ACCEPTED
06-14-00185-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/17/2015 11:35:23 AM
DEBBIE AUTREY
CLERK
CAUSE NO. 6-14-00185-CR
FILED
(Trial Court Cause CR14-192 from the 4th District Court of Rusk County, IN
Texas)
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE 3/17/2015 11:35:23 AM
DEBBIE AUTREY
THE SIXTH DISTRICT COURT OF APPEALS Clerk
FOR THE
STATE OF TEXAS at TEXARKANA, TEXAS
VINCENT MONROW FRIEMEL
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
STATE'S REPLY TO APPELLANT'S BRIEF
MICHEAL JIMERSON
County & District Attorney
Rusk County, Texas
RICHARD W. KENNEDY
First Assistant County & District Attorney
Bar I.D. No. 11296850
Rusk County Courthouse
115 N. Main St. Suite 302
Henderson, Texas 75652
ph: (903) 657-2265
fax: (903) 657-0329
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TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OFF ACTS . . .. . . . . .. . .. . . . . . . . .. .. . . .. .. . . . .. . . . . . . . .. . .. . .. . . . .. . . . .. . . . . . .. . .. . . . . . . ............ .. ... . 5
SUMMARY OF ARGUMENT .......................................................................................... 7
ARGUMENT AND AUTHORITIES ..................................................................................... 8
State's Response to Appellant's Issues
A. The trial court was not required to admonish Appellant as to parole
considerations so the Court did not err when it did not admonish Appellant
about the effect of parole pursuant to a deadly weapon finding ........................ 8
.!1_ The State takes no position as to whether the trial court erred when it
ordered the Appellant to reimburse the County for his fees paid on his
behalf to his court-appointed attorney .............................................................. 10
CONCLUSION ................................................................................................................ 11
PRAYER························································································································· 11
CERTIFICATE OF SERVICE ............................................................................................... 12
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INDEX OF AUTHORITIES
STATUTES Page
TEX. CODE OF CRIMINAL PROCEDURE ART 26.13............................................................ 8, 9, 10
TEX. CODE OF CRIMINAL PROCEDURE ART. 42.12 (3)(g)(a) 2) ...................................... 7
TEX. PENAL CODE ANN. ART. 46.04 .................................................................................. 7
FEDERAL CASES
Hill v. Lockhart, 474 U.S. 52 ( 1985)...................................................................................... 9
STATE CASES
Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.-Houston [1 51 Dist.] 2006, no pet.)......... 8
Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013)................................................. 9
Dominguez v. State, 2010 Lexis 4979 (Tex. App.-Tyler)(not designated for publication).. 8
Ex Parle Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985)........................................... 9
Houston v. State, 201 S.W.3d 212, 217 (Tex. App.-Houston [14th Dist.] 2006, no pet.)... 8
Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998)....................................... 8
Seagmves v. State, 342 S.W.3d 176 (Tex. App. -- Texarkana 2011, no pet.)................... 9
Thomas v. State, 2 S.W.3d 640 (Tex. App.-- Dallas 1999, no pet.).................................... 9
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CAUSE NO. 6-14-00185-CR
(Trial Court Cause CR14-192 from the 4th District Cami of Rusk County, Texas)
IN THE
THE SIXTH DISTRICT COURT OF APPEALS
FOR THE
STATE OF TEXAS at TEXARKANA, TEXAS
VINCENT MONROW FRIEMEL,
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
STATE'S REPLY TO APPELLANT'S BRIEF
TO THE HONORABLE COURT OF APPEALS:
Comes now the State of Texas, by and through the undersigned Assistant County & District
Attorney, and respectfully urges this Court to ovenule Appellant's alleged errors and affirm the
judgment and sentence of the trial comi in the above-numbered cause.
STATEMENT OF THE CASE
Appellant Vincent Momow Friemel was charged by indictment in Cause CR14-192 with
the third degree felony offense of Evading With a Vehicle. The indictment contained an allegation
that Friemel used or exhibited an automobile as a deadly weapon while committing the offense of
evading. CR 5 On September 15, 2014, Appellant, with his attorney, Roscoe Darryl Bennett,
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entered a guilty plea without a negotiated sentence recommendation (an "open plea to the Court").
