ACCEPTED
06-15-00026-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/15/2015 10:36:12 AM
DEBBIE AUTREY
CLERK
NO. 06-15-00026-CR
NO. 06-15-00027-CR
NO. 06-15-00028-CR FILED IN
6th COURT OF APPEALS
IN THE TEXARKANA, TEXAS
SIXTH COURT OF APPEALS 4/15/2015 10:36:12 AM
OF TEXAS DEBBIE AUTREY
TEXARKANA, TEXAS Clerk
_______________________________
ROGER DALE GAMMONS,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
___________________________________________________
On Appeal from the 8th Judicial District Court
of Hopkins County, Texas
Trial Court Cause No. 1423872
Trial Court Cause No. 1423872
Trial Court Cause No. 1423872
___________________________________________________
BRIEF FOR THE APPELLANT
___________________________________________________
J. Edward Niehaus
207 W. Hickory St. Suite 309
Denton, Texas 76201
TELEPHONE (940) 600-1295
FACSIMILE (888) 821-2890
STATE BAR NO. 24074812
Jason@BNDlegal.com
ATTORNEY FOR APPELLANT
Oral Argument Not Requested
Identity of Parties and Counsel
1. Trial Judge: The Honorable Eddie Northcutt, Presiding Judge of the 8 TH
Judicial District Court of Hopkins County, 110 Main St. Sulphur Springs, TX
75482.
2. Appellant: Roger Dale Gammons, TDC #01978521 , BYRD Unit, 21 FM
247, Huntsville, TX 77320.
3. Counsel for Appellant:
a. Trial Court: Heath Hyde, 900 Jackson St. Suite 535, Dallas, TX 75202.
b. Direct Appeal: J. Edward Niehaus, 207 W. Hickory St. Suite 309, Denton,
Texas 76201.
4. Counsel for the State of Texas:
a. The State of Texas was represented by Will Ramsay, Hopkins County
District Attorney, and Mr. Peter Morgan, Assistance District Attorney, at the trial
court level and in this appeal.
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument. The decisional process of this
Court would not be significantly aided by oral argument since the facts and legal
arguments are adequately presented in the brief submitted to this Court by the
Appellant.
Appellant's Opening Brief i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL..............................................................i
STATEMENT REGARDING ORAL ARGUMENT.................................................i
TABLE OF CONTENTS..........................................................................................ii
INDEX OF AUTHORITIES....................................................................................iii
STATEMENT OF THE CASE.................................................................................iv
ISSUES PRESENTED..............................................................................................v
STATEMENT OF FACTS.........................................................................................1
SUMMARY OF THE ARGUMENT.........................................................................5
APPELLANT'S ISSUE NO. ONE............................................................................6
Appellant's Plea of Guilty was Involuntarily Entered Where Appellant was
Incompletely Admonished Regarding His Eligibility for Probation. ....................6
APPELLANT'S ISSUE NO. TWO.........................................................................10
The Court Erred by Failing to Recuse Himself Where the Court had Personal
Knowledge of Disputed Facts Relating to Appellant's Enhancement Paragraph(s)
..............................................................................................................................10
APPELLANT'S ISSUE NO. THREE......................................................................10
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. ......................................10
PRAYER..................................................................................................................14
CERTIFICATE OF SERVICE.................................................................................14
CERTIFICATE OF COMPLIANCE.......................................................................14
Appellant's Opening Brief ii
Index of Authorities
Cases
Aguirre-Mata v. State, 125 S.W.3d 473 (Tex. Crim. App. 2003)...............................6
Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969)
............................................................................................................14, 15, 18
Cabezas v. State, 848 S.W.2d 693 (Tex. Crim. App. 1993)...............................17, 19
Carranza v. State, 980 S.W.2d 653 (Tex.Cr.App. 1998)..........................................11
DeVary v. State, 615 S.W.2d 739 (Tex.Cr.App. 1981).............................................11
Easton v. State, 2001 Tex. App. LEXIS 7179, 7, 2001 WL 1289945
(Tex. App. Houston 14th Dist. Oct. 25, 2001)(memo. op.).................27, 28, 30
Ex parte Evans, 690 S.W.2d 274 (Tex. Crim. App. 1985)...................................9, 10
Ex parte McAtee, 599 S.W.2d 335 (Tex.Cr.App. 1980)...........................................11
Ex Parte Shuflin, 528 S.W.2d 610 (Tex.Crim.App. 1975)......................................18
Ex parte Smith, 678 S.W.2d 78 (Tex. Crim. App. 1984).........................................11
Ex parte Williams, 704 S.W.2d 773 (Tex. Crim. App. 1986)....................................6
Gaal v. State, 332 S.W.3d 448 (Tex. Crim. App. 2011)...................20, 22, 23, 24, 28
Gamez v. State, 737 S.W.2d 315 (Tex. Crim. App. 1987)........................................25
Gibson v. State, 747 S.W.2d 68 (Tex. App.-- Corpus Christi 1988, no pet.).............9
Gonzales v. State, 746 S.W.2d 902 (Tex. App. – Corpus Christi 1988)..................10
Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556
(Tex. App.—Beaumont 1993, writ denied).....................................................22
Harrison v. State, 688 S.W.2d 497 (Tex. Crim. App. 1985)......................................6
Hathorne v. State, 459 S.W.2d 826 (Tex. Crim. App. 1970)...........27, 28, 29, 30, 31
Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2D 108 (1976).....15
Holifield v. State, 538 S.W.2d 123 (Tex.Cr.App. 1976)...........................................25
Lackey v. State, 364 S.W.3d 837 (Tex. Crim. App. 2012).................................20, 24
Lee v. State, 555 S.W.2d 121 (Tex. Crim. App. 1977).............................................28
Morsman v. State, 2013 Tex. App. LEXIS 6177, 3, 2013 WL 2247322
(Tex. App. Texarkana May 21, 2013)(memo. op.)..............................25, 26, 29
Mosley v. State, 141 S.W.3d 816 (Tex. App.—Texarkana 2004, pet. ref'd))...........22
Munoz v. State, 840 S.W.2d 69 (Tex. App.--Corpus Christi 1992, pet. ref'd)............9
Prado v. State, Nos. 05-05-00175-CR & 05-05-00525-CR, 2006 WL 1792736
