid restitution on the day of sentencing
but the Appellant failed to do so. 5RR26. The trial court assessed punishment at 22
months confinement in State Jail. The Appellant now brings this appeal to reverse
the sentence assessed. 7
For clarity, THE STATE OF TEXAS will be referred to as “the State”, and
Derek Clinton Ward will be referred to as “Defendant” or “Appellant.”
ISSUES PRESENTED
POINT OF ERROR NUMBER ONE
The trial court did not act as a neutral and detached fact finder. 8
STATEMENT OF THE FACTS
Since sufficiency of the evidence is not a point of error, a fairly short
rendition of the facts will suffice. Further, the record is not long or particularly
complicated. The Appellant was employed by the victim in the case. Although there
was a suspicion on the part of the employer that the Appellant had abused the
company credit card, no such allegation was alleged or proven.5RR5. Nevertheless,
the employer decided the Appellant had abused the credit card privilege and withheld
the Appellant’s last paycheck as a result of his belief-a belief that was either untrue or
there was insufficient evidence to prove the belief.5RR11,12. The Appellant felt he
was being treated unfairly by the employer withholding his earned paycheck and he
took a welding machine and attached cables belonging to the business and pawned
them.5RR21,23; State’s Exhibit 2. Thus, the allegation in the indictment of theft. The
Appellant admitted his guilt in the theft.5RR23.
Some of the process in resolving the case was stated in the previous section of
this brief and will not be needlessly repeated here. Apparently, there was an
agreement that the State would recommend a probation if the Appellant paid full
restitution on the date of sentencing but if he did not so pay, the sentencing would
proceed as an open plea and the trial court would set the punishment without a plea
bargain.4RR5;5RR26,27,39. On the day of sentencing, the Appellant did not have the 9
full restitution.5RR27. The value of the welding machine was apparently either
$3500 or $3750 and the Appellant came to sentencing with $1000 (his mother’s
money).5RR23;CR28;State’s Exhibit 2.. The Appellant explained, in testimony, that
he gotten laid off and had no income.5RR14. He also testified his unemployment
income was to begin soon.5RR15 He also testified he had undergone 4 spinal
surgeries, had a rod in his back and that he was in a great deal of pain.5RR16,17. He
also testified he was not working to let his back heal better.5RR16,28. This matter
had been explained to the officer who prepared the Presentence Investigation Report
submitted to the trial court.5RR16,17. The trial court took the role of interrogation at
the hearing by asking the Appellant when he had last worked in the oil field and
accused the Appellant of taking a vacation for a month and a half instead of trying to
get the restitution.5RR28-30. When sentencing the Appellant to 22 months
confinement, the trial court told the Appellant that he should have gotten any job-
even flipping burgers at McDonald’s-to get the restitution and again suggesting the
Appellant had simply taken a vacation instead of working on the
restitution.5RR40,41. The trial court added that he would be unlikely to approve the
20% reduction in sentence that is allowed by law for State Jail sentences.5RR41. 10
SUMMARY OF THE ARGUMENT
While this case is somewhat unusual in that there was a plea bargain for
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ACCEPTED 06-15-00110-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 9/16/2015 4:57:26 PM DEBBIE AUTREY CLERK
IN THE COURT OF APPEALS FILED IN SIXTH DISTRICT OF TEXAS 6th COURT OF APPEALS TEXARKANA, TEXAS 9/17/2015 8:29:00 AM TEXARKANA, TEXAS DEBBIE AUTREY Clerk DEREK CLINTON WARD Appellant
Vs 06-15-00110-CR
THE STATE OF TEXAS Appellee
ON APPEAL FROM
THE 124TH JUDICIAL DISTRICT COURT
OF GREGG COUNTY, TEXAS
TRIAL COURT NO. 42,433-B
BRIEF ON BEHALF OF APPELLANT
TIM CONE State Bar #04660350 P.O. Box 413 Gilmer, Texas 75644 (903) 725-6270 e-mail: timcone6@aol.com
ATTORNEY FOR THE APPELLANT 2
IDENTITY OF PARTIES AND COUNSEL
DEREK CLINTON WARD P.O. BOX 127 MT. ENTERPRIZE, TEXAS 75681 APPELLANT
LANCE LARISON P.O.BOX 232 LONGVIEW, TEXAS 75606 APPELLANT’S COUNSEL AT TRIAL
CHRIS PARKER, GREGG COUNTY ASST. CRIM. DIST. ATTORNEY 101 E. METHVIN LONGVIEW, TEXAS 75601 APPELLEE’S COUNSEL AT TRIAL
TIM CONE P.O. BOX 413 GILMER, TX 75644 APPELLANT’S COUNSEL ON APPEAL
ZAN BROWN GREGG COUNTY ASSIST. CRIM. DIST. ATTORNEY 101 E. METHVIN LONGVIEW, TEXAS 75601 APPELLEE’S COUNSEL ON APPEAL 3
TABLE OF CONTENTS
Page No. List of Parties and Counsel……………………………………………. 2
Table of Contents……………………………………………………… 3
Index of Authorities…………………………………………………… 4
Statement of the Case…………………………………………………. 6
Point of Error Number One…………………………………………… 7,10 The trial court did not act as a neutral and detached fact finder.