RR II. Appellant specifically pleaded guilty to the indictment and true to the allegation that he used
or exhibited a deadly weapon as set out in the indictment. RR II 7-8. On the l01h day of October,
2014, the trial court conducted a punishment hearing. RR III. After hearing evidence and argument,
the trial court assessed a nine (9) year prison sentence with a deadly weapon finding. RR III, 34 and
Judgment CR 46-48 Appellant timely filed his notice of appeal perfecting this appeal of the trial
court's judgment.
STATEMENT OF FACTS
On May 6, 2014 the Grand Jury of the 4th District Comi in Rusk County returned a true bill
against Vincent Edward Friemel for the third degree felony offense of Evading AlTest or Detention
with a Vehicle. CR 5 The cause number was CR14-192. CR 5 The Indictment also contained
an allegation that Appellant used or exhibited a deadly weapon, an automobile, in the course of
committing the offense of evading. CR 5.
On September 15, 2014 Appellant, accompanied by his attorney Roscoe D. Bennett, entered
a plea of guilty to the indictment. RR II, 1-10. Appellant was fully admonished of all of his rights
both orally and in writing. RR II, 1-10; CR 33-37. Thereafter he entered his plea of"guilty" to the
offense alleged and "true" to the deadly weapon allegation. RR II 8, CR 33-37. Defendant did not
enter his plea with a plea bargain, rather his plea was "open" to the trial court. CR 35, RR II 5-6.
The record does reveal that the State made an offer but that Appellant did not accept that offer. RR
III, 18. Appellant had two other indictments dismissed by the State in return for his guilty plea to
evading. RR II, 5. He thereby avoided punishment for those offenses.
The trial comi was very clear as to what Appellant was doing by entering a plea without a plea
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agreement, especially as to the range of punishment that he faced and how the case would proceed
from plea to sentencing. RR II, 5-6. Defendant's mental health was not an issue. RR II, 6. His
rights to a jury trial for both guilt and punishment were clearly explained to him by the Court and in
writing. RR II, 7; CR 33-37. He knew that he was pleading guilty to the indictment, including the
deadly weapon allegation. RR II, 7-8. The trial court ordered that a Pre Sentence Investigation
("PSI") be prepared. Having found Appellant guilty as charged, the trial court recessed the case for
the preparation of the PSI.
At the punislunent hearing on October 10, 2014 the trial court acknowledged that he had the
PSI and that he had read it. RR III, 3. The State offered judgments which showed that Appellant had
previously been convicted of the state jail felony offense of unauthorized use of a motor vehicle in
Gregg County, was granted probation in that matter, that probation was later revoked and he was then
sentenced to 9 months confinement in a state jail. RR III, 4.
Also, the trial comi heard testimony from Trooper Ricardo Fabbiani, the Texas DPS officer
from whom Appellant fled. The Trooper's in-car video showed Appellant's high speed flight which
endangered other drivers and Appellant throwing a shotgun out of his window while fleeing .. That
shotgun hit the Trooper's windshield, destroying it and smashing his camera. RR III, 6-12. Fabbiani
was not injured when the shotgun shattered his windshield but it did cause him to wreck his patrol
car. RR III, 12.
Fabbiani also described Appellant's attempt to avoid responsibility for the offense.
Appellant told officers that he gave a ride to an unknown black man who forced him at gun point to
run from the trooper and throw the shotgun out. RR III, 10. Appellant did have a female passenger
that day .. WhenFabbiani spoke to her, she initially tried to lie to support Appellant's tale of coercion
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by the unknown black male. Eventually she admitted that the story about the unknown black guy
forcing Appellant to commit the crime was not what happened. RR III, 11.
When Appellant testified at the punishment phase, his lawyer made it clear to Appellant that
he was going to get a prison sentence, not probation:
Q: Well, you know this Judge is going to sentence you to prison, don't you?