(Tex. App.—Dallas 2006, no pet.) (memo. op.)................................................6
Taylor v. State, 610 S.W.2d 471 (Tex. Crim. App. 1980)........................................15
Rules
Appellant's Opening Brief iii
Preamble, Tex. R. Disciplinary Prof Cond..............................................................32
Tex.R.App.P. 43.2(d)...................................................................................20, 24, 33
Tex.R.App.P. 44.2(a)..........................................................................................20, 25
Tex.R.App.P. 44.2(b).................................................................................................6
Tex.R.App.P. 47.7....................................................................................................26
Tex.R.Civ.P. 18(b)(3)...................................................................................23, 25, 32
Tex.R.Civ.P. 18(b)(5).........................................................................................25, 27
Statutes
Tex.Code Crim. Proc. Ann. art 2.01........................................................................32
Tex.Code Crim. Proc. Ann. art 26.13..............................................................8, 9, 10
Tex.Code Crim. Proc. Ann. art 30.01..........................................................26, 27, 28
Tex.Code Crim. Proc. Ann. art. 42.12 sec. 3(e)(1)............................................13, 16
Tex.Code Crim. Proc. Ann. art. 42.12 sec. 4(d)(1)............................................13, 14
Tex.Pen.Code §12.42(c)(1)......................................................................................16
Constituion
Tex. Const. Art. V, § 11......................................................................................20, 25
Other Authorities
47 TEX. JUR. 3d Judges § 70 (2007)........................................................................22
48B Robert P. Schuwerk & Lillian B. Hardwick, TEXAS PRACTICE SERIES:
HANDBOOK OF TEXAS LAWYER AND JUDICIAL ETHICS....................................23, 28, 32
TEX.JUR.3D, VOL. 21, CRIM.LAW, § 1861 ................................................................25
Statement of Case
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 8 TH
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).
ISSUES PRESENTED
1. Appellant's Plea of Guilty was not Voluntarily Entered Where
Appellant was Incompletely Admonished Regarding His Eligibility
for Probation.
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).
1
RR refers to the Reporter’s Record;
CR1 refers to the Clerk Record in 1423872;
CR2 refers to the Clerk Record in 1423873;
CR3 refers to the Clerk Record in 1423874
Appellant's Opening Brief v
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.
Appellant's Opening Brief vi
NO. 06-15-00026-CR
NO. 06-15-00027-CR
NO. 06-15-00028-CR
IN THE
SIXTH COURT OF APPEALS
OF TEXAS
TEXARKANA, TEXAS
_______________________________
ROGER DALE GAMMONS,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
___________________________________________________
Brief For The Appellant
___________________________________________________
STATEMENT OF FACTS
After Appellant entered a plea of guilty to the offenses charged in the
indictments, hearing on proper punishment was held by the Court on January
26, 2015, (RR IV).
The State presented no witnesses, relying solely on the plea of guilty
and cross-examination of the Appellant to establish its punishment case, (RR
IV 6 - 10).
This appeal arises from Appellant being sentenced to life
Appellant's Opening Brief 1
imprisonment after entry of an “open plea” during which he pled guilty in
case 872, case 873, and case 874. Appellant entered his guilty plea on
December 19, 2014, (RR II; RR IV 43; CR1 at 34 – 35, 39 – 40; CR2 at 31 –
32, 37 – 38; CR3 at 33 – 34, 38 – 39;).
During the plea hearing on December 19, 2014, the Court stated the
following to Appellant:
I could find that it's in the best interest of society and you and
defer further proceedings without actually finding you guilty
and place you on community supervision. We commonly call
that a deferred adjudication probation. I could find you guilty,
sentence you to some period of imprisonment of 10 years or
less but then suspend the imposition of that sentence and place
you on probation. The rules of probation would be the same as
they are for deferred.
Or I could find you guilty and sentence you to some term
of imprisonment for 25 to life, if I follow all that they do here,
meaning when I said 10 or less, that would be assuming that I
did not go forward with the enhanced punishment range that the
State seeks.
(RR II 6).
Appellant's enhancement paragraphs were found true at the time he
entered his plea of guilty in each case, (RR II 16). This finding is consistent
with Appellant's plea paperwork, (CR1 at 22 – 28; CR2 at 20 – 26; CR3 at
19 – 25).
Prior to the Court hearing testimony on punishment, during
Appellant's Opening Brief 2
Appellant's plea colloquy on December 19, 2014, Appellant admitted that he
was convicted of possession of a controlled substance, a non-state-jail-
felony offense, and sentenced to serve penitentiary time in November of
1992, (RR II 12). This admission is a functional plea of “true” to an
enhancement paragraph, (RR II 12 – 13). Appellant further admitted that he
was sentenced to penitentiary time for a possession of controlled substance
case arising in Van Zandt County, Texas, with a conviction occurring on
December 23, 2008, (RR II 13). This was, in essence, a plea of true to the
second enhancement paragraph.
Judge Northcutt, when in private practice before taking the bench,
represented Appellant on a charge for which Appellant served a five (5) year
penitentiary sentence concurred with the Rainn and Van Zandt County
offenses, (RR III 6 – 8). Appellant was sentenced to five (5) years
concurrently in both of those cases, but was only represented by Judge
Northcutt on the Rainn County offense.
During the plea colloquy on December 19, 2014, the Court advised
Appellant that his statements were essentially a plea of true to the
enhancement paragraphs, (RR II 13). In concluding the plea hearing the
Court stated:
Appellant's Opening Brief 3
I'm going to make some findings at this time,·Mr. Gammons.
I'm going to find that the decisions that you've made today have
been made freely, voluntarily, knowingly, and competently. I'm
going to find that your pleas of guilty to the offense and true to
the enhancement paragraphs were made in the same fashion.
(RR II 16)(emphasis added).
