                                                                                    ACCEPTED
                                                                                03-14-00707-CR
                                                                                        5432595
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                          5/27/2015 12:48:07 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                 IN THE THIRD COURT OF APPEALS
                         STATE OF TEXAS
                                                               FILED IN
                                                        3rd COURT OF APPEALS
DEVIN SIMMONS,                    )                          AUSTIN, TEXAS
         Appellant,               )                     5/27/2015 12:48:07 PM
                                  )                     No.JEFFREY
                                          Trial Court Cause  71988 D. KYLE
                                                                 Clerk
vs.                               )       COA No. 03-14-00707-CR
                                  )
THE STATE OF TEXAS,               )
         Appellee.                )
                                  )

__________________________________________________________________

 A DIRECT APPEAL OF A CRIMINAL CASE FROM THE 264TH JUDICIAL
            DISTRICT COURT OF BELL COUNTY, TEXAS
 ________________________________________________________________

                      APPELLANT’S OPENING BRIEF

                           BROWNSTONE, P.A.
                        ROBERT L. SIRIANNI, JR.
                          Texas Bar No. 24086378
                      201 N. New York Ave. Suite 200
                               P.O. Box 2047
                        Winter Park, FL 32790-2047
                         Telephone: (407) 388-1900
                         Facsimile: (407) 622-1511
                        Robert@brownstonelaw.com
                           Attorney for Appellant




                                      i
                IDENTITY OF THE PARTIES AND COUNSEL

      As required by Texas Rule of Appellate Procedure 38.1(a), the following are

parties and counsel to the trial court’s judgment:

1. Mr. Devin Simmons: Defendant-Appellant, currently incarcerated in Ferguson
Correctional Institution.

2. Mr. Michael F. White: Trial Counsel for the Defendant-Appellant, 100 Kasberg
Drive, Suite A9 Temple, Texas 76502.

3. Terry E. Clark: Assistant District Attorney, 1201 Huey Road, P O Box 540
Belton, Texas 76513-0540.

4. The Honorable Martha J. Trudo: Trial Court Justice




                                          ii
                                                    TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL ....................................................................................... ii
TABLE OF CONTENTS ............................................................................................................................. iii
TABLE OF AUTHORITIES ....................................................................................................................... iv
PRELIMINARY STATEMENT................................................................................................................... 1
STATEMENT OF THE CASE ..................................................................................................................... 1
   A. Nature of the Case ................................................................................................................................ 1
   B. Course of Proceedings and Disposition Below .................................................................................... 2
STATEMENT REGARDING ORAL ARGUMENT ................................................................................... 3
ISSUES PRESENTED.................................................................................................................................. 3
SUMMARY OF THE ARGUMENT ........................................................................................................... 4
STATEMENT OF FACTS ........................................................................................................................... 6
ARGUMENT ................................................................................................................................................ 9
I.   THE PLEA OF TRUE TO PRIOR CONVICTIONS WAS NOT KNOWING AND
INTELLIGENT............................................................................................................................................. 9
II.  THE STATE FAILED TO PRESENT EVIDENCE SUFFICIENT TO PROVE THE
ENHANCEMENT ALLEGATION BECAUSE THE DEFENDANT NEVER PLED THAT EITHER OF
THE PREVIOUS CONVICTIONS WERE FINAL. ................................................................................. 12
III. THE SENTENCE OF 45 YEARS VIOLATES THE CONSTITUTIONAL PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENT BECAUSE IT IS DISPORPORTIONATE TO
THE CRIME COMMITED. ....................................................................................................................... 17
IV.  THE COURT ERRED BY ALLOWING THE APPELLANT’S WIFE TO INVOKE HER FIFTH
AMENDMENT RIGHT TO TESTIFY AFTER MAKING INCRIMINATING STATEMENTS ON THE
WITNESS STAND. ................................................................................................................................... 19
PRAYER FOR RELIEF ............................................................................................................................. 23
CERTIFICATE OF COMPLIANCE .......................................................................................................... 23
CERTIFICATE OF SERVICE ................................................................................................................... 24




                                                                           iii
                                                TABLE OF AUTHORITIES


Cases


Augusta v. State, 639 S.W. 2d 481, 484 (Tex. Cr. App. 1982) ..................................................... 12

Beal v. State, 91 S.W.3d 794, 796 (Tex.Crim.App.2002) ............................................................ 12

Calhoun v. State, 214 S.W. 335 (Tex. Crim. App. 1919) ............................................................. 17

Casel v. State, No. 07-12-0106-CR, MEMORANDUM, 2012 WL 4210419 (Tex. App. -

   Amarillo, 9/20/12) ..................................................................................................................... 13