A: "Yes, sir"
RR III, 18
Yet, Appellant's next testimony indicated that he hoped (delusively) for probation and drug
treatment. RR III, 18. Once the trial court found the deadly weapon allegation true, probation was
not an option. RR II, 9 . See TEX. PEN CODE. ANN. ART. 42.12 (3)(g)(a) 2. Appellant colTectly
recognized that he could not even ask a jury for probation because he was a previously convicted
felon. At the time of Appellant's testimony at the punishment phase of his trial, the trial court had
already found the deadly weapon allegation "true," so Appellant was not eligible for a probated
sentence. RR II, 9. In this matter, under these facts, Appellant could not receive a probated sentence
from the trial court. Though he was aware of that fact, he asked for probation anyway.
Eventually, Appellant admitted he made up "the black guy made me do it" story. RR III, 21.
He further admitted that he knew it was illegal for him as a convicted felon to possess firearms, he
did own and possess firearms. RR III, 25. Thus he admitted to multiple commissions of the third
degree felony of Unlawful Posession of a Firearm by Felon. See TEX. PENAL CODE ANN. ART.
46.04
There is no authority which requires that a trial court admonish a defendant about parole
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before accepting a defendant's guilty plea. Therefore, the trial comi did not err when it substantially
complied with the admonitions that are required pursuant to TEX. CODE. CRIM. PROC. ANN. ART.
26.13. The State takes no position on the payment of attorney's fees order but suggests that the
proper relief, if any, is to reform the judgment removing the order of payment.
ARGUMENTS AND AUTHORITIES
ISSUE NUMBER ONE
Did the trial comi reversibly etT in failing to admonish the defendant of the consequences of a
deadly weapon finding on the sentence assessed in his case?
The trial comi committed no error because parole is not something the trial comi has to warn
a defendant about before that court accepts a guilty plea. . Article 26.13 sets out the required
admonishments to be given prior to a guilty plea are regulated by TEX. CODE. CRIM. PROC. ANN.
ART. 26.13. Parole is not an admonishment contemplated therein. It is sufficient to c01Tectly inform
a defendant as to the range of punishment he faces should he be convicted of the offense to which he
intends to enter a plea of guilty. TEX. CODE. CRIM. PROC. ANN. ART. 26.13(a)(l)
When a record shows that a defendant was properly admonished, it presents a prima facie
showing that the guilty plea was knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197
(Tex. Crim. App. l998);Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.-Houston [1'1 Dist.]2006,
no pet. The burden to show that a guilty plea was given involuntarily shifts to defendant. Martinez
981 S.W.2d at 197. A defendant who informs the trial court that he understands the nature of his plea
and that his plea was voluntary has a heavy burden on appeal to show that his plea was involuntary.
Houston v. State, 201 S.W.3d212, 217 (Tex. App.-Houston [14th Dist.] 2006, no pet.); see also
Dominguez v. State, 2010 Lexis 4979 (Tex. App.-Tyler)(not designated for publication).
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In a case quite similar to the one now before the Court, the Dallas Court of Appeals affitmed
a defendant's conviction based on his guilty plea to aggravated assault with a deadly weapon because
the defendant could not rebut the presumption that his plea was voluntary. Thomas v. State, 2 S. W.3d
640 (Tex. App.-- Dallas, 1999) (mere fact that appellant received a higher punishment that he
expected or hoped for did not render his guilty plea involuntary).
The granting of parole is so speculative that mere erroneous advise about parole attainment
does not render a plea involuntary unless it can be shown that parole attainment was an element of
a plea bargain. Ex Parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985).
In a case in which Appellant claimed he was harmed by incoITect parole advise, the United
States Supreme Court rejected his claim of ineffective assistance of counsel because Appellant did
not show that he placed "particular emphasis on his parole eligibility in deciding whether or not to
plead guilty". Hill v. Lockhart, 474 U.S. 52 (1985). There is nothing in the record that indicates that
parole was of any special concern to today's Appellant.
Appellant does not complain that he suffered from ineffective assistance. Rather he claims
that the trial comi should have given him more warnings and admonitions than Texas law requires
of a trial judge. There simply is no authority requiring a trial comi to give admonitions about parole.