These findings are justified by the Appellant's testimony, (RR II 12 –
13). After making these findings, the Court ordered preparation of a
presentence investigation (“PSI”) and reset the case for argument and
presentation of evidence relating to sentencing, (RR II 16). Appellant's
rejected the minimum sentence for habitual offenders in order to attempt to
obtain a sentence of deferred probation from the Court, (RR IV 17 – 18).
On January 16, 2015, the Court informed the parties that he had
previously represented Appellant on a case in Rainn County in which
Appellant pled guilty in exchange for a five (5) year penitentiary sentence to
run concurrent with another penitentiary sentence to which Appellant had
already been sentenced, (RR III 5 – 7). Neither party objected to the Court
continuing to preside over the sentencing hearing (RR III 7 – 8).
On January 26, 2015, slightly over a month after entering his plea of
guilty in each case and his plea of true to two enhancement paragraphs,
Appellant went before the Court for sentencing. Appellant was the only
Appellant's Opening Brief 4
witness to testify. After hearing testimony from the Appellant, and after the
State's cross-examination of Appellant, the Court found the evidence
sufficient to support the plea and after hearing testimony sentenced
Appellant to life imprisonment on all three cases and assessed no fine, (CR1
at 34 – 35, 39 – 40; CR2 at 31 – 32, 37 – 38; CR3 at 33 – 34, 38 – 39; RR IV
43)2. Appellant timely filed a Notice of Appeal, (CR 1at 66; CR2 at 65; CR3
at 65).
SUMMARY OF THE ARGUMENT
In his first issue, Appellant asserts that he should have been separately
admonished on his eligibility for straight probation versus deferred
probation prior to entering his guilty plea, and that the failure to admonish
him of the differing standards rendered his plea involuntary. In his second
issue, Appellant asserts that the Court's personal knowledge of truth of the
enhancement allegation should have resulted in the Judge's disqualification.
In his third issue Appellant asserts that the Court should reconsider
application of the existing uniform application of the prior counsel standard
and should substitute a new standard in cases where the Judge is a prior
2
RR refers to the Reporter’s Record;
CR1 refers to the Clerk Record in 1423872;
CR2 refers to the Clerk Record in 1423873;
CR3 refers to the Clerk Record in 1423874
Appellant's Opening Brief 5
defense counsel for the defendant.
ARGUMENT
APPELLANT’S ISSUE NO. ONE
Appellant's Plea of Guilty was Involuntarily Entered Where
Appellant was Incompletely Admonished Regarding His
Eligibility for Probation.
Standard of Review
To prevail on this issue, appellant must show that the admonition was
inaccurate and that it misled or harmed him. Ex parte Williams, 704 S.W.2d
773, 776-77 (Tex. Crim. App. 1986); Harrison v. State, 688 S.W.2d 497, 499
(Tex. Crim. App. 1985); Prado v. State, Nos. 05-05-00175-CR & 05-05-
00525-CR, 2006 Tex. App. LEXIS 5742, 2006 WL 1792736, at *1-2 (Tex.
App.—Dallas 2006, no pet.) (mem. op., not designated for publication).
Appellant's assertion that his plea was involuntary is non-
constitutional error subject to harmless-error analysis. See Tex.R.App.P.
44.2(b); Aguirre-Mata v. State, 125 S.W.3d 473, 473 (Tex. Crim. App. 2003).
Fact Statement
Appellant incorporates the Statement of Facts, infra, and would
additionally show the following facts pertinent to the Court's resolution of
Appellant's claim of error. Appellant specifically challenges the Court's
Appellant's Opening Brief 6
failure to separately admonish him on his eligibility for straight probation
versus for deferred probation. Because the eligibility requirements are
different for straight probation versus for deferred probation, Appellant
contends he should have been separately admonished on the availability of
each straight probation and deferred probation prior to entering his plea.
Appellant entered a plea of guilty to three felony offenses. Cases 872
and 874 were first degree felony possession of methamphetamine in an
amount between 4g and 200g with intent to distribute, (RR II 11 – 12). Case
873 was a third degree felony tampering with physical evidence charge, (RR
II 11 – 12). Appellant also confessed to two enhancement paragraphs, (RR II
12 – 13). The Court found the evidence sufficient to support Appellant's plea
of guilty in each case, and to support a finding of true for the enhancement
paragraphs, (RR II 16). This finding subjected Appellant to the habitual
felony offender enhancement.
Appellant was never admonished regarding the prohibition on straight
probation sentences for habitual felony offenders. Appellant rejected a plea
bargain offer of twenty-five years confinement in order to attempt to obtain
deferred probation from the Court, (RR IV 17 – 18).
Appellant's Opening Brief 7
Arguments And Authorities
Appellant submits that the Court's admonitions relating to his
probation eligibility were erroneous and that he was harmed by that error.
Appellant contends that the error in his admonition relates to the specificity
with which he was and wasn't admonished. Appellant was harmed by the
insufficiently specific admonition because the admonition given did not
adequately explain the difference between Appellant's eligibility for straight
probation versus his eligibility for deferred probation. This error induced
Appellant to reject the minimum term of confinement in order to pursue a
sentence of probation where Appellant failed to recognize the distinction
between being eligible for deferred probation (for which Appellant was
eligible) versus straight probation (Appellant was not eligible after the
Court's findings on the enhancement paragraph).
Procedural mechanisms for entering a plea of guilty are provided by
Article 26.13(a) of the Code of Criminal Procedure, which provides:
(a) Prior to accepting a plea of guilty or a plea of nolo
contendere, the court shall admonish the defendant of:
(1) the range of the punishment attached to the offense;
(2) the fact that the recommendation of the prosecuting
attorney as to punishment is not binding on the court.
