Ward, Derek Clinton

PD-1573-15 PD-1573-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/4/2015 12:56:15 PM Accepted 12/4/2015 1:45:27 PM ABEL ACOSTA NO. __________________

CLERK

IN

THE

COURT

OF

CRIMINAL

APPEALS

OF

TEXAS _________________________________________________________

DEREK

CLINTON

WARD,

Appellant

V.

THE

STATE

OF

TEXAS,

Appellee _________________________________________________________

APPELLANT’S

PETITION

FOR

DISCRETIONARY

REVIEW __________________________________________________________

On

Review from

Cause

No.

06-­‐15-­‐00110-­‐CR

In the

Court of

Appeals

For the

Sixth

District at

Texarkana __________________________________________________________

On appeal from

Cause

No.

42,433-­‐B

In the

124th

District

Court of

Gregg

County,

Texas

Honorable

Alfonso

Charles,

Judge

Presiding

HOUGH-­‐LEWIS (“LEW”)

DUNN

ATTORNEY AT

LAW

P.O.

BOX

2226

December 4, 2015 LONGVIEW, TX

75606

Tel. 903-­‐757-­‐6711

Fax 903-­‐757-­‐6712

Email: [email protected]

Counsel for

Appellant

APPELLANT

RESPECTFULLY

REQUESTS

ORAL

ARGUMENT IDENTITIES

OF

JUDGE,

PARTIES,

AND

COUNSEL

Pursuant to

Rule

68.4(a),

Texas

Rules of

Appellate

Procedure, a complete list of the names of the trial judge, all parties, and counsel are as follows:

Trial

Judge:

Honorable

Alfonso

Charles

Presiding

Judge,

124th

District

Court

Gregg

County,

Texas

Attorneys for

Appellant:

Hough-­‐Lewis (“Lew”)

Dunn

Counsel on

Petition for

Discretionary

Review

P.O.

Box

2226

Longview,

TX

75606

Tim

Cone

Counsel on

Direct

Appeal

P.O.

Box

Gilmer,

TX

75644

Lance

R.

Larison

Trial

Counsel

Molly

Larison

Pre-­‐Trial

Counsel

P.O.

Box

Longview,

TX

75606

Attorneys for the

State:

Carl

Dorrough,

Criminal

District

Attorney

East

Methvin,

Suite

Longview,

TX

75606

Christopher

A.

Parker

Assistant

Criminal

District

Attorney

Trial

Counsel

Zan

Colson

Brown

Assistant

Criminal

District

Attorney

State’s

Counsel on

Appeal ii

TABLE

OF

CONTENTS

TABLE

OF

CONTENTS ……………………..................................................... iii

INDEX

OF

AUTHORITIES ...................................................................... v

STATEMENT

REGARDING

ORAL

ARGUMENT …………………………………… vii

STATEMENT

OF

THE

CASE....................................................................

STATEMENT

OF

PROCEDURAL

HISTORY...............................................

QUESTIONS

PRESENTED …………….………………………………......................

FIRST

QUESTION

PRESENTED

FOR

REVIEW

DID

THE

COURT

OF

APPEALS

ERR

IN

FINDING

NOTHING

FUNDAMENTALLY

ERROREOUS

IN

THE

CONDUCT

OF

THE

TRIAL

COURT

UNDER

ALMANZA,

WHEN

THE

RECORD

SHOWED

THAT

THE

TRIAL

COURT

ADOPTED

THE

STATE’S

POSITION

THAT

ECONOMIC

CONSIDERATIONS

CONTROLLED

THE

OUTCOME

OF

SENTENCING?

SECOND

QUESTION

PRESENTED

FOR

REVIEW

DID

THE

COURT

OF

APPEALS

ERR

IN

FAILING

TO

FIND

THAT

THE

TRIAL

COURT

HAD,

IN

ADOPTING

THE

STATE’S

POSITION

THAT

ECONOMIC

CONSIDERATIONS

CONTROLLED

THE

OUTCOME

OF

SENTENCING,

ABROGATED

THE

FOURTEENTH

AMENDMENT

DUE

PROCESS

AND

EQUAL

PROTECTION

CONCERNS

FOUND

IN

BEARDEN

V.

GEORGIA?

iii

Reason for

Granting

Review

In reaching its decision, the

Court of

Appeals failed to follow the precedent of

Almanza v.

State, 686 S.W.2d 157 (Tex.

Crim.

App.

1986 (op. on reh’g), and it ignored principles of

Fourteenth

Amendment

Due

Process and

Equal

Protection of the

Law that underlie the ability to pay restitution, found in

Bearden v.

Georgia, 461 U.S. 660 (1983).

ARGUMENT

AND

AUTHORITIES.................................................................

FACTS ………………………………………………………………………………………………..

LEGAL

ANALYSIS ………………………………………………………………………………..

PRAYER

FOR

RELIEF...................................................................................

CERTIFICATE

OF

SERVICE.........................................................................

CERTIFICATE

OF

COMPLIANCE …………………………………………………………

APPENDIX

Ward v .

S tate,

N o.