Statement of Facts……………………………………………………. 8
Summary of Argument………………………………………………. 10
Conclusion and Prayer……………………………………………….. 12
Certificate of Compliance……………………………………………. 12
Certificate of Service………………………………………………… 13 4
INDEX OF AUTHORITIES
PAGE CONSTITUTIONS:
14TH Amendment, U.S. Constitution………………………… 10
STATE CASES:
Dockstader v. State, 233 SW 3d 98 (Tex.App.Houston[14th Dist.] 2007……………………………………………………. 10 Johnson v. State, 452 SW 3d 398 (Tex.App.Amarillo 2014)…. 10
STATUTES:
Texas Code of Criminal Procedure, Art. 1.04……………….. 10 5
NO. 06-15-00110-CR
IN THE
COURT OF APPEALS
FOR THE
SIXTH JUDICIAL DISTRICT OF TEXAS
DEREK CLINTON WARD, APPELLANT VS.
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,
hereinafter referred to as Appellant, and submits this brief in support of reversing the
judgment and sentence pursuant to the provisions of the Texas Rules of Appellate
Procedure in Cause No. 06-15-00110-CR in the 124th Judicial District Court of Gregg
County, Texas, (Trial Court Cause No. 42,433-B). 6
STATEMENT OF THE CASE
The Appellant was indicted by the Gregg County Grand Jury for the offense of
State Jail Felony Theft on March 28, 2013. CR4. On May 16, 2014, the Appellant
waived his right to a jury trial. 2RR. There was an announcement that the disposition
of the case would an open plea. On July 7, 2014, the case was called and an
announcement was made that the Appellant was going to hire counsel (previous
counsel was court appointed). 3RR3 ( The page numbers for this volume of the
Reporter’s Record are an educated guess as the copy received by counsel did not have
page numbers. However, this volume is very short.) At this hearing, court appointed
counsel advised she was going to file a Motion to Withdraw in the case. 3RR5. With
new counsel, the Appellant entered a guilty plea on April 9, 2015. 4RR4. Again, there
was an indication that the disposition would be an open plea but there was a
statement made by the State that indicated there may be a plea bargain, as well.
4RR5. Nonetheless, the trial court admonished the Appellant regarding the process of
an open plea. 4RR5. On May 21, 2015, the sentencing hearing was held. The process
was that of an open plea as the record indicated the State would recommend
probation as a plea bargain if the Appellant paid restitution on the day of sentencing
but the Appellant failed to do so. 5RR26. The trial court assessed punishment at 22
months confinement in State Jail. The Appellant now brings this appeal to reverse
the sentence assessed. 7
For clarity, THE STATE OF TEXAS will be referred to as “the State”, and
Derek Clinton Ward will be referred to as “Defendant” or “Appellant.”
ISSUES PRESENTED
POINT OF ERROR NUMBER ONE
The trial court did not act as a neutral and detached fact finder. 8
STATEMENT OF THE FACTS
Since sufficiency of the evidence is not a point of error, a fairly short
rendition of the facts will suffice. Further, the record is not long or particularly
complicated. The Appellant was employed by the victim in the case. Although there
was a suspicion on the part of the employer that the Appellant had abused the
company credit card, no such allegation was alleged or proven.5RR5. Nevertheless,
the employer decided the Appellant had abused the credit card privilege and withheld
the Appellant’s last paycheck as a result of his belief-a belief that was either untrue or
there was insufficient evidence to prove the belief.5RR11,12. The Appellant felt he
was being treated unfairly by the employer withholding his earned paycheck and he
took a welding machine and attached cables belonging to the business and pawned
them.5RR21,23; State’s Exhibit 2. Thus, the allegation in the indictment of theft. The
Appellant admitted his guilt in the theft.5RR23.