Provided that the court shall inquire as to the existence of
a plea bargain agreement between the state and the
defendant and, if an agreement exists, the court shall
Appellant's Opening Brief 8
inform the defendant whether it will follow or reject the
agreement in open court and before any finding on the
plea. Should the court reject the agreement, the defendant
shall be permitted to withdraw the defendant's plea of
guilty or nolo contendere;
(3) the fact that if the punishment assessed does not
exceed the punishment recommended by the prosecutor
and agreed to by the defendant and the defendant's
attorney, the trial court must give its permission to the
defendant before the defendant may prosecute an appeal
on any matter in the case except for those matters raised
by written motions filed prior to trial;
(4) the fact that if the defendant is not a citizen of the
United States of America, a plea of guilty or nolo
contendere for the offense charged may result in
deportation, the exclusion from admission to this country,
or the denial of naturalization under federal law; and
(5) the fact that the defendant will be required to meet the
registration requirements of Chapter 62, if the defendant
is convicted of or placed on deferred adjudication for an
offense for which a person is subject to registration under
that chapter.
Tex. Code Crim. Proc. Art. 26.13.
One basic tenet of our criminal jurisprudence is that a guilty plea
entered by a defendant must be freely, knowingly, and voluntarily entered.
See TEX. CODE CRIM. PROC. ANN. art. 26.13(b)(Vernon 1989); Ex parte
Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985). Whether a guilty plea
is voluntary is determined by the totality of the circumstances. Munoz v.
State, 840 S.W.2d 69, 74 (Tex. App.--Corpus Christi 1992, pet. ref'd);
Gibson v. State, 747 S.W.2d 68, 70 (Tex. App.--Corpus Christi 1988, no
Appellant's Opening Brief 9
pet.).
The rule that a guilty plea must be voluntary, especially as it concerns
consequences, is not without limits. Ex parte Evans, 690 S.W.2d at 277.
Appellant's case calls for the Court to determine whether the absence of
specific admonishment regarding the availability of straight probation versus
the availability of deferred probation renders Appellant's plea involuntary.
Appellant asserts that a specific admonishment is necessary to ensure the
plea is voluntary. Appellant further asserts that due to the different eligibility
requirements for straight probation versus deferred probation that he should
have been specifically admonished that he was ineligible for straight
probation contemporaneously with the admonishment that he was eligible
for deferred probation.
Appellant's case presents questions regarding the need for accuracy
during the Article 26.13 comments from the Court. “[W]here the record
indicates that the defendant received an admonishment with respect to
punishment, although not a complete one, there is a prima facie showing that
the guilty plea was knowingly and voluntarily made.” Gonzales, 746 S.W.2d
902 (Tex.App. Corpus Christi, 1988). At that point, the burden shifts to the
defendant to show that he entered the pleas without understanding the
Appellant's Opening Brief 10
consequences of his action and was misled or harmed by the admonishment
of the Court. Ex parte Smith, 678 S.W.2d 78, 79 (Tex. Crim. App. 1984); Ex
parte McAtee, 599 S.W.2d 335 (Tex.Cr.App. 1980); DeVary v. State, 615
S.W.2d 739 (Tex.Cr.App. 1981).
Here, Appellant is compelled by the plain text of the record to concede
that the admonishment Appellant received was incomplete but otherwise
correct. See CR1 at 22 – 28; CR2 at 20 – 26; CR3 at 19 – 25. While the plea
paperwork accurately sets forth the punishment range for a penitentiary
sentence, the plea paperwork fails to completely admonish Appellant on his
probation eligibility. See Clerk's Records at Id. Additionally, the record
contains evidence of Appellant's confusion regarding the punishment range,
(RR IV 14 – 18). See Carranza v. State, 980 S.W.2d 653, 658 (Tex.Cr.App.
1998)("conviction must be reversed on direct appeal if the record shows that
a defendant was unaware of the consequences of his plea and that he was
misled or harmed by the trial court's failure to admonish him regarding the
range of punishment"). Taking an extra minute to admonish the Appellant
regarding the distinction between straight probation and deferred probation,
and for which he was eligible, is a miniscule burden to ensure that a plea is
knowingly, voluntarily, and freely entered into.
Appellant's Opening Brief 11
Here, the record is at best ambiguous regarding Appellant's
understanding of his plea agreement and two plea of true to enhancement
paragraphs.
Analysis of the sequence of events shows Appellant to have lacked
understanding of what the consequences of his plea of guilty would be. First,
the Court admonished Appellant, (RR II 6 – 11). Second, Appellant enters a
plea of guilty in case 872, then a plea of guilty in case 873, then a plea of
guilty in case 874, (RR II 11 – 13).
Third, the Court inquires about the enhancement paragraphs, (RR 12 –
13). Appellant admits to two penitentiary sentences, with the second
occurring after the first became final, (RR II 13). Appellant had little choice
with regard to admitting the second enhancement paragraph, as the Court
was his counsel for that proceeding and had personal knowledge of the
same, (See RR III 6 – 8). The Court then states to Appellant that he is
essentially pleading true to those enhancement paragraphs, (RR II 14).
Fourth, the Court goes over the plea paperwork with Appellant, (RR II
14 – 15). The Court notes that the habitual offender punishment paragraphs
are marked, (RR II 15; CR1 at 24; CR2 at 22; CR3 at 21). The Court fails to
admonish Appellant that Appellant is ineligible for straight probation if the
Appellant's Opening Brief 12
sentence entered by the Court exceeds ten (10) years. According to the plea
paperwork, Appellant's minimum sentence is the twenty-five (25) year
minimum provided for habitual felony offenders, (CR1 at 24; CR2 at 22;
CR3 at 21). At no point is Appellant admonished regarding the Court's
limited discretion to sentence Appellant to probation. See Tex. Code Crim.
Proc. art. 42.12 sec. 3(e)(1); Tex. Code Crim. Proc. art. 42.12 sec. 4(d).
Appellant is also never admonished regarding the difference between
eligibility for straight probation versus for deferred probation.
Fifth, the Court accepts Appellant's plea of guilty and “find[s] that
your pleas of guilty to the offense and true to the enhancement
paragraphs were made [freely and voluntarily],” (RR II 16). By accepting
Appellant's plea of guilty to the offense and true to the enhancement
paragraphs, Appellant's minimum sentence became twenty-five (25) years.