0 6-­‐15-­‐00110-­‐CR ( Tex.

A pp. –

T exarkana, delivered

N ovember

1 0,

2 015)(Mem.

O p.)(not d esignated f or publication) iv INDEX

OF

AUTHORITIES

CASES

Almanza v.

State, 686 S.W.2d 157 …………………………………………..

3,

4,

10, (Tex.

Crim.

App.

1984)(op. on reh’g)

Barton v.

State, 21 S.W.3d 287 (Tex.

Crim.

App.

2000) ……………………………

Bearden v.

Georgia, 461 U.S. 660 (1983) ……………………

3,

4,

12,

13,

14,

Griffin v.

Illinois, 351 U.S. 12 (1956) ……………………………………………………..

Lemos v.

State, 27 S.W.3d 42 (Tex.

App. –

San

Antonio

2000, pet. ref’d) ..

Lively v.

State, 338 S.W.3d 140 (Tex.

App. –

Texarkana

2011, no pet.)

Moreno v.

State, 900 S.W.2d 357 (Tex.

App. –

Texarkana

1995, no pet.)

Miller v.

State, 343 S.W.3d 499 (Tex.

App. –

Waco

2011, pet. ref’d) ……

Tate v.

Short, 401 U.S. 395 (1971) ……………………………………………………….

Williams v.

Illinois, 399 U.S. 235 (1970) ……………………………………………..

OPINIONS

JM-­‐917 (1988) ……………………………………………………………………………………

STATUTES

U.

S.

CONSTITUTION

Fourteenth

Amendment

Due

Process ……………

3,

4,

12,

13,

14,

15,

16, v STATUTES (CONT’D)

U.

S.

CONSTITUTION

Fourteenth

Amendment

Equal

Protection of the

Law ….

3,

4,

12,

13,

14,

15,

16,

TEX.

CONST.

ART.

1,

§19 …………………………………………………………………………………………

ART.

1,

§30(b)(4) …………………………………………………………………………………

CODES

ART.

42.037(k),

TEX.

CODE

CRIM.

P. ……………………………………………………..

ART.

42.12

§21(c),

TEX.

CODE

CRIM.

P. …………………………………………………

TEX.

LABOR

CODE,

§201 et. seq. …………………………………………………

TEX.

PENAL

CODE

§

31.03(e)(4)(A) ………………………………………………………

RULES

TEX.

R.

APP.

P.

33.1(a)(1) and (2) ………………………………………………………..

OTHER

MAGNA

CARTA,

Article (1215) ……………………………………………………… vi STATEMENT

REGARDING

ORAL

ARGUMENT

The opinion of the

Court of

Appeals impermissibly narrows the precedent of

Almanza on the concept of what is fundamentally erroneous.

Moreover, the ability to pay restitution, rooted in concepts of

Due

Process and

Equal

Protection, implicates fundamental rights that cannot be disregarded and set aside when the court of appeals is called upon to review the actions of the trial court in assessing punishment.

The opinion of the court of appeals sets a questionable precedent on the issues of judicial impartiality and of restitution in sentencing, something that affects victims and defendants statewide.

Oral argument will help delineate those concerns.

vii NO. __________________

IN THE

COURT

OF

CRIMINAL

APPEALS

OF

TEXAS _________________________________________________________

DEREK

CLINTON

WARD,

Appellant

V.

THE

STATE

OF

TEXAS,

Appellee _________________________________________________________

APPELLANT’S

PETITION

FOR

DISCRETIONARY

REVIEW __________________________________________________________

TO

THE

HONORABLE

JUDGES

OF

THE

COURT

OF

CRIMINAL

APPEALS:

NOW

COMES

Derek

Clinton

Ward,

Appellant in this matter, by and through his attorney of record,

Hough-­‐Lewis

Dunn, and pursuant to the provisions of

Texas

Rules of

Appellate

Procedure

66, et seq, urges this

Court to grant discretionary review, and in support will show as follows:

STATEMENT

OF

THE

CASE

Appellant was indicted for the offense of theft of property, valued at an amount not less than $1,500 but no more than $20,000, namely, a welding machine, a state jail felony.

TEX.

PENAL

CODE

§31.03(e)(4)(A)

(West

2012) (CR

4).

Appellant waived jury trial and entered a plea of

“guilty” to the trial court on or about

April

9,

2015 (RR

4:

4), and thereafter on

May

21,

2015, was sentenced to months in a state jail facility (RR

5:

41)(CR

50).

Appellant timely filed his pro se

“Notice of

Appeal” on or about

June

10,

2015 (CR

37).

STATEMENT

O F

P ROCEDURAL

H ISTORY

Petitioner perfected appeal to the

Sixth

Court of

Appeals in

Texarkana.

The

Sixth

Court of

Appeals affirmed the judgment of the trial court, issuing its

Memorandum

Opinion in

Ward v.

State,

No.

06-­‐15-­‐

00110-­‐CR, (Tex.

App. –

Texarkana, delivered

November

10,

2015) (Mem.

Op.) (not designated for publication).

No

Motion for

Rehearing was filed.

