                                                                                            ACCEPTED
                                                                                        06-14-00110-CR
                                                                             SIXTH COURT OF APPEALS
                                                                                   TEXARKANA, TEXAS
                                                                                  12/22/2015 2:30:25 PM
                                                                                       DEBBIE AUTREY
                                                                                                 CLERK



                            No. 06-14-00110-CR
                   ____________________________________________
                                                           FILED IN
                                                                6th COURT OF APPEALS
                                                                  TEXARKANA, TEXAS
                                        IN THE                  12/22/2015 2:30:25 PM
                                                                     DEBBIE AUTREY
                             SIXTH COURT OF APPEALS                      Clerk
                                  AT TEXARKANA, TEXAS

                   ____________________________________________

                   CODY LANG THOMAS,
                                                           Appellant

                                          v.

                   THE STATE OF TEXAS,
                                                  Appellee
                   ____________________________________________

                                APPEAL FROM
                     TH
               THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
                          TRIAL COURT NO. 1423904
                   ____________________________________________

                     APPELLEE’S MOTION FOR REHEARING
                   ____________________________________________

                                               Will W. Ramsay
                                               110 Main Street
                                               Sulphur Springs, TX 75482
                                               903.885.0641, f. 903.885.0640
                                               wramsay@hopkinscountytx.com

                                               Attorney for Appellee
                                               State of Texas

              ORAL ARGUMENT REQUESTED IF NECESSARY




Appellee’s Motion for Rehearing
                     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
CODY LANG THOMAS                              Martin Braddy
                                              121 Oak Avenue, Suite A
                                              Sulphur Springs, Texas 75482
                                              903.885.2040 telephone
                                              500.885.2704 facsimile


                                              Appellant’s trial counsel
                                              Wade Forsman
                                              Post Office Box 918
                                              Sulphur Springs, TX 75482
                                              903.243.1775 telephone
                                              wade@forsmanlaw.com

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
                                              wramsay@hopkinscountytx.com




Appellee’s Motion for Rehearing                                               Page 1
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, THE STATE OF TEXAS as Appellee, who files this

Motion for Rehearing, and respectfully asks this Court to reform its opinion of

November 20, 2015 by setting aside the judgment in this case and remand the case

to the trial court for a new trial in its entirety as opposed to a new punishment

hearing. In support thereof, Appellant shows as follows:

                                         I.

1.    This case was originally indicted as the 3rd degree felony offense of

Engaging in Organized Criminal Activity. (C.R. pg. 4) The underlying felony

offense was a State Jail Theft. See Id. As seen throughout the entirety of the

record, both the defense and the State (erroneously) believed this case (as charged)

could ultimately be punished under the Habitual Felon Statute resulting in a

punishment range of 25 years to 99 years or Life in prison. (See R.R. Vol. 2 pg. 7;

See RR. Vol. 3 pg. 5) In exchange for the defendant’s plea of guilty, the State

agreed to drop the enhancement of “engaging in organized criminal activity” and

move forward on the enhanced State Jail Theft (which we now know was

improperly enhanced). (R.R. Vol. 3 pg. 6)

2.    The defendant believed that he was ultimately looking at a punishment range

of 25 to life. The State agreed to reduce the charge wherein the range of

punishment would be capped at 20 years. Both the State and the defendant entered


Appellee’s Motion for Rehearing                                                   Page 2
into this agreement erroneously and without a full understanding of the outcome of

their decision. It is very possible, knowing that his only exposure was 20 years in

prison, that the defendant would not have pled guilty to this offense. A maximum

of life in prison and the maximum of 20 years in prison are quite different.

3.    On the other hand, the State very likely would not have entered into this

agreement knowing they would be limited to punishment at 2 years in the State

Jail. As already stated, the original charge was a 3rd Degree Felony. The

defendant had one non-state jail felony conviction that would have absolutely

enhanced the punishment range from 10 years confinement to a maximum of 20

years confinement.

4.    As embarrassing as it is to admit, nobody involved in this plea process was

aware of the proper range of punishment. The defendant thought he had dodged a

bullet by pleading to a lesser punishment range. The prosecutor thought that he

had secured a guilty plea while remaining in an appropriate punishment range (2-

20 years) that he would satisfy the victim. Finally, the judge approved the plea

agreement and admonished the defendant on the punishment range that everyone

was misunderstanding.

5.    While the record is abundantly clear that this was not a plea agreement

entered into knowingly and intelligently by the parties, the defendant suffered no

harm by the mishandling. (Unless, of course, he would not have pled guilty at all


Appellee’s Motion for Rehearing                                                   Page 3
if he would have known the punishment was capped at 20 years!) The defendant

has spent almost two years in prison, which would be the maximum sentence for a

State Jail offense. As it stands now, he looks to walk out of jail in a much better

position than he ever dreamed.

