Case Information
*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 11/28/2015 5:41:54 PM PAM ESTES Clerk *1 ACCEPTED 12-15-00195-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 11/30/2015 12:00:00 AM Pam Estes CLERK
ORAL ARGUMENT NOT REQUESTED NO. 12-15-00195-CR
IN THE COURT OF APPEALS 12 TH JUDICIAL DISTRICT TYLER, TEXAS
STEVEN MOORE,
APPELLANT
VS. THE STATE OF TEXAS, APPELLEE
ON APPEAL IN CAUSE NUMBER 007-0446-15 FROM THE 7 TH 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:
Steven Moore
APPELLANT’S TRIAL COUNSEL:
O.W. Loyd
1507 Frost Street
Gilmer, Texas 75644
903-843-9469
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
Morgan Biggs
Brent Ratekin
Smith County Criminal District Attorney’s Office 100 N. Broadway, 4 th 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, 4 th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
ii *3 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Issue One: 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 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 course of law under the Texas Constitution.
STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. The Law Requires a Neutral Tribunal. . . . . . . . . . . . . . . . . . . . 4 B. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. Structural Error Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 iii
D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . . 7 PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iv *5 TABLE OF AUTHORITIES CONSTITUTIONS
U.S. C ONST . Amend. XIV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
T EX . C ONST . art. I, §19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATUTES
T EX . P ENAL C ODE A NN . § 12.42(d) (West 2014). . . . . . . . . . . . . . . . . . . . 3
T EX . H EALTH AND S AFETY C ODE A NN . §481.112 (West 2014).. . . . . . . 1, 3
CASES
Arizona v. Fulminante, 4449 U.S. 279, 111 S. Ct. 1246,
113 L.Ed.2d 302 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005). . . . . . . . . . . . 5
Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006). . . . . . . . . . . . 5
Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.2d (1973). . 5
Lagrone v. State, 84 Tex. Crim. 609, 209 S.W. 411 (1919). . . . . . . . . . . 5
McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983). . . . . . . . . . 6
Texeira v. State, 89 S.W.3d 190 (Tex. App. – Texarkana
2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
RULES
T EX . R. A PP . P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
T EX . R. A PP . P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
v
NO. 12-15-00195-CR
STEVEN MOORE , § IN THE COURT OF APPEALS
APPELLANT §
§ § 12 TH JUDICIAL DISTRICT
VS.
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF TO THE HONORABLE COURT OF APPEALS
AND THE JUSTICES THEREOF:
Steven Moore (“Appellant”), by and through his attorney of record, James Huggler, and pursuant to the provisions of T EX . R. A PP . P ROC .38,
et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE Appellant was indicted for the first degree felony offense of possession with intent to deliver a controlled substance, cocaine, in an
amount of between four and two hundred grams. I CR 4. [1] T EX . H EALTH
*7 AND S AFETY C ODE A NN . §481.12(a) and (d) (West 2014). Prior to jury
selection, Mr. Moore entered a plea of guilty without an agreement to the
indictment, and true pleas to the enhancements. I CR 43 and 46, III RR
54, 55 and 64. [2] Following evidence and argument of counsel at a later
hearing, the trial court imposed a thirty-five year sentence. I CR 59; IV
RR 20. Notice of appeal was timely filed on August 6, 2015. I CR 66.
This brief is timely filed on or before November 30, 2015.
ISSUES PRESENTED Issue One: 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 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 course of law under the Texas
Constitution.
*8 STATEMENT OF THE FACTS The case involves possession of cocaine with intent to distribute. I CR 4; T EX . H EALTH AND S AFETY C ODE §§ 481.112(a) and (d) (West 2014).
This first degree felony was enhanced to a habitual offense by the
inclusion of two previous sequential felony convictions. I CR 4. T EX .
P ENAL C ODE A NN . §12.42(d) (West 2014). Prior to the selection of a jury,
and on the day of trial, Mr. Moore entered a plea of guilty without an
agreement to the offense as alleged including the enhancement
paragraphs. I CR 43; III RR 54. Following the admission of the
stipulation, the trial court found Mr. Moore guilty of the offense, the
enhancement paragraphs true and recessed for a later punishment
hearing. III RR 73. Following evidence and argument of counsel, the
court sentenced Mr. Moore to thirty-five years confinement, no fine and
court costs were assessed. IV RR 20; I CR 59-60.
Counsel has reviewed the record in the case thoroughly, and presents two issues. A discussion of relevant facts for those issues is
included in the argument section of this brief.
SUMMARY OF ARGUMENT By finding Mr. Moore guilty of the offense with only the stipulation of evidence before him, the trial court necessarily foreclosed any option,
even a remote one, of allowing the finding of guilt be deferred. This
prevented even the opportunity to seek a possible resolution in the case.
ARGUMENT
Issue One, 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 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 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. C ONST . 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. T EX .
C ONST . 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);
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.
*11 2005); McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983).
B. Application to These Facts Mr. Moore entered his plea of guilty, the stipulation of evidence and was almost immediately found guilty by the trial court prior to any
evidence regarding punishment in the case. While the trial court knew
the state had alleged prior convictions, the court, at that point in time, did
not know if there might be some set of circumstances which would make
the appropriate resolution in the case being to defer a finding of guilt and
allow Mr. Moore the opportunity to prove himself to the court. I CR 4, 15-
16. While that possibility is remote for a habitual offender, the law still
allows a deferral of guilt to occur in this case.
The State may argue that because of the motion to suppress, and a lengthy discussion of the facts and a review of video evidence prior to the
entry of the plea, the trial court had enough information to make this
determination. III RR 4-48. However, that only concerned the actions on
the day alleged in the indictment, and the court would not have been
aware of any other circumstances in Mr. Moore’s life which might affect
a sentencing decision.
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.
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.
D. Remedy and Relief Requested The judgment of conviction should be reversed and the case remanded to the trial court, the trial court should be recused and a
neutral magistrate should hear the revocation proceedings or assess
sentence.
PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED , Appellant respectfully pays that the trial court’s judgment be reversed in accordance with the
first and second 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
jhugglerlaw@sbcglobal.net
ATTORNEY FOR APPELLANT
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 or electronic filing on
this the 28 th day of November, 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, 4 th Floor
Tyler, Texas 75702
CERTIFICATE OF COMPLIANCE I certify that in compliance with T EX . R. A PP . P. 9.4, this document
contains 1, 906 words as calculated by Corel WordPerfect version X5 using
14 point Century font and complies with the other requirement of Rule
9.4.
/s/ James Huggler
James W. Huggler, Jr.
[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.
[2] References to the Reporter’s Record are made using “RR” with a roman numeral preceding “RR” indicating the correct volume and an arabic number following specifying the correct page.