From that affirmance

Appellant now brings this

Petition for

Discretionary

Review.

GROUNDS

FOR

REVIEW

QUESTIONS

PRESENTED

FIRST

QUESTION

PRESENTED

FOR

REVIEW

DID

THE

COURT

OF

APPEALS

ERR

IN

FINDING

NOTHING

FUNDAMENTALLY

ERRONEOUS

IN

THE

CONDUCT

OF

THE

TRIAL

COURT

UNDER

ALMANZA,

WHEN

THE

RECORD

SHOWED

THAT

THE

TRIAL

COURT

ADOPTED

THE

STATE’S

POSITION

THAT

ECONOMIC

CONSIDERATIONS

CONTROLLED

THE

OUTCOME

OF

SENTENCING?

SECOND

QUESTION

PRESENTED

FOR

REVIEW

DID

THE

COURT

OF

APPEALS

ERR

IN

FAILING

TO

FIND

THAT

THE

TRIAL

COURT

HAD,

IN

ADOPTING

THE

STATE’S

POSITION

THAT

ECONOMIC

CONSIDERATIONS

CONTROLLED

THE

OUTCOME

OF

SENTENCING,

ABROGATED

THE

FOURTEENTH

AMENDMENT

DUE

PROCESS

AND

EQUAL

PROTECTION

CONCERNS

FOUND

IN

BEARDEN

V.

GEORGIA?

Reason for

Granting

Review

In reaching its decision, the

Court of

Appeals failed to follow the precedent of

Almanza v.

State, 686 S.W.2d 157 (Tex.

Crim.

App.

1986 (op. on reh’g), and it ignored principles of

Fourteenth

Amendment

Due

Process and

Equal

Protection of the

Law that underlie the ability to pay restitution, found in

Bearden v.

Georgia, 461 U.S. 660 (1983).

ARGUMENT

AND

AUTHORITIES

QUESTIONS

PRESENTED

FOR

REVIEW

FIRST

QUESTION

PRESENTED

FOR

REVIEW

DID

THE

COURT

OF

APPEALS

ERR

IN

FINDING

NOTHING

FUNDAMENTALLY

ERROREOUS

IN

THE

CONDUCT

OF

THE

TRIAL

COURT

UNDER

ALMANZA,

WHEN

THE

RECORD

SHOWED

THAT

THE

TRIAL

COURT

ADOPTED

THE

STATE’S

POSITION

THAT

ECONOMIC

CONSIDERATIONS

CONTROLLED

THE

OUTCOME

OF

SENTENCING?

SECOND

QUESTION

PRESENTED

FOR

REVIEW

DID

THE

COURT

OF

APPEALS

ERR

IN

FAILING

TO

FIND

THAT

THE

TRIAL

COURT

HAD,

IN

ADOPTING

THE

STATE’S

POSITION

THAT

ECONOMIC

CONSIDERATIONS

CONTROLLED

THE

OUTCOME

OF

SENTENCING,

ABROGATED

THE

FOURTEENTH

AMENDMENT

DUE

PROCESS

AND

EQUAL

PROTECTION

CONCERNS

FOUND

IN

BEARDEN

V.

GEORGIA?

Reason for

Granting

Review

In reaching its decision, the

Court of

Appeals failed to follow the precedent of

Almanza v.

State, 686 S.W.2d 157 (Tex.

Crim.

App.

1986 (op. on reh’g), and it ignored principles of

Fourteenth

Amendment

Due

Process and

Equal

Protection of the

Law that underlie the ability to pay restitution, found in

Bearden v.

Georgia, 461 U.S. 660 (1983).

[Appellant will address both the

First and

Second

Questions here.]

The

Court of

Appeals opinion sets out the facts in its opinion.

Ward v.

State,

No.

06-­‐15-­‐00110-­‐CR, (Tex.

App. –

Texarkana, delivered

November

10,

2015) (Mem.

Op.) (not designated for publication).

FACTS

Briefly summarizing the record, however:

Appellant pleaded guilty to the indictment of theft of a welding machine (RR

4:

4).

The controversy was confirmed at the sentencing hearing where the victim

(Appellant’s former employer), one

Newberry (RR

5:

5), testified about alleged (but unsubstantiated) charges to credit cards (RR

5:

6), and

Appellant’s taking and pawning of a welding machine (RR

5:

7-­‐8); also how

Newberry withheld

Appellant’s paycheck in connection with his allegations about the credit card abuse (RR

5:

12).

Appellant testified that, though he had worked for nine months, he had recently been laid off with the turn-­‐down in the oil industry (RR

5,

13-­‐14); had filed for unemployment (RR

5:

14-­‐15); had dependents he was trying to support (RR

5:

15-­‐16); had been through some physical as well as mental difficulties since the date of the offense back in

September

2012 (RR

5:

18-­‐19).

Appellant stated that he took the welding machine because he was “sore about” how

Newberry had withheld his wages in the controversy over the alleged credit card charges, something he denied doing (RR

5:

22-­‐23).

Appellant, with the help of his mother, had brought $1,000 to court that day to be paid toward restitution (RR

5:

27).

