ACCEPTED 06-14-00051-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/2/2015 3:13:00 PM DEBBIE AUTREY CLERK

No. 06-14-00051-CR, 06-14-00058-CR, 06-14-00059 ____________________________________________FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE 2/4/2015 9:48:00 AM DEBBIE AUTREY SIXTH COURT OF APPEALS Clerk AT TEXARKANA, TEXAS

____________________________________________

STEVEN DEWAYNE PRUITT, Appellant

v.

THE STATE OF TEXAS, Appellee ____________________________________________

APPEAL FROM TH THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS TRIAL COURT NO. 1323371, 1323451, 1323452 ____________________________________________

APPELLEE’S BRIEF ____________________________________________

Will W. Ramsay 110 Main Street Sulphur Springs, TX 75482 903.885.0641, f. 903.885.0640 [email protected]

Attorney for Appellee State of Texas

ORAL ARGUMENT NOT REQUESTED

Appellee’s Brief I DENTITY OF P ARTIES AND C OUNSEL

Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all

parties to the trial court’s judgment and the names and addresses of all trial and

appellate counsel:

Appellant Appellant’s appellate counsel Steven Dewayne Pruitt Martin Braddy 121 Oak Avenue, Suite A Sulphur Springs, TX 75482 903.885.2040 telephone 903.885.2704 facsimile

Appellant’s trial counsel Heath Hyde 214 Connally Street Sulphur Springs, TX 75482 903.439.0000 telephone

Appellee Appellee’s trial & appellate counsel The State of Texas Will Ramsay 8TH Judicial District Attorney 110 Main Street Sulphur Springs, TX 75482 903.885.0641 telephone 903.885.0640 facsimile [email protected]

Appellee’s Brief Page i T ABLE OF C ONTENTS

Identity of Parties and Counsel ............................................................................ i

Table of Contents ................................................................................................ ii

Index of Authorities............................................................................................ iii

Statement of the Case ...........................................................................................2

Issues Presented....................................................................................................3

SOLE POINT OF ERROR: Appellant’s pleas were not made voluntarily.

Statement of Facts ...............................................................................................4

Summary of the Argument ...................................................................................5

Argument.......................................................................................................... 5-8

POINT OF ERROR NO. 1: Appellant’s pleas were made voluntarily as there were no improper admonishments under Article 26.13 and the record shows signed plea agreements as proof of voluntariness ................................................5

Prayer....................................................................................................................8

Certificate of Word Count....................................................................................9

Certificate of Service............................................................................................9

Appellee’s Brief Page ii I NDEX OF A UTHORITIES

Cases

These arguments are based upon the Code of Criminal Procedure and the direct evidence contained within the clerk’s file and the reporter’s record.

Statutes

TEX. CODE CRIM. P. art. 26.13………………………………………………… 5, 6

Appellee’s Brief Page iii No. 06-14-00051-CR, 06-14-00058-CR, 06-14-00059 ____________________________________________

IN THE SIXTH COURT OF APPEALS AT TEXARKANA, TEXAS

____________________________________________

STEVEN DEWAYNE PRUITT, Appellant

v.

THE STATE OF TEXAS, Appellee ____________________________________________

APPEAL FROM TH THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS TRIAL COURT NO. 1323371, 1323451, 1323452 ____________________________________________

APPELLEE’S BRIEF ____________________________________________

Appellee’s Brief Page 1 STATEMENT OF THE CASE

Appellee believes that the Appellant has accurately and succinctly given the

Statement of the Case in his brief and would adopt his version as follows:

Appellant was indicted in Cause Number 1323451 for Delivery of Marijuana, 5 pounds or less but more than a quarter ounce alleged to have occurred in a drug free zone. Appellant was indicted in Cause Number 1323452 for a second case of Delivery of Marijuana, 5 pounds or less but more than a quarter ounce alleged to have occurred in a drug free zone. Appellant was also indicted in Cause Number 1323371 for Burglary of a Habitation. Appellant pled “guilty” in each case and was sentenced by the trial court without the benefit of a plea agreement with the State of Texas. Although the burglary case was tried on its merits before the trial court prior to Appellant’s guilty plea on that case, all three cases were handled together by the court and Appellant was sentenced at the same time in each case.

The trial court sentenced Appellant to two year in the Institutional Division of the Texas Department of Criminal Justice in Cause Number 1323451. In Cause Numbers 1323452 and 1323371, the trial court found that the evidence substantiated Appellant’s guilt in each case and deferred a finding of guilt and placed Appellant on probation for ten years and assessed a fine of $1,500.00 in each case. The trial court also entered a Deadly Weapon finding in Cause Number 1323371. The trial court certified Appellant’s right to appeal in each case and Appellant timely filed a Notice of Appeal. (Brief for Appellant pgs. 7-8)

Appellee’s Brief Page 2 I SSUES P RESENTED

SOLE POINT OF ERROR: Appellant’s pleas were not made voluntarily.