Crawford v. Washington, 541 U.S. 36, 51 124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004) ................ 20

De La Paz v. State, 273 S.W. 3d 671, 680 (Tex. Crim. App. 2008) ............................................. 20

Dinn v State, 570 S.W. 2d 910, 915 (Tex. Cr. App. 1978) ........................................................... 13

Ex Parte Chavez, 213 S.W. 3d 320, 323-24 (Tex. Crim. App. 2006) .......................................... 18

Griffin v. State, 703 S.W.2d 193, 196–97 (Tex. Crim. App. 1986) .......................................... 9, 12

Harvey v. State, 611 S.W. 2d 108, 111 (Tex. Cr. App. 1981) ................................................ 12, 13

Howard v. State, 429 S.W. 2d 155 (Tex. Cr. App. 1968) ............................................................. 13

In re Enron Corp. Sec., Derivative & Erisa Litig., 762 F. Supp. 2d 942, 961 (S.D. Tex. 2010) . 20

Jordan v. State, 495 S.W. 2d 949, 952 (Tex. Crim. App. 1973) .................................................. 17

McCarthy v. Arndstein, 262 U.S. 355, 358–59, 43 S.Ct. 562, 67 L.Ed. 1023 (1923) .................. 20

Miles v. State, 357 S.W. 3d 629, 634 (Tex. Crim. App. 2011) ................................................. 9, 12

Nabors v. State, No. 12-00-00371-CR, 2002 WL 1362470, at *9 (Tex. App. June 21, 2002)..... 15

Rogers v. U.S., 340 U.S. 367, 373–74, 71 S.Ct. 438, 95 L.Ed. 344 (1951) .................................. 21

Tex. Pen. Code § 12.32 (a) ............................................................................................................ 18

Texas Penal Code § 12.42 (4)(a) ...................................................................................... 12, 16, 18

                                                                     iv
Texas Rule of Appellate Procedure 25.2(a)(2) ............................................................................... 1

VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007) ............................................ 9

Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984) .................................................... 13

Statutes


Pursuant to Texas Rule of Appellate Procedure 26.2 ..................................................................... 1

Tex. Code Crim. Proc. Ann. art. 26.13(c) ....................................................................................... 6

Tex. Code. Crim. Proc. art 26.13 (a)(1) .......................................................................................... 6

Tex. R. App. P. 44.2(b) ................................................................................................................... 6

Texas Rule of Appellate Procedure 9.4(i)(1) ................................................................................ 21

Constitutional Provisions


Article 1, Section 13 of the Texas Constitution ............................................................................ 14

Eighth Amendment to the United States Constitution .................................................................. 14

United States Constitution, Amendment VI. ................................................................................ 16




                                                                     v
                        PRELIMINARY STATEMENT

      In this Opening Brief, the Appellant, Devin Simmons, will be referred to as

“Defendant” or “Appellant.” The Appellee, the State of Texas, will be referred to

as the “State” or the “Appellee.” The presiding trial judge, the Honorable Martha J.

Trudo, will be referred to as the “Trial Court.” Citations to the Clerk’s Record will

be abbreviated as “CR” followed by the appropriate page number. Citations to the

Reporter’s Record will be abbreviated as “RR” followed by the appropriate volume

and page number.

      This Court has jurisdiction over the instant appeal pursuant to Article V of the

Texas Constitution, Texas Rule of Appellate Procedure 25.2(a)(2) and Texas Code

of Criminal Procedure Annotated Article 44.02. Pursuant to Texas Rule of Appellate

Procedure 26.2, the Notice of Appeal in this case was timely filed, on November 20,

2014, within thirty days of November 20, 2014. (CR 122-123).



                         STATEMENT OF THE CASE



      A. Nature of the Case


      This is a direct appeal from a sentence imposed by the 264th Judicial District

Court of Bell County, Texas. Appellant pled not guilty to a charge of aggravated

robbery and was sentenced to forty five (45) years imprisonment. (RR Vol. 6 at 46).

                                          1
      B. Course of Proceedings and Disposition Below

      On or about October 16, 2013 a Grand Jury filed an Indictment, charging

Appellant with Aggravated Robbery. (CR at 5). Paragraph I alleged that Appellant

“did then and there, individually and as a party with Gini Lee Taylor, while in the

course of committing theft of property and with intent to obtain or maintain control

of said property, intentionally, knowingly or recklessly cause bodily injury to Robert

Patrick by shooting Robert Patrick with a firearm, and the defendant did then and

there use or exhibit a deadly weapon, to-wit: a firearm.” (CR at 5). Paragraph II

alleged that Appellant had previously suffered a conviction for Burglary of a

Habitation. (CR at 5). Finally, Paragraph III alleged that Appellant additionally

suffered a prior conviction for Unlawful Possession of a Firearm by a Felon. (CR at

5).