Under questioning from the trial court,

Appellant stated that he had lost his job on

April

11,

2015, about days before he came to that session of court for sentencing on

May , but had filed for unemployment benefits (RR

5:

28).

Age

36, he had had four spinal surgeries in his young life (RR

5:

17).

At that point the trial court questioned

Appellant, and had this comment about

Appellant’s filing for unemployment:

“And so knowing that the

State’s recommendation is going to be two years

State

Jail, you decide instead of finding a job to collect restitution, that you’re going to take a vacation for a month and a half” (RR

5:

28).

Finally,

Mrs.

Linda

Lee (Appellant’s mother) testified (RR

5: ff).

She spoke about the efforts

Appellant had made to turn his life around and accept his responsibilities to his dependents and to try to come up with restitution, but that his chances for employment in the oil industry had been affected by the downturn; that she had, through her employment, the expectation of having the entire amount of restitution available within the next month (RR

5:

32-­‐33).

At instances during the proceedings, the

State made statements that tied its recommendation for probation to a specific amount of money to be paid in restitution.

There is this, from the hearing on the guilty plea of

April

9,

2015, in anticipation of the date set for sentencing:

STATE:

And,

Your

Honor, in this case,

Mr.

Larison and

I have spoken, as well as with the victim,

Mr.

Newberry, there’s an expectation that a certain figure will be brought to court that date.

And that is the basis of what our agreement or future agreement is based upon,

Your

Honor.

(RR

4:

12)

See also:

RR

5:

9, where

State’s counsel, in questioning

Newberry says: “…we would either accept the restitution and reach a plea agreement for probation or the

State was going to ask for two years in

State

Jail.”

Then in cross-­‐examining

Appellant (RR

5:

24), there was this exchange with

State’s counsel:

STATE:

What did you understand the

State was going to do at this hearing?

APPELLANT:

That the sentence would be given.

STATE:

If you brought the money, the restitution owed on the case, the

State was going to agree to probation; is that correct?

APPELLANT:

Yes, sir.

STATE:

If you didn’t bring the money, what was the

State going to recommend?

APPELLANT:

Well, the

Judge – from my understanding, the

Judge would then have it either which way, probation or –

STATE:

You knew the

State would be asking for prison, right?

I don’t know if you remember it or not?

APPELLANT:

I don’t.

STATE:

You understood that was definitely what you were facing, what you were risking?

You were facing jail time if you didn’t bring the restitution, you know that, right?

APPELLANT:

I knew that was a possibility.

At the guilty plea hearing the trial court at first stated that it was not bound by any such agreements, but then went on to state:

“Now, if you do bring the restitution, then that may put this in a different situation.” (RR

4:

13).

At the sentencing hearing, the trial court stated (referring to the guilty plea):

“The plea was based on some possibilities including restitution where the

State would have a different offer.” (RR

5:

4).

When it came time to assess a sentence, the trial court stated:

“When you pled guilty on

April the

9th, you knew what the

State’s recommendation was.

You knew that your obligation under that recommendation was to come to

Court today with $3,750 and the

State would recommend a probated sentence.

You personally came to

Court with zero dollars.” (RR

5:

39).

The trial court went on to say:

“I promise you if you had gone out and flipped burgers and showed me you were working,

I would make a different decision than

I’m about to make.

But you didn’t.

No, rest my back.

I’m going to see how much unemployment pays me instead of going out and working.

That’s the problem with today’s society.

We have a lot of people who are willing to see what the government is going to pay them instead of working”

(RR

5:

41).

LEGAL

ANALYSIS

On appeal

Appellant’s sole point was this: that the trial court did not act as a neutral and detached fact finder, taking on the role of prosecutor, thereby violating

Fourteenth

Amendment

Due

Process and

Texas

Due

Course of the

Law,

TEX.

CONST.

ART. found in

Almanza v.

State, 686 S.W.2d 157 (Tex.

Crim.

App.

1984)(op. on reh’g) (Opinion, pp.6-­‐7).

Elaborating further, the

Court of

Appeals cited to

Moreno v.

State, 900 S.W.2d 357, 359 (Tex.

App. –

Texarkana

1995, no pet.)

for the proposition that the lack of an objection (and ruling thereon) is not necessary for appellate review if the alleged conduct of the trial court was

“so harmful that the defendant was denied a fair trial” (Opinion, p.

7).

The

Court of

Appeals, using that as a standard, found that the comments of the trial court in the case at bar “were neither egregiously harmful nor did they operate to deny

Ward a fair trial” (id.).

After a review of the evidence from the sentencing hearing, the

Court of

Appeals concluded that the trial court did not abandon its role and act as advocate for the

State (Opinion, p.

8).

However, the

Court of

Appeals failed to delve into the overriding concerns, both from the

State and also the trial court, with the economic considerations that dominated the direction and outcome of the sentencing hearing.

Indeed, the trial court did, in fact, abandon its neutral and detached role, and justified its sentencing on the very economic posture that the

State had made its hallmark for either probation or jail time.

Contrary to allowable conduct of filing for unemployment benefits, something sanctioned and encouraged under

State law (see,

TEX.