At this time, on December 14, Appellant became statutorily disqualified
from receiving straight probation because a twenty-five (25) year mandatory
minimum sentence precludes either the Judge or a Jury from assessing
straight probation. See Tex. Code Crim. Proc. art. 42.12 sec. 3(e)(1)(“A
defendant is not eligible for community supervision [from the Court] under
this section if the defendant... is sentenced to a term of imprisonment that
Appellant's Opening Brief 13
exceeds 10 years.”). See also Tex. Code Crim. Proc. art. 42.12 sec. 4(d)(1)
(“A defendant is not eligible for community supervision [from the Jury]
under this section if the defendant...is sentenced to a term of imprisonment
that exceeds 10 years”).
Sixth, the Court found the evidence sufficient to support the plea and
the enhancements and reset the case for sentencing. Appellant was never
admonished that the Court's finding would prohibit a straight probation
sentence. In order for Appellant's plea to have been voluntary, in the true
constitutional meaning of the word, an admonition that completely defines
Appellant's eligibility for probation, including specifying whether Appellant
is eligible, is necessary.
In Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709
(1969), the Court then noted that there is reversible error where the record
does not show that the defendant had "a full understanding of what the plea
connotes and of its consequence." Boykin v. Alabama, 395 U.S. 238, 244
(1969). By failing to admonish Appellant regarding the difference between
straight probation, for which he was disqualified by his sentencing range,
versus deferred probation, Appellant lacked essential knowledge that would
have played an important role in his decision making process. Without
Appellant's Opening Brief 14
knowledge of his eligibility for various types of probation, where Appellant's
plea is solely entered in the hopes of obtaining a probated sentence,
Appellant could not possibly have had the “full understanding of what the
plea connotes and of its consequence." Boykin v. Alabama, 395 U.S. at 244.
“There is no principled distinction between total failure to speak of
punishment and stating a range of punishment which is not applicable to the
offense on trial.” Taylor v. State, 610 S.W.2d 471, 474 (Tex. Crim. App.
1980). “The function of the admonishment exercise is to assure that facet of
due process which requires that the plea of guilty that bases a conviction for
a penal offense be 'voluntary in the constitutional sense,'” Taylor v. State,
610 S.W.2d 471, 474 (Tex.Crim.App. 1980) quoting Henderson v. Morgan,
426 U.S. 637, 646, 96 S. Ct. 2253, 2257, 49 L. Ed. 2d 108 (1976).
At the time Appellant's sentencing hearing began on January 26, 2015,
it was, because of the Court's findings on December 19, 2014, impossible as
a matter of law for the Appellant to be sentenced to straight probation.
Where the Court found the enhancement paragraphs true (RR II 16), and that
the evidence supported the finding that the enhancement paragraphs were
true, (RR II 16), Appellant must be punished as an habitual felony offender.
Pursuant to the habitual offender enhancement, Appellant's mandatory
Appellant's Opening Brief 15
minimum sentence was twenty-five years. Tex. Penal Code §12.42(c)(1). As
an habitual felony offender, Appellant was automatically subject to a
sentencing range which prohibited straight probation for the sentence. See
Tex. Code Crim. Proc. art. 42.12 sec. 3(e)(1). Appellant should have been
admonished by the Court that he was disqualified from straight probation,
and separately admonished of his remaining eligibility for deferred
probation.
Appellant was never admonished, and it is unknown whether he was
informed by Counsel,3 that with a twenty-five year minimum sentence,
straight probation was impossible due to the Court's findings on December
19, 2014, (RR II 16). While Appellant was admonished regarding the
punishment range, (RR II 13 – 14) he was not admonished on the limits of
the Court's authority to sentence him to straight probation. In order for
Appellant to have had the “full understanding of what the plea connotes and
of its consequence" Appellant should have been informed that straight
probation was impossible when the habitual felony offender enhancement
applies. The distinction between straight probation and deferred probation
3
The Reporter's Record does not adequately develop the factual
background regarding whether, or under what circumstances, Counsel
advised Appellant that straight probation was no longer possible after a
finding of true to the enhancement paragraphs.
Appellant's Opening Brief 16
was an important one for Appellant's decision making process, and it appears
to be a distinction of which Appellant was entirely unaware.
Appellant merely stating that he understood the punishment range was
from 25 – 99 years or life imprisonment is meaningless unless Appellant
also understands that any probation is unavailable (absent a finding that it is
in the best interest of society) for a sentence of more than ten (10) years.
Regarding deferred probation for habitual felony offenders, the Court of
Criminal Appeals has been clear that “we do not perceive of a scenario
where the interests of society will be best served by granting deferred
adjudication probation to habitual offenders.” Cabezas v. State, 848 S.W.2d
693, 695 (Tex. Crim. App. 1993).
The requirement that Appellant understand not only what sentence is
possible as well as what sentence isn't possible is all the more important in
this instance, where Appellant rejected the mandatory minimum sentence in
order to attempt to be granted a probated sentence. Understanding the
difference between a straight probation sentence and a deferred probation
sentence is essential Appellant's convictions resulting in this appeal were the
result of being arrested a total of fifty (50) times, (RR IV 13). Without
admonishment on whether probation is available, where the sole reason for
Appellant's Opening Brief 17
the guilty plea is to attempt to obtain a probated sentence, the Appellant
cannot have had the “full understanding of what the plea connotes and of its
consequence” that Boykin requires. See Boykin, 395 U.S. at 244. A plea of
guilty cannot be voluntary unless the defendant is fully advised by the court
of the direct consequences of such plea. Ex Parte Shuflin, 528 S.W.2d 610,
615 (Tex.Crim.App. 1975).
The Court's failure to completely admonish Appellant harmed
Appellant. Appellant should have been admonished regarding his
ineligibility for straight probation upon a finding that the enhancement
paragraphs were true. Had the Court delayed finding the enhancement
paragraphs true, instead of finding the enhancements true prior to the start of
the sentencing hearing, then Appellant's plea admonishments would have
been entirely correct. In this instance, where the Court found the
enhancement paragraphs true prior to the date on which sentencing began,
the prior admonishment had become substantially misleading in that
Appellant had been, but no longer was, eligible for straight probation.