Appellee’s Brief Page 3 S TATEMENT OF F ACTS

Counsel for appellant has written a Statement of Facts that is approximately

4-5 pages in length. (Brief for Appellant pgs. 8-13) The “facts” of this appeal deal

with the procedural tract of the litigation as opposed to the underlying events

constituting the crime. For that reason, Appellee adopts the aforementioned and

very detailed Statement of Facts set forth in the Brief for Appellant.

Appellee’s Brief Page 4 S UMMARY OF THE A RGUMENT

SOLE POINT OF ERROR: Appellant’s pleas were voluntary as there were no improper admonishments under Article 26.13 and the record shows signed plea agreements as proof of voluntariness.

A RGUMENT

Appellant complains that the trial court violated Article 26.13 of the Texas

Code of Criminal Procedure in that the court improperly admonished the defendant

prior to commencing the trial before the court. Appellant’s arguments are

misplaced for the following reasons.

A. Regarding the Correct Punishment Range

Appellant complains that he was admonished on the incorrect punishment

range at the initial plea hearing (wherein he actually pleaded not guilty). First of

all, the “admonishments” complained of at the first hearing were not

“admonishments” under Article 26.13 of the Code of Criminal Procedure. Article

26.13 is entitled “Plea of Guilty”. See Tex. Crim. Proc. Code Ann. Article 26.13

(West). In fact, the very first sentence of that article reads as follows: “Prior to

accepting a plea of guilty or a plea of nolo contendere, the court shall admonish

the defendant of….” See id. (emphasis added). This article applies solely to pleas

of guilty and nolo contendere. What the trial court stated prior to beginning the

trial on the merits were not “admonishments” as a defendant would receive during Appellee’s Brief Page 5 a plea hearing. The trial court was simply putting on the record the “lay of the

land” to make sure that all parties had the same understanding of the posture of the

case. Based on Appellant’s plea of “not guilty”, Article 26.13 was not triggered

and no statutory admonishments were necessary at that point.

Notwithstanding the above, prior to the trial starting, the following exchange

took place in open court after the conclusion of a bench conference:

THE COURT:··All right.··We're going to·proceed, then, with this as the intent to commit an·assault.··And if the State also -- if they can prove·that, and if they can further prove there was the use·or exhibition of a deadly weapon, that could present·a deadly weapon finding, but the punishment range·would be 2 to 20, and the deadly weapon finding, if·all of that is made, would simply aggravate the parole rules. Is that your understanding,·Mr. Ramsay? MR. RAMSAY:··Yes, Your Honor. THE COURT:··Mr. Hyde? MR. HYDE:··Yes, Your Honor.

(R.R. Vol. 3 pg. 12).

Regardless of the fact that the trial court was under no obligation to

“admonish” the Defendant, all parties were aware that the indictment alleged a 2nd

Degree Felony and the trial would proceed accordingly. So, regardless of the fact

that it was unnecessary, the applicable punishment range was put on the record in

the presence of the Defendant.

Appellee’s Brief Page 6 B. Regarding the Deferred Adjudication Discussion and the Voluntariness of the Plea

Secondly, any issue regarding an incorrect “admonishment” (again, this term

is used loosely) as to the eligibility of deferred adjudication was cured by allowing

the Defendant to change his plea. After realizing that deferred adjudication was

not available from the judge with a plea of “not guilty”, the judge allowed the

Defendant to withdraw his plea of not guilty and enter a plea of “guilty.” In doing

so, the Defendant, once again, completed the standard plea papers, which

enumerated the many rights he enjoys in every criminal case. He signed the plea

papers freely, voluntarily and knowingly waiving each and every one of those

rights except for the right to appeal. All of his rights, including the right to a jury

trial, were included in the plea papers and he freely, voluntarily, and knowingly

waived those rights. See (Clerk’s Record pgs. 27-32).

Appellant draws the picture of “two options” that were available for the

Defendant. No, there were other options available, but the Defendant made it clear

that it was his intent to plead guilty because that was his hope of getting deferred

adjudication. See (R.R. Vol. 4 p. 10-11). Under oath, the Defendant stated that he

was making the plea “freely and voluntarily,” that it was what he wanted to do, and

no one else was making him do it. See id. at 13-14.

Appellee’s Brief Page 7 Unfortunately, the result was not what Appellant wanted. But that does not

change the fact that the record shows his pleas to be made freely, voluntarily and

knowingly.

P RAYER

WHEREFORE, premises considered, Appellee, State of Texas, respectfully

requests that the judgment of the trial court be affirmed.

Respectfully submitted,

By: //s// Will Ramsay Will Ramsay 8th Judicial District Attorney State Bar #24039129 110 Main Street Sulphur Springs, TX 75482 903.885.0641, f. 903.885.0640 [email protected]

Attorney for Appellee State of Texas

Appellee’s Brief Page 8 C ERTIF ICATE OF W ORD C OUNT

Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 1,502 words.

__/s/ Will Ramsay_ Will Ramsay

C ERTIF ICATE OF S ERVICE

This is to certify that on February 2, 2015, I served a true and correct copy of the above and foregoing Appellant’s Brief by email on Martin Braddy, Attorney for Appellant.

__/s/ Will Ramsay_ Will Ramsay

Appellee’s Brief Page 9