LABOR

CODE, et seq.), the trial court viewed that as somehow akin to “taking a vacation”, concluding with the following remark:

“That’s the problem with today’s society.

We have a lot of people who are willing to see what the government is going to pay them instead of working.”

The sum total of that sort of rhetoric and its disregard for a legitimate resource for those who are unemployed, the orientation of the trial court adopting the

State’s stance on how the sentencing turned on the question of economics: in its totality it qualifies as

Almanza fundamental error.

Both the

State and the trial court based the possibility of probation in this case on economic considerations, without regard to the financial circumstances of

Appellant.

Each of them said that probation was dependent on restitution being paid by

Appellant.

The trial court denounced

Appellant for filing for unemployment compensation, though such a step is certainly approved of by the

Legislature as an appropriate remedy for joblessness by the statutes of our

State.

See,

TEX.

LABOR

CODE, et seq.

By so doing, fundamental

Fourteenth

Amendment

Due

Process and

Equal

Protection considerations were ignored, resulting in fundamental error.

That error was compounded by the fact that nowhere in

Newberry’s testimony did he offer a figure on the amount of restitution, as promised earlier by the

State.

Economic considerations underlie the process of determining whether or not a defendant has complied with the terms of probation.

The lead case is

Bearden v.

Georgia, 461 U.S. 660 (1983).

There the

U.S.

Supreme

Court held that, “if the

State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.” Id., at

667-­‐68.

And then further:

“Only if alternate measures are not adequate to meet the

State’s interests in punishment and deterrence may the court imprison a probationer who has made bona fide efforts to pay.

To do otherwise would deprive the probationer of his conditional freedom because, through no fault of his own, he cannot pay the fine.

Such a deprivation would be contrary to the fundamental fairness required by the

Fourteenth

Amendment.” Id., at

672-­‐73.

In

Bearden v.

Georgia, the

Supreme

Court was not writing on a blank slate on the issue of how economic considerations can impinge upon the

Due

Process and

Equal

Protection rights of a defendant.

Precedents included

Williams v.

Illinois, 399 U.S. 235 (1970) (holding:

State cannot subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely because they are too poor to pay the fine) and

Tate v.

Short, 401 U.S. 395 (1971) (holding:

State cannot convert a fine imposed fine-­‐only statute into a jail term solely because the defendant is indigent and cannot immediately pay the fine in full).

See also,

Griffin v.

Illinois, 351 U.S. 12 (1956) (holding:

State could not deny appellate review to those who were indigent but grant it to those who could afford a trial transcript).

Writing for the majority,

Justice

O’Connor found that

“Due

Process and equal protection principles converge in the

Court’s analysis in these cases”

Bearden v.

Georgia, at

665.

Those constitutional principles are codified in

ART.

42.12

§21(c),

TEX.

CODE

CRIM.

P., where probation revocation is prohibited for failure to pay money, and where the burden of proof is on the

State to prove the ability to pay, coupled with a failure to pay.

It has been held that even a plea of “true” to an allegation for revocation does not waive a

Bearden v.

Georgia violation.

See,

Lively v.

State, 338 S.W.3d 140, 145 (Tex.

App. –

Texarkana

2011, no pet.).

Appellant contends that the

Court of

Appeals committed a two-­‐fold failure: first it failed to see that the trial court did abandon its neutral position when it made economic considerations the overriding basis upon which it determined sentence and, second, it failed to recognize a nonwaivable right at issue: namely, that a person’s freedom is not dependent upon whether or not a person can pay money.

That is the core consideration in

Bearden v.

Georgia, embedded in

Fourteenth

Amendment

Due

Process considerations, as well as in the

Equal

Protection

Clause.

Id., at

665.

Going back for centuries, there is a principle of

English law found in

MAGNA

CARTA,

Article (2015):

“To no one will we sell, to no one deny or delay right or justice.”1

In an opinion holding unconstitutional a statute that imposed a $10 fee for the dismissal of a charge of failure to maintain proof of financial responsibility for those who were innocent of the offense,

Attorney

General

Mattox cited to

MAGNA

CARTA,

Article

40, saying that the statute was “contrary to our notions of due process and the law of the land since

Magna

Carta.”

TEX.

ATT’Y

GEN.

OP.

NO.

JM-­‐917 (1988).

Admittedly,

Bearden v.

Georgia was a case that focused on probation revocation.

The case held that, in determining a defendant’s initial sentence, the trial court is not bound by the economic status of a defendant and may impose the maximum penalty.

Id., at

670.

However, in the case at bar, both the trial court and the

State made the payment (and lack of payment) of restitution, as well as the legitimate seeking of unemployment benefits

(both economic factors) the determining consideration in that initial sentence of imprisonment, rather than probation.

Therein lies the constitutional issue before this

Honorable

Court, the issue that was overlooked and disregarded by the

Court of

Appeals.

As a corollary to the

Fourteenth

Amendment

Due

Process and

Equal

Protection of the

Law issues raised in

Bearden v.