The absence of an admonishment regarding the unavailability of
straight probation, where the Court of Criminal Appeals has said they “do
not perceive of a scenario where the interests of society will be best served
Appellant's Opening Brief 18
by granting deferred adjudication probation [an] habitual offender[]” misled
Appellant to believe that it would be possible for him to be sentenced to
straight probation. See Cabezas v. State, 848 S.W.2d 693, 695 (Tex. Crim.
App. 1993). This error mislead and harmed Appellant by assisting to induce
Appellant to waive the statutory minimum sentence of confinement, offered
by the State on the record, (RR IV 17).
The Court of Criminal Appeals has stated that there is no circumstance
in which Appellant should be granted his request for deferred probation.
Cabezas v. State, 848 S.W.2d at 695 (Tex. Crim. App. 1993). Where no
scenario can be imagined by the Court of Criminal Appeals that would
support granting Appellant the sentence that Appellant desired, Appellant is
entitled to an admonition reflecting that reality. Appellant rejected the
minimum sentence, and instead received the maximum sentence, because he
held the erroneous belief that his desired goal was possible. Appellant should
have been admonished regarding the difference in eligibility between
straight and deferred probation. The failure to inform him of this difference,
and the different standard used in assessing whether to assess that sentence,
caused substantial harm by the largely increased sentence.
Appellant request this Court to reverse the Trial Court’s Judgment and
Appellant's Opening Brief 19
remand the case for further proceedings pursuant to Tex. R. App. Pro.
43.2(d).
APPELLANT’S ISSUE NO. TWO
The Court Erred by Failing to Recuse Himself Where the Court
had Personal Knowledge of Disputed Facts Relating to
Appellant's Enhancement Paragraph(s)
Standard of Review
An appellate court reviews an order denying a motion to recuse under
an abuse of discretion standard. An appellate court should not reverse a
recusal judge whose ruling on the motion was within the zone of reasonable
disagreement. Gaal v. State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011).
Error relating to the Court's recusal may be raised at any time. Lackey
v. State, 364 S.W.3d 837, 842-43 n.19 (Tex. Crim. App. 2012).
Since Appellant is raising a Constitutional error (Tex. Const. Art. V, §
11), the standard of review is, “(a) If the appellate record in a criminal case
reveals constitutional error that is subject to a harmless error review, the
court of appeals must reverse a judgment of conviction or punishment unless
the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment,” Tex. R. App. Pro. 44.2(a).
Appellant's Opening Brief 20
Fact Statement
Appellant incorporates fully all of the facts set out in Issue One above
and adds the additional facts relevant to this issue.
Prior to being elected to the 8TH District Court bench, the Honorable
Eddie Northcutt was an attorney in private practice in that area. While in
private practice, he represented Appellant on criminal charges in Rainns
County, (RR III 5 – 8). As a result of that representation, during the course
of which Appellant was again arrest in either Van Zandt or Kaufman County,
Appellant was sentenced to five (5) years confinement to run concurrent
with the other criminal charges he faced at that time, (RR III 7). By virtue of
having represented the Appellant previously, the Court had direct, personal
knowledge that Appellant had served at least one penitentiary sentence, and
also that at least one of the alleged enhancement paragraphs were true, (RR
III 6 – 8).
Neither the State nor counsel for the Appellant objected to the Court
hearing Appellant's open plea, (RR III 8).
Arguments And Authorities
Appellant submits that the Court erred, and that the error effected the
fundamental basis of the proceedings, where the Judge determining whether
enhancement paragraphs were true, for purposes of application of the
Appellant's Opening Brief 21
habitual felony offender enhancement, had served as counsel of record to the
Defendant during at least one of the cases alleged as an enhancement
paragraph.
Judge Northcutt placed himself in a position to determine whether
Appellant committed an offense for which Judge Northcutt was counsel of
record and in which Appellant pled guilty. Judge Northcutt, therefore, had
personal knowledge of the Appellant's guilt relating to the enhancement
paragraph for which the Court was Appellant's counsel of record.
“A Texas judge may be removed from presiding over a case for one of
three reasons: he is constitutionally disqualified; he is subject to a statutory
strike; or, he is subject to statutory disqualification or recusal under Texas
Supreme Court rules.” Gaal v. State, 332 S.W.3d 448, 452 (Tex. Crim. App.
2011). “Rule 18b(2) of the Texas Rules of Civil Procedure sets out the law
concerning recusal and includes instances in which a judge must step down
from hearing a case for reasons other than the disqualifying grounds listed in
the constitution.” Gaal v. State, 332 S.W.3d 448, 452-53 (Tex. Crim. App.
2011)4
4
See also 47 TEX. JUR. 3d Judges § 70 (2007) (citing Gulf Maritime
Warehouse Co. v. Towers, 858 S.W.2d 556, 559-60 (Tex. App.—Beaumont
1993, writ denied) & Mosley v. State, 141 S.W.3d 816, 833 (Tex. App.—
Texarkana 2004, pet. ref'd)).
Appellant's Opening Brief 22
(b) Grounds for Recusal. --A judge must recuse in any
proceeding in which:
…
(3) the judge has personal knowledge of disputed
evidentiary facts concerning the proceeding;
…
(5) the judge participated as counsel, adviser, or material
witness in the matter in controversy, or expressed an
opinion concerning the merits of it, while acting as an
attorney in government service;
Tex.R.Civ.P. 18(b)
Judge Northcutt, having represented Appellant as Counsel during one
of the cases the State alleged as an enhancement paragraph, had personal
knowledge of the facts surrounding that enhancement allegation. The Court
must recuse itself in that instance. See Tex.R.Civ.P. 18(b)(3).