Failing to admonish on what is required (emphasis added) by the statute is not always fatal
to a guilty plea. Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013); Seagraves v. State, 342
S.W.3d 176 (Tex. App.--Texarkana, 2011, no pet.)
TEX. CODE. CRIM. PROC. ANN. ART. 26.13 informs a trial comi with specificity what
warnings and admonitions are required for a guilty plea to be voluntary. Appellant was warned that
he faced a sentence up to 10 years in prison. He received a nine year sentence, which sentence does
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not exceed the maximum available to trial court. A nine year sentence for a third degree felony crime
is a legal sentence. There is nothing in the record that shows defendant would have insisted on a
trial had he known that he would be subject to serving Yz of his sentence before being eligible for
parole. Appellant cannot claim surprise as to the deadly weapon allegation or finding because the
State was clear in its insistence upon the deadly weapon finding at both the guilty plea and sentencing
phases of Appellant's hearings. RR III, 34 & RR II, 8
The guilty plea at issue was not made pursuant to a plea bargain. Accordingly, Appellant
cannot show that he bargained for a parole agreement or recommendation. Since there was no plea
bargain agreement, Appellant cannot show parole was part of a plea bargain because there was no
plea bargain.
Since the trial comi clearly complied both orally and in writing with TEX. CODE. CRIM.
PROC. ANN. ART. 26.13, the plea is presumed to be both knowing and voluntary. Appellant can point
to no facts which inform this court that his plea was involuntary. He cannot and does not sustain his
burden to rebut the presumption that his plea was voluntary.
There simply is nothing in the record to support a finding that Appellant's guilty plea was
involuntaiy. He just got more than he hoped for and now wants to get another trial, again hoping to
get a shorter sentence. Appellant's guilty plea and sentence must be affirmed because the evidence
and facts of the proceeding taken in their entirety show an intelligent and knowing waiver of rights
by the defendant and his attorney.
ISSUE NUMBER TWO
Did the trial comi err in attempting to assess repayment of attorney fees as part of the cost in this
case?
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The State takes no position as to whether the trial court ened when it ordered the Appellant
to reimburse the County for fees paid by the County to his comi-appointed attorney. Frankly, the
State is not aware of a procedure by which it could enforce an order of repayment on a prison inmate
even if one is valid. The State agrees that the trial court did issue a finding that Appellant was
indigent when the trial court appointed Mr. Bennett. CR 11, 12. Unless Appellant won the lottery
or received an award or an inheritance, it seems unlikely that his indigent status would change once
he began serving his nine year prison sentence. The record does not show any reason for this Comi
to believe Appellant is no longer indigent.
The State respectfully suggests that if this Court is inclined to grant relief, the proper relief
is to amend and reform the judgement, removing the order of payment of attorney fees.
CONCLUSION
Appellant's guilty plea and nine year sentence was not the result of an involuntary plea and
must be affamed.. The Comi would not be wrong were it to order the judgment in this matter be
refo1med to remove the trial comi' s order that Appellant reimburse Rusk County for the fees it paid
to Appellant's court-appointed attorney, Mr. Bennett.
PRAYER
WHEREFORE, for the reasons stated herein, the State of Texas prays that the Court of
Appeals overrule Appellant's Point of Error One and affirm the judgment and sentence of the 4th
District Comi, Rusk County, Texas, in this case. (albeit with a possible reformation of the judgment
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removing the attorney fee payment order).
Respectfully submitted,
MICHEAL JIMERSON
Rusk County District Attorney
/s/ Richard W. Kennedy
Richard W. Kennedy
Asst. County and District Attorney
Bar I.D. No. 11296830
115 N. Main St. Suite 302
Henderson, Texas 75652
ph: (903) 657-2265 fax: (903) 657-0329
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this the _ _ day of March, 2015, the following have
been completed: I filed the brief via elctronic means and sent an electronic copy to Appellant's
counsel, Hon. Eb Mobley
/s/ Richard W. Kennedy
Richard W. Kennedy
Asst. District Attorney
Bar I.D. No. 11296850
115 N. Main St. Suite 302
Henderson, Texas 75652
ph: (903) 657-2265 fax: (903) 657-0329
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