Some of the process in resolving the case was stated in the previous section of
this brief and will not be needlessly repeated here. Apparently, there was an
agreement that the State would recommend a probation if the Appellant paid full
restitution on the date of sentencing but if he did not so pay, the sentencing would
proceed as an open plea and the trial court would set the punishment without a plea
bargain.4RR5;5RR26,27,39. On the day of sentencing, the Appellant did not have the 9
full restitution.5RR27. The value of the welding machine was apparently either
$3500 or $3750 and the Appellant came to sentencing with $1000 (his mother’s
money).5RR23;CR28;State’s Exhibit 2.. The Appellant explained, in testimony, that
he gotten laid off and had no income.5RR14. He also testified his unemployment
income was to begin soon.5RR15 He also testified he had undergone 4 spinal
surgeries, had a rod in his back and that he was in a great deal of pain.5RR16,17. He
also testified he was not working to let his back heal better.5RR16,28. This matter
had been explained to the officer who prepared the Presentence Investigation Report
submitted to the trial court.5RR16,17. The trial court took the role of interrogation at
the hearing by asking the Appellant when he had last worked in the oil field and
accused the Appellant of taking a vacation for a month and a half instead of trying to
get the restitution.5RR28-30. When sentencing the Appellant to 22 months
confinement, the trial court told the Appellant that he should have gotten any job-
even flipping burgers at McDonald’s-to get the restitution and again suggesting the
Appellant had simply taken a vacation instead of working on the
restitution.5RR40,41. The trial court added that he would be unlikely to approve the
20% reduction in sentence that is allowed by law for State Jail sentences.5RR41. 10
SUMMARY OF THE ARGUMENT
While this case is somewhat unusual in that there was a plea bargain for
probation if the Appellant paid full restitution up front but no plea bargain if he did
not pay, all parties apparently agreed to this disposition so a suggestion that the
proposal was inappropriate would be useless. However, the error in the case took
place at sentencing. The trial court seemed to take on the role of prosecutor and
abandoned his role a neutral and detached fact finder, which is the appropriate role
under Due Process and Due Course of Law.
The trial court did not act as a neutral and detached fact finder.
ARGUMENT
The Due Process Clause of the 14th Amendment to the U.S. Constitution and
the concept of Due Course of Law as set out in the Texas Code of Criminal
Procedure, Art. 1.04 require that an accused is due the judgment of a neutral and
detached fact finder at trial and throughout the judicial process. This concept is
fundamental the concept of criminal justice in the United States and, specifically,
Texas. Dockstader v. State, 233 S.W.3d 98 (Tex.App-Houston[14thDist.] 2007) and
Johnson v. State, 452 S.W.3d 398 (Tex.App. Amarillo 2014). Appellant’s attorney 11
could cite numerous other case and authorities for this proposition but the concept is
so well established that it is not necessary. The question here is whether the trial court
stepped out of that role in the case at bar and lost that quality of neutrality and
detachment. While Appellant’s counsel has very high regard for this trial judge and
has often seen this trial court judge perform this sometimes difficult task of neutrality
and detachment at the highest level, in the case at bar the trial court failed to do so.
The basic deal in the case at bar was that if the Appellant paid full restitution of
$3750 at sentencing, he would receive a probation but, if not, the plea would proceed
as an open plea and the full range of punishment would be open to the trial court. The
evidence at the sentencing hearing clearly showed the Appellant had limited financial
resources in that he had 4 back surgeries, a rod in his back and was in constant pain.
Yet, through the questioning by the trial court, it was clear the trial court believed the
Appellant was malingering. The record does not reflect malingering. The suggestion
by the trial court that the Appellant was taking a vacation under the physical
condition suffered by the Appellant shows the lack of neutrality and appropriate
detachment. The suggestion by the trial court that the Appellant would be unlikely to
receive the 20% time reduction that is available to State Jail offenders further shows
the trial court lost those essential qualities of neutrality and detachment. The only
proper resolution in the case at bar is to reverse the sentence of the trial court and
remand the case for a new punishment hearing. 12
CONCLUSION AND PRAYER
For the reasons herein alleged, the sentence of the trial court should be reversed
and remanded for a new punishment hearing.
Respectfully submitted,
/s/Tim Cone ____________________ TIM CONE Attorney At Law P.O. Box 413 Gilmer, Texas 75644 e-mail: timcone6@aol.com ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Texas Rules of Appellate Procedure, Rule 9 regarding length of documents, in that exclusive of caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix, it consists of 1775 words.
/s/Tim Cone ______________________
TIM CONE ATTORNEY FOR APPELLANT 13
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s Brief has been provided to the Honorable Zan Brown, Gregg County Assistant Criminal District Attorney on September 16, 2015.
/s/Tim Cone _____________________________ TIM CONE Attorney At Law