Tex. R. Civ. P. 18b(3) deals with disqualification and provides that
"Judges shall disqualify themselves in all proceedings in which: … the judge
has personal knowledge of disputed evidentiary facts concerning the
proceeding;.…" This is an "irrebuttable" basis for disqualification. 48B
Robert P. Schuwerk & Lillian B. Hardwick, Texas Practice Series:
Handbook of Texas Lawyer and Judicial Ethics §40:21 at 742 (2010) ("once
the objective fact … underlying each [disqualification] basis is
demonstrated, the judge is disqualified."); Gaal v. State, 332 S.W.3d 448,
452 n.13 (Tex. Crim. App. 2011). Here, the Court had direct, personal
Appellant's Opening Brief 23
knowledge, obtained as a result of representing the Appellant, of the veracity
of one of the enhancement allegations Appellant was facing. The Court, in
that instance, is disqualified, and Appellant asserts the Court erred by
presiding over the open plea and the plea to the enhancement paragraphs
where the Court had direct, personal knowledge of the factual circumstances
surrounding one of the enhancement paragraphs.
Appellant request this Court to reverse the Trial Court’s Judgment and
remand the case for further proceedings pursuant to Tex. R. App. Pro.
43.2(d).
APPELLANT’S ISSUE NO. THREE
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.
Standard of Review
An appellate court reviews an order denying a motion to recuse under
an abuse of discretion standard. An appellate court should not reverse a
recusal judge whose ruling on the motion was within the zone of reasonable
disagreement. Gaal v. State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011).
Error relating to the Court's recusal may be raised at any time. Lackey
Appellant's Opening Brief 24
v. State, 364 S.W.3d 837, 842-43 n.19 (Tex. Crim. App. 2012); Gamez v.
State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987). It is not necessary that
an objection be made. Holifield v. State, 538 S.W.2d 123 (Tex.Cr.App.
1976). The disqualification of a judge may not be waived even by consent of
the parties. Tex.Jur.3d, Vol. 21, Crim.Law, § 1861, p. 772.
Since Appellant is raising a Constitutional error pursuant to Tex.
Const. Art. V, § 11, the standard of review is, “(a) If the appellate record in a
criminal case reveals constitutional error that is subject to a harmless error
review, the court of appeals must reverse a judgment of conviction or
punishment unless the court determines beyond a reasonable doubt that the
error did not contribute to the conviction or punishment,” Tex. R. App. Pro.
44.2(a).
Fact Statement
Appellant incorporates fully all of the facts set out in Issue Two,
above.5
Appellant is forced to concede that this Court has previously
determined this issue, in an unpublished opinion not treated as precedent, in
a manner adverse to Appellant's position, 06-12-00199-CR, Morsman v.
5
Appellant briefs recusal under Tex.R.Civ.P. 18(b)(3) and 18(b)(5) separately to avoid
briefing a multifarious issue.
Appellant's Opening Brief 25
State, 2013 Tex. App. LEXIS 6177, 1, 2013 WL 2247322 (Tex. App.
Texarkana May 21, 2013). Appellant would show the Court (1) that
Morsman, as an unpublished opinion, is not binding on the Court's
subsequent interpretation of Article 30.01 [see Tex.R.App.P. 47.7], and (2)
that the Court should reconsider its opinion in Morsman or, in the
alternative, publish opinion on the question to provide precedent with which
the question of the Court's participation in a case involving a defendant
previously represented by Counsel is error.
Arguments And Authorities
“No judge or justice of the peace shall sit in any case where he may be
the party injured, or where he has been of counsel for the State or the
accused.” Tex. Code Crim. Proc. Art. 30.01.
Assuming arguendo that the Court did not err by failing to recuse
himself from the matter where the Court had personal knowledge of the
underlying facts relating to the enhancement paragraphs, the Court further
had a duty to recuse himself if the Court had participated as Counsel in the
matter, specifically the enhancement paragraph, in controversy.
The Court did participate in a portion of the matter in controversy.
Judge Northcutt had previously represented Appellant while in private
Appellant's Opening Brief 26
practice. That representation was in issue in this case, as it directly related to
the Court's personal knowledge of the facts relating to the Appellant's second
enhancement paragraph. Appellant served three concurrent five (5) year
sentences, including a Rainns County conviction for which Judge Northcutt
was Appellant's lawyer. That five year sentence was one of the alleged
enhancement paragraphs in the instant case. The Court, by virtue of having
been counsel of record for a case resulting in a penitentiary sentence, had
previously been Counsel for the accused, as should be prohibited by Article
30.01 of the Code of Criminal Procedure, and Rule 18(b)(5) of the Texas
Rules of Civil Procedure. The Court must recuse itself in that instance. See
Tex.R.Civ.P. 18(b)(5).
Further compelling the Court to recuse himself is the Code of
Criminal Procedure, which “provides in pertinent part, 'No judge … shall sit
in any case … where he has been of counsel for … the accused...' This
provisions has been held to be mandatory.” Easton v. State, 2001 Tex. App.
LEXIS 7179, 6, 2001 WL 1289945 (Tex. App. Houston 14th Dist. Oct. 25,
2001) See Hathorne v. State, 459 S.W.2d 826 (Tex. Crim. App. 1970).
Tex. R. Civ. P. 18b(1) deals with disqualification and provides that
"Judges shall disqualify themselves in all proceedings in which: (a) they
Appellant's Opening Brief 27
have served as a lawyer in the matter in controversy.…" This is an
"irrebuttable" basis for disqualification. 48B Robert P. Schuwerk & Lillian
B. Hardwick, Texas Practice Series: Handbook of Texas Lawyer and Judicial
Ethics §40:21 at 742 (2010) ("once the objective fact … underlying each
[disqualification] basis is demonstrated, the judge is disqualified."); Gaal v.
State, 332 S.W.3d 448, 452 n.13 (Tex. Crim. App. 2011). Here, the Court
had personal knowledge, by virtue of previously representing Appellant, of
the veracity of allegations currently pending before his Court. The Court, in
that instance, is disqualified, and the Court erred by presiding over the open
plea in this instance.
“To be considered 'counsel in the case' the judge must actually have
participated, investigated, or rendered advice.” Easton v. State, 2001 Tex.
App. LEXIS 7179, 7, 2001 WL 1289945 (Tex. App. Houston 14th Dist. Oct.
25, 2001) citing Hathorne, 459 S.W.2d at 826; see also Lee v. State, 555
S.W.2d 121 (Tex. Crim. App. 1977). The Court, as counsel of record for
Appellant in the Rainn County offense alleged as an enhancement
paragraph, “rendered advise” within the meaning of Easton.