Georgia, there is this additional fundamental concern at work in the case at bar:

Where the trial court accepts the

State’s position on punishment, deciding to withhold consideration of probation from a defendant because he has not brought with him funds that the said court has deemed sufficient for restitution, and when it disparages and holds against a defendant his reliance upon legitimate economic support approved by

State law, then the decision has run afoul of

Fourteenth

Amendment

Due

Process and

Equal

Protection of the

Law.

Punishment no longer is meted out depending on the facts of the offense, but on the economic ability of the offender to pay money.

That certainly runs counter to

Fourteenth

Amendment

Equal

Protection considerations, since an offender who can pay the restitution gets probation, but one who does not -­‐-­‐ one who is compelled to rely upon

State assistance to live -­‐-­‐ gets incarcerated.

It has all the earmarks of dispensing justice according to the economic circumstances of the offender.

Compounding that error was the fact that, nowhere in the record during the hearing on punishment did

Newberry testify as to the value of the welding machine.

The trial court referred to the sum of $3,750, but that is nowhere in the record from the sentencing hearing, as promised by the

State at the conclusion of the guilty plea (RR

4:

12).

The figure of $3,250 is mentioned in a police report as the value of the welding machine (RR

6:

7); and in that same report the figure of $250.00 is placed on a pair of cables

(RR

6:

7).

However, at the low end of valuation, the machine was pawned for $425.00 (RR

6:

9); on that same page

Newberry gave a value on the machine of $3,500.

Id.

Then in another report (Call

Sheet

Report dated

12/29/2012)

Newberry reported (on the high end of valuation) that he had

“about

6-­‐10,000 dollars worth of equipment” stolen (RR

6:

14).

ART.

42.037(k),

TEX.

CODE

CRIM.

P., places the burden of proving the amount of restitution on the

State.

The statute says, in relevant part:

“The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the prosecuting attorney.”

The

Judgment recites an amount of restitution as $3,750, payable to the victim

Newberry, but does not say how or when that amount must be paid (CR

50-­‐51).

See,

Miller v.

State, 343 S.W.3d 499, 502 (Tex.

App. –

Waco

2011, pet. ref’d), where the reviewing court held that the amount of restitution must be just and supported by a factual basis within the record.

The

State did not elicit testimony from

Newberry at the sentencing hearing.

The evidence from the

State’s exhibits was, at best, ambiguous.

See also,

Barton v.

State, 21 S.W.3d 287 (Tex.

Crim.

App.

2000);

Lemos v.

State, 27 S.W.3d 42, 45 (Tex.

App. –

San

Antonio

2000, pet. ref’d).2

Appellant, with the assistance of his mother, had brought some money to court: $1,000.

In the opinion of the

State and of the trial court, it fell short.

So the principle at work was this: either bring all the money or go to prison.

The

Court of

Appeals failed to grasp the fundamental, nonwaivable, issue at work in the appeal in its consideration of whether the trial court had erred in its determination of punishment, namely, that the trial court departed from its neutral and detached role, adopting instead the position of the

State toward punishment, thereby imposing an unconstitutional burden of financial means upon

Appellant in deciding his sentence.

That burden ran afoul of

Fourteenth

Amendment

Due

Process and

Equal

Protection of the

Law.

PRAYER FOR

RELIEF

WHEREFORE,

PREMISES

CONSIDERED,

Derek

Clinton

Ward,

Appellant, prays that the

Honorable

Court of

Criminal

Appeals will grant discretionary review and, after full briefing on the merits, issue an opinion reversing the

Court of

Appeals’ judgment and remand for further proceedings consistent with the

Court’s opinion.

Respectfully submitted,

/S/

Hough-­‐Lewis

Dunn

HOUGH-­‐LEWIS (“LEW”)

DUNN

TEXAS STATE

BAR

NO.

02644600

E.

METHVIN

STREET,

SUITE

P.O.

BOX

2226

LONGVIEW, TX

75606

903-­‐757-­‐6711 903-­‐757-­‐6712 [email protected]

ATTORNEY FOR

APPELLANT

CERTIFICATE

OF

COMPLIANCE

This petition complies with the typeface requirements of

TEX.

R.

APP.

P.

9.4(e), because it has been prepared in a conventional typeface no smaller than

14-­‐point for text and

12-­‐point for footnotes.

This document complies with the word-­‐count limitations of

TEX.

R.

APP.

P.

9.4(i) because it contains

3,702 words, excluding the parts exempted by

TEX.

R.

APP.

P.

9.4(i)(1).

/S/

Hough-­‐Lewis

Dunn

CERTIFICATE

OF

SERVICE

I certify the foregoing

Petition for

Discretionary

Review was served upon the

State of

Texas by sending a true and correct copy to the

Criminal

District

Attorney of

Gregg

County and the

State

Prosecuting

Attorney via mail to:

Hon.

Zan

Colson

Brown,

Assistant

Criminal

District

Attorney for

Gregg

County,

E.

Methvin

St.

Suite

333,

Longview,

TX

75601, and

Hon.

Lisa

C.

McMinn,

State

Prosecuting

Attorney,

P.O.