      Appellant was never asked by the trial court how he pled to the allegations set

forth in Paragraph I of the Indictment, and Appellant simply stated that he wanted a

jury trial when asked how he would like to proceed. (RR Vol. 2 at 10). At the

conclusion of trial, Appellant was found guilty of the offense of aggravated robbery

as charged in the indictment. (RR Vol. 5 at 94). The Appellant elected court

sentencing and was sentenced by the trial court to 45 years imprisonment.




                                          2
                 STATEMENT REGARDING ORAL ARGUMENT

      Appellant submits the issues are sufficiently clear such that oral argument is

not necessary.



                             ISSUES PRESENTED

1.    Was the Appellant’s plea of true to enhancement allegations in the Indictment

knowing and intelligent when the trial court failed to properly admonish the

Appellant of the sentencing consequences?

2.    Did the State fail to adequately prove the existence of the enhancement

allegations when the defendant never pled that the enhancement allegations were

true, when the State produced no evidence that the enhancement allegations were

accurate, and when the Appellant never specifically pled that he was the same person

as mentioned in the Indictment?

3.    Did the trial court violate the Appellant’s right to be free from cruel and

unusual punishment by sentencing him to 45 years for aggravated robbery when he

was not the actual attacker, and when multiple witnesses testified that the co-

conspirator was completely responsible for the victim’s injuries?



4.    Did the trial court err in allowing the co-conspirator to remain silent on the

witness stand after she had already waived her privilege against self-incrimination

                                         3
by admitting in open court the existence of incriminating communications with the

Appellant? Was the Appellant’s right to confrontation thereby violated depriving

him of a fair trial?



                         SUMMARY OF THE ARGUMENT

         The trial court erred in taking the Appellant’s plea of true to the prior

convictions as alleged in the indictment. Therefore the plea of true to the priors was

not knowing and voluntary. The admonishment of the sentencing enhancements was

not done contemporaneously with the taking of the plea. At the pretrial hearing,

Appellant rejected an offer that would have given him a 15 years minimum

punishment range. It is unreasonable to assume that he knowingly and voluntarily

admitted to priors that would enhance his punishment range to a minimum of 25

years.

         The State also failed to present sufficient evidence that the Appellant’s second

prior conviction was final prior to the commission of the second alleged prior. The

Appellant never pled on the record that the paragraphs in the indictment were true.

Also, the Appellant never specifically pled that the alleged prior offense had been

finalized before the commission of the second alleged offense, and the state

presented no evidence that this was the case. Finally, the Appellant never admitted




                                             4
or pled to being the same person that committed the offenses as alleged in the

indictment.

      The trial court violated the Appellant’s right to be free from cruel and unusual

punishment since the sentence of 45 years was grossly disproportionate to the

offense. Numerous witnesses including the victim testified that the Appellant’s wife

was soley responsible for striking the victim over the head with a foreign object and

shooting the victim with a pistol. The Appellant’s wife therefore was independently

responsible for the most serious of the victim’s injuries. In light of testimony the

court heard at the sentencing hearing about the Appellant’s character and ties to the

community, the sentence was constitutionally disproportionate.

      The trial court also erred when it allowed the Appellant’s wife, and co-

conspirator to refuse testimony of Fifth Amendment grounds.             At trial, the

Appellant’s wife admitted on the witness stand that she had written letters to the

Appellant after the crime had occurred. When asked to testify as to the contents of

those letter, she again invoked her Fifth Amendment privilege and the court did not

instruct her to answer the question. Afterwards the Appellant attempted to testify as

to the contents of the letters, in which she wrote to the Appellant regarding what her

testimony would be at trial in regards to her own culpability. The State objected on

the grounds of hearsay and the objection was sustained.




                                          5
      Supreme Court case law provides that once incriminating communications are

revealed, Fifth Amendment privileges are waived and the declarant must testify to

the contents of the communication. Therefore the trial court violated the Appellant’s

right to confrontation and right to a fair trial by wrongfully denying him the

opportunity to develop the testimony of the witness.