While this Honorable Court has previously interpreted the Article
30.01 restriction on a judge presiding over a case as restricted to where “the
Appellant's Opening Brief 28
judge acted as counsel [i]n the very case before him" Morsman v. State,
2013 Tex. App. LEXIS 6177, 3, 2013 WL 2247322 (Tex. App. Texarkana
May 21, 2013)(citing Hathorne, 459 S.W.2d at 826), Appellant contends that
the Court's interpretation is overly narrow in comparison to the plain
language of the text, and that the more appropriate standard for whether the
Court acted “as counsel in the very case before him” would included cases in
which the Court acted as Counsel for the Defendant on any matter relevant
to the very case before him. Hawthorne, on which this Court relied in
deciding Morsman, (discusing disqualification of the Judge who was a
former District Attorney at a time at which a Defendant was prosecuted)
states only that the prior participation of the judge in representing the State
or Defendant does not result in “automatic disqualification of the judge and
cause a mistrial.”
While the Court's decision in Hathorne is logical for a previously
elected District Attorney who had no direct involvement in a prior
prosecution and is now serving on the bench, it is far more tenuous to apply
the prohibition to prior Defense Counsel. Application of a unilateral
brightline rule for all prior counsel without regard to whether counsel was a
prosecutor, district attorney, or defense attorney fails to recognize the
Appellant's Opening Brief 29
substantial difference between the three roles.
Hathrone is readily distinguishable from Appellant's case. If the Court
were to per se disqualify a Judge by virtue of having been elected District
Attorney, the result would be to effectively disqualify the Judge for every
criminal case in which the current accused had been previously prosecuted
while the current judge had then been District Attorney. Such a conclusion is
untenable, especially if the Judge were to remain in the same county as
judge as they served as District Attorney. However, the rationale behind the
Hathrone rule fails to carry over to prior defense counsel.
The Court's extension of the Hathorne rule to prior counsel for a
defendant lacks the same justification as applying the Hathorne rule to an
elected District Attorney. First, the elected District Attorney will, in many
cases, lack any personal knowledge of any kind relating to the prior criminal
case. The elected District Attorney has a legion of employees to handle cases
on their behalf. In many counties, the elected District Attorney will not have
ever “actually have participated, investigated, or rendered advice.”
Hathorne, 459 S.W.2d at 826; Easton v. State, 2001 Tex. App. LEXIS 7179,
7, 2001 WL 1289945 (Tex. App. Houston 14th Dist. Oct. 25, 2001). In
contrast, a criminal defense attorney having previously represented a client
Appellant's Opening Brief 30
has detailed, personal, and direct knowledge of exactly the allegations that
were pending at the time of the representation. The defense attorney will
have, from the onset of the representation, “actually have participated,
investigated, [and] rendered advice.” Hathorne, 459 S.W.2d at 826. This
discrepancy between the amount of direct personal knowledge held by an
elected District Attorney versus that held by criminal defense counsel makes
application of an identical rule for disqualification of both types of counsel
manifestly inappropriate.
Second, an elected District Attorney has little, if any at all, access to
confidential information communicated from an accused to his attorney.
The absence of a statutory communications privilege limits the information
that a District Attorney will be able to access about a Defendant. Further,
attorney-client privilege between the Client and Defense Counsel will in
many cases prevent the elected district attorney, or any prosecutor, from
discovering confidential information about the accused. This constitutionally
protected relationship between a defense attorney and their client encourages
the Defendant to be candid and forthright with their counsel, resulting in
counsel having access to intimate details of the client's life and direct
knowledge of the Client's criminal history. See generally Tex.R.Civ.P 18(b)
Appellant's Opening Brief 31
(3)(recusal for possession of personal knowledge). With such a large
discrepancy between the duty of confidentiality owed by a defense attorney
to their client, compared to the absence of that knowledge by the District
Attorney and their employees, application of a uniform rule regarding
disqualification fails to account for the differing standards of knowledge and
is inappropriate.
Third, the nature of the representation provided by a District Attorney
versus that provided by retained defense counsel is sufficiently different to
compel different analysis in determining whether subsequent recusal is
appropriate. The District Attorney's obligation is to see that justice is done
[Tex.Code Crim.Proc. Ann. art 2.01], where the defense attorney's obligation
is to zealously advocate for their client [Preamble, Tex. R. Disciplinary Prof
Cond.]. The nature of these two relationships is so fundamentally different in
terms of the scope of the relationship to a defendant, the knowledge gained
about a defendant, and the purpose underlying the representation, that a
uniform rule regarding disqualification of a judge having previously served
as a District Attorney and a judge having previously served as defense
counsel is both inappropriate and manifestly unjust. See generally 48B
Robert P. Schuwerk & Lillian B. Hardwick, TEXAS PRACTICE SERIES:
Appellant's Opening Brief 32
HANDBOOK OF TEXAS LAWYER AND JUDICIAL ETHICS (discussing professional
obligation of attorneys).
Appellant request this Court to reverse the Trial Court’s Judgment and
remand the case for further proceedings pursuant to Tex. R. App. Pro.
43.2(d).
PRAYER
Appellant prays that he be granted the relief requested under each
respective issue.
Respectfully submitted
/s/J.Edward Niehaus_______
J. Edward Niehaus
CERTIFICATE OF SERVICE
I hereby certify that a true and correct electronic copy of the foregoing
Appellant’s Brief was mailed to Roger Dale Gammons, TDC #01978521,
BYRD Unit, 21 FM 247, Huntsville, TX 77320, and a true and correct copy
compliant with the E-Filing rules adopted by the Texas Supreme Court,
effective 1-1-2014, has been filed with the Sixth Court of Appeals and has
been served on all parties in interest.
/s/J.Edward Niehaus______
J. Edward Niehaus
Appellant's Opening Brief 33
CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software
used to produce this document, I certify that the number of words in this
brief is 8,049. See Tex.R.App.P. 9(i).
/s/J.Edward Niehaus______
J. Edward Niehaus
Appellant's Opening Brief 34