Box

13046,

Austin,

TX

78711-­‐3046 on the

4th day of

December

2015.

/S/

Hough-­‐Lewis

Dunn

APPENDIX In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-15-00110-CR

DEREK CLINTON WARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th District Court

Gregg County, Texas

Trial Court No. 42433-B

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

After Derek Clinton Ward entered an open plea of guilty to the state jail felony of theft of property valued at $1,500.00 or more but less than $20,000.00,1 the trial court sentenced Ward to twenty-two months’ incarceration. Ward has appealed, arguing that the trial court abandoned its duty to remain impartial in the sentencing process. We reject this argument and affirm the trial court’s judgment and sentence.

I. Procedural Background

Ward entered an open plea of guilty to the charged offense of theft April 9, 2015,2 and returned for sentencing on May 21, 2015. It appears that although Ward had entered an open plea, there was something of an informal agreement between Ward and the State wherein the State would recommend that Ward would avoid incarceration if he appeared at the sentencing hearing with $3,750.00 in restitution. However, when Ward appeared at the sentencing hearing, he did not have the $3,750.00 in restitution; the only money proffered on his behalf was $1,000.00 brought by Ward’s mother. After a hearing, the trial court sentenced Ward to twenty-two months’ incarceration in a state jail facility.

During the hearing on punishment, Ward related that he had become unemployed in the days immediately following the early April plea hearing, his job as an oil-field drilling hand having been eliminated during the downturn in the oil market. Ward (then thirty-six years old) testified that he elected to seek unemployment benefits rather than pursue employment. He went on to relate that he had had four back surgeries over the years and told the court about the physically demanding nature of his career choice. In doing so, Ward stated, [I]t was kind of nice to just let my back have a rest for a minute anyways. Working on a drilling rig when you’re 36 years old and had as many spinal surgeries that I have had takes a toll on your body. I kind of looked at it as just taking a second off and giving my body a little rest.

Ward testified that in the weeks between losing his job and the sentencing hearing, he had applied for unemployment benefits, but that a few days before the hearing, he had been notified that he failed to include certain information with his application and that he was waiting for paperwork to be sent to him. He also said that although he had obtained job applications, he had not submitted them to prospective employers. He said he only took ibuprofen for his back pain, after successfully battling addiction to prescription pain medication. As for the job from which he had been laid off, he was “absolutely” eligible to be re-hired, and he already had “the paperwork” establishing that eligibility.

After the parties’ examination of Ward drew to a close, the trial court asked him several questions. During this exchange, the trial court referred to the time intervening between Ward’s plea hearing and the sentencing hearing as a “vacation.” Although Ward did not object to that characterization at the time the trial court uttered it, Ward now objects to it on appeal. For the context in which this was said, we quote some of the trial court’s statements as made during Ward’s sentencing hearing. After verifying the date that Ward had been terminated from his last job, the trial court said, “And so knowing that the State’s recommendation is going to be two years state jail, you decide instead of finding a job to collect restitution, that you’re going to take a vacation for a month and a half.” Ward responded by protesting that the condition of his back had been the reason for not seeking employment.3 The trial court then asked Ward why he should receive a suspended sentence. Ward answered, “Because I’ll stick to the probation, complete the probation and give you no reason for feeling like I did anything unjust, sir.”

Ward then called his mother (a loan officer for a mortgage company) to testify. She indicated that she was able and willing to pay $1,000.00 toward Ward’s restitution at that time and that she could pay the remaining portion of the restitution on June 15, less than a month away.

After a short recess, the trial court accepted Ward’s guilty plea and found him guilty as charged of theft of property valued at $1,500.00 or more, but less than $20,000.00. The court then described to Ward the factors taken into account in deciding the proper sentence: I have to decide if you deserve State Jail time, or do you deserve a shot at probation?

When you pled guilty on April 9th, you knew what the State’s recommendation was. You knew that your obligation under that recommendation was to come to Court today with $3,750 and the State would recommend a probated sentence.

You personally came to Court with zero dollars.

The factors I have to consider or send somebody to prison include their criminal history, obviously. If I was to consider just your criminal history, my decision is pretty easy. I would send you to prison, but I look at other factors, also.

I look at changes that they may have made, when the criminal history was. I look at several factors. Criminal history does vote against you. Your felony offense was long ago, so that helps you some.

I looked at the facts and circumstances of the offense.

I can’t really consider much on the credit card abuse allegations, just because of the lack of proof before me. I do consider the statements you made to Investigator Mitchell and other factors.

Here’s where it really comes down to my decision that I’m going to make today.

You pled guilty on April the 9th knowing that your part of the obligation was $3,750. You say you lost your job April 10th or 11th. Instead of going out and finding a new job whether it’s flipping burgers at McDonald’s for minimum wage or anything else, you testified that you wanted to take a month-and-a-half vacation to rest your back. It’s not until recently, the last few days that you’ve even filed for unemployment. You come in here today and expect me to grant you probation. You expect me to grant you probation, and, say, well, I’m hoping that my mom’s $1,000 is enough to bail me out. It’s not this time.