6.     There could be an in-depth discussion of whether the defendant’s plea was

knowing and voluntary under Boykin v. Alabama. 395 U.S. 238 (1969). The State

would contend that an entire record showing that the parties were entering into an

agreement where everyone was mistaken, is prima facie evidence that due process

was violated. Even under that analysis, we would then be looking to see whether

the error was harmful. While not necessarily harmful to the defendant, the

outcome after appeal is extremely harmful to the plea agreement between the

parties.

7.     If a defendant successfully challenges a conviction obtained through a

negotiated plea of guilty, the proper remedy is specific performance of the plea

agreement, if possible. Shannon v. State, 708 S.W.2d 850, 852

(Tex.Crim.App.1986).

8.     This case is different than many appeals. The issue is not that a party did not

get a desired outcome. It is no surprise that the defendant will appeal after

receiving the maximum sentence. But, until the appeals process, nobody thought

what the defendant received was outside of the range of punishment. This is


Appellee’s Motion for Rehearing                                                  Page 4
because the crux of the original plea agreement dealt with removing the EOCA

language in the indictment and capping the punishment at 20 years in the

penitentiary. The Defendant readily admitted and pled true to the two

enhancement paragraphs in order to obtain this benefit. The understanding of the

parties was clear from the record: there could be a sentence of two years or a

sentence of 20 years in the penitentiary. Punishment in the State Jail was never

envisioned when entering into this plea agreement.

8.    The Court of Criminal Appeals has looked at this issue a number of times.

In Ex Parte Aaron Allen Adkins, there was an agreement between the parties that a

deadly weapon finding would be part of the judgment. See 767 S.W.2d 809, 810

(Tex. 1989). While the Court agreed that there was no evidence to support a

deadly weapon finding, they also opined that “the result of deleting the finding

without disturbing the remainder of the bargain would be to adjust the tenor of the

‘mutual obligation’ entered into by the parties” and it would “create a new bargain

not contemplated by the parties or the trial court when it accepted the plea

agreement and entered its judgment accordingly.” Id. at 811. Therefore, the Court

held that “specific performance of the agreement, without an essential portion of

the essence of the agreement….is an unacceptable remedy.” Id. The Court then

set the plea bargain aside in order to “place the parties once again on equal grounds




Appellee’s Motion for Rehearing                                                  Page 5
in relation to their bargaining positions which led to the initial plea agreement.”

Id.

9.    Also, in Ex Parte Billy Ross Sims, the Court of Criminal Appeals addressed

a similar issue. 868 S.W.2d 803 (Tex.Crim.App. 1993) overruled on other

grounds Ex Parte McJunkins, (Tex.Crim.App. 1997). There, the parties had an

agreement that the cases being pleaded would run consecutively. See id. The

Court later reversed this position, but, at that time, held that the parties could not

agree to such an action. After deciding that the consecutive sentences were

improper, the Court had to determine the relief. The Court ultimately decided that

the parties “agreed, although erroneously, that the imposition of consecutive

sentences was an available option.” Id. at 805. The Court also decided this was an

important part of the plea agreement. See id. “If this Court were to simply delete

the cumulation order only the State would be bound detrimentally to this aspect of

the agreement. This is neither logical nor fair. Specific performance of the

bargained-for [agreement] cannot be obtained. The parties must be returned to

their positions prior to the plea of guilty.” Id.

10.   Probably the largest contributing factor to entering into the plea agreement

in the case before this Court is the abandonment of the EOCA language and

proceeding as an enhanced second degree. This was pivotal to both the defendant

and the State. There was no agreement to move forward on a mere State Jail


Appellee’s Motion for Rehearing                                                    Page 6
Felony. To move forward as a State Jail felony would be to detrimentally bound

the State to what was never envisioned by the parties.

                                  CONCLUSION

      The November 20th opinion by this Court is well reasoned on the issue of

proper enhancement. However, remanding this case for a punishment hearing

within a range never contemplated by the parties would be a miscarriage of justice.

                                     PRAYER

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

requests this Court to grant his Motion for Rehearing, issue a new opinion setting

aside the judgment of the trial court, remanding this case for a new trial on the

merits, and for any further relief the Appellee may be entitled.

                                              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
                                              willramsay@hopkinscountytx.com

                                              Attorney for Appellee
                                              State of Texas




Appellee’s Motion for Rehearing                                               Page 7
                        C ERTIF ICATE   OF   W ORD C OUNT

      Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 1,593 words.

                                                     __/s/ Will Ramsay_
                                                     Will Ramsay


                           C ERTIF ICATE     OF   S ERVICE

      This is to certify that on December 22, 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 Motion for Rehearing                                              Page 8