I promise you if you had gone out and flipped burgers and showed me you were working, I would make a different decision than I’m about to make. But you didn’t. No, rest my back. I’m going to see how much unemployment pays me instead of going out and working. That’s the problem with today’s society. We have a lot of people who are willing to see what the government is going to pay them instead of working.

It’s not going to work here. 22 months State Jail. I will give you credit for time served.

Ward argues that the trial court abandoned its duty to remain a neutral and detached fact-finder; Ward complains of the trial court’s use of the term “vacation” to describe the period between his being laid off and the sentencing hearing. Ward further points to the trial court’s statement that he would be unlikely to grant Ward much relief when the court was called upon to consider whether any of Ward’s sentence would be reduced as a result of diligent participation in applicable programs while incarcerated.4

II. Failure to Preserve Argument

As previously mentioned, Ward lodged no objection to the trial court’s use of the word “vacation” or any of the court’s other statements at any time during the sentencing hearing (not while the trial court was questioning Ward, during the statement he gave in explaining his reasoning for the sentence that was announced, or during any other part of the hearing). In almost every circumstance, in order to preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2).

Although Ward attempts to invoke due process claims in his assertion that the trial court abandoned his role as judge for that of prosecutor, Ward offers no explanation or argument as to why we should address this unpreserved issue. In a somewhat similar situation, we observed that un-objected to “remarks and conduct of the [trial] court may not be subsequently challenged unless they are fundamentally erroneous.” Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.—Texarkana 1995, no pet.) (citing Brewer v, State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.] 1978)).

In such a situation, we used the egregious harm standard from Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g), to determine if fundamental error had occurred. The alleged error must be “so harmful that the defendant was denied a fair and impartial trial.” Moreno, 900 S.W.2d at 359. If we were to look at Ward’s brief in the most generous light possible, we might say that he has claimed fundamental (or plain) error, i.e., the kind that obviates the need to preserve it at the time of trial. An appellate court may, in criminal cases, “tak[e] ‘notice of fundamental errors affecting substantial rights although they were not’ brought to the attention of the [trial] court.” Boler v. State, 177 S.W.3d 366, 373 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (quoting Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001)). “No objection is required when the error is so egregious that it rises to constitutional dimensions.” Id. (citing Jasper, 61 S.W.3d at 421).

The trial court’s comments were neither egregiously harmful nor did they operate to deny Ward a fair and impartial trial. Certainly, the comments did not rise to the status of a complaint of constitutional dimension. Read in context, the trial court was commenting on Ward’s behavior between the time of the plea hearing and the sentencing hearing. When he took Ward’s plea of guilty, the trial court admonished him of the full range of punishment, including a probated sentence with community supervision. Based on comments by the court and the State at the two hearings, it is clear that some informal agreement had been reached to the effect that if Ward brought the full restitution amount to the sentencing hearing, the State would recommend a probated sentence. However, if there was no such restitution, then there would be no such recommendation. At the plea hearing, the trial court warned Ward that it was not bound by any plea negotiations the parties might have, but also told Ward, “[I]f you do bring the restitution, then that may put this in a different situation. But right now it is an open plea, so you have certain obligations you need to meet.” When testimony developed at the sentencing hearing that Ward had worked most of his adult life in the oil-field business but made a conscious decision not to seek employment just days after the plea hearing (even after the discussions which had evidently taken place regarding leniency if Ward were to make restitution), the trial court was left to draw conclusions about Ward’s suitability for community supervision and regarding Ward’s commitment to fulfill potential obligations.

The sentencing hearing occurred before the trial court, so there was no jury that could have been confused or influenced by the court’s characterization of how Ward spent his time between the hearings. See Moreno, 900 S.W.2d at 359. It also does not appear that the trial court abandoned its role and acted as an advocate for the State. See id. The trial court’s decision process should not be hindered by a constraint on its ability to explain the rationale behind its decision. The fairness of the proceedings was not impugned. Even if error had occurred, it would not have been in the nature of plain or fundamental error. Accordingly, absent such error, it was incumbent upon Ward to preserve these issues for our review. We overrule Ward’s point of error.

We affirm the trial court’s judgment and sentence.

Bailey C. Moseley

Justice

Date Submitted: November 9, 2015

Date Decided: November 10, 2015

Do Not Publish

Court of Appeals

Sixth Appellate District of Texas

JUDGMENT

Derek Clinton Ward, Appellant Appeal from the 124th District Court of Gregg County, Texas (Tr. Ct. No. 42433-B). No. 06-15-00110-CR v. Memorandum Opinion delivered by Justice Moseley, Chief Justice Morriss and Justice The State of Texas, Appellee Burgess participating.

As stated in the Court’s opinion of this date, we find no error in the judgment of the court below. We affirm the judgment of the trial court.

We note that the appellant, Derek Clinton Ward, has adequately indicated his inability to pay costs of appeal. Therefore, we waive payment of costs.

RENDERED NOVEMBER 10, 2015 BY ORDER OF THE COURT JOSH R. MORRISS, III CHIEF JUSTICE ATTEST:

Debra K. Autrey, Clerk