                           STATEMENT OF FACTS

      In the early morning hours of October 13th 2013, Robert Patrick was shot

and hit over the head with a foreign object by Gini Taylor, wife of the Appellant in

the instant case. The victim met Gini Taylor the same night that she attacked him,

at Pretty Lady Strip Club, where she worked as a professional stripper. (RR Vol. 4

at 17, 20). The victim left the club around 2am (RR Vol. 4 at 21), then returned to

the club around 3am and gave Gini Taylor a ride back to her apartment where she

lived with the Appellant. (RR Vol. 4 at 22). The victim stopped at an ATM

machine on the way to Gini Taylor’s apartment (RR Vol 4 at 24) and then drove

Gini Taylor home to her apartment with the intention of paying her for sex. (RR

Vol. 4 at 51). Sometime after entering the apartment, an altercation ensued

between Robert Patrick and the Appellant. (RR Vol. 4 at 28; Vol. 5 at 41). During

the altercation between the two men, Gini Taylor hit the victim over the head with




                                         6
a foreign object and then shot him with a pistol. (RR Vol. 4 at 31-31; Vol. 5 at 43-

44).

       During the jury trial the Appellant’s wife invoked her Fifth Amendment

Privilege against self-incrimination, but then proceeded to admit that she wrote

letters to the Appellant after the commission of the crime. (RR Vol. 5 at 31). When

asked by defense counsel whether or not those letters discussed what her testimony

would be a trial, she refused to answer the question on Fifth Amendment grounds.

(RR Vol. 5 at 31). Subsequently, Appellant testified on his own behalf and attempted

to introduce through testimony, the statements which incriminated his wife and

exculpated himself. The State objected on the grounds of hearsay and the objection

was sustained. (RR Vol. 5 at 45). The Appellant was unable to introduce the

exculpatory materials that his co-conspirator had alluded to in her testimony.

       At the sentencing hearing, the Appellant’s mother testified that the

Appellant’s wife called her and admitted full responsibility for the shooting. (RR

Vol. 6 at 25). At the sentencing hearing, the trial court heard testimony from the

Appellant’s mother that the co-conspirator, Gini Taylor, had called her before trial

and admitted full responsibility for shooting and injuring the victim. (RR Vol. 6 at

25). The trial court also heard testimony that a harsh sentence would interfere with

his ability to be there for his young daughter. (RR Vol. 6 at 28). The trial court

sentenced the Appellant to 45 years imprisonment.


                                          7
       Although the Appellant never entered a plea on the record to the charges in

Paragraph I of the indictment, the trial court at the pretrial hearing took his plea of

true to the enhancement allegations in Paragraphs II and III at the conclusion of trial.

(RR Vol. 5 at 96-97). The trial court admonished the Appellant of the consequences

of pleading true to the enhancement allegations at the pretrial hearing on August 4,

2014. (RR Vol. 2 at 5). After the trial had concluded and the jury rendered a verdict

of “guilty” to Paragraph I, the court took the pleas of true from the Appellant in

regards to the enhancement allegations. (RR. Vol. 5 at 98). Afterwards, the trial

informed the Appellant in front of the jury that his sentence would be enhanced as a

result of pleading true to the prior convictions. Id. The trial court, in the presence of

the jury, enhanced the range of punishment from 5 to 99 years to 25 years and up to

life. Id.

       The Appellant’s sentencing hearing took place almost three months later on

October 23, 2014. (RR Vol 5 at 1). The trial judge, who could not remember having

taken the pleas of true from the defendant at the pretrial hearing, once again took the

pleas of true from the Appellant without the proper admonishments. (RR Vol. 5 at

6). The trial court sentenced the Appellant to 45 years in the Texas Department of

Criminal Justice. (RR Vol. 6 at 46).




                                           8
                                  ARGUMENT

I.    THE PLEA OF TRUE TO PRIOR CONVICTIONS WAS NOT
      KNOWING AND INTELLIGENT.

      Prior conviction of a felony offense can be used by the court to enhance a

sentence after conviction of a subsequent offense. See Miles v. State, 357 S.W. 3d

629, 634 (Tex. Crim. App. 2011). When determining if a plea was knowing and

voluntary the court must consider the totality of the circumstances in light of the

record. Griffin v. State, 703 S.W.2d 193, 196–97 (Tex. Crim. App. 1986). Prior to

accepting a guilty plea the court must admonish the defendant of the range of

punishment attached to the offense. Tex. Code. Crim. Proc. art 26.13 (a)(1).


The Texas Code of Criminal Procedure provides:


      “In admonishing the defendant . . . , substantial compliance by the court
      is sufficient, unless the defendant affirmatively shows that he was not
      aware of the consequences of his plea and that he was misled or harmed
      by the admonishment of the court.”
            Tex. Code Crim. Proc. Ann. art. 26.13(c); VanNortrick v. State,
            227 S.W.3d 706, 708 (Tex. Crim. App. 2007).
      The court may not disregard this error since it affected the substantial rights

of the defendant. Tex. R. App. P. 44.2(b).


      Even if substantial compliance can be found in the record, the defendant was

not aware of the consequences of his plea at the time it was taken and he was harmed

by the erroneous manner in which the court admonished him. In the instant case, the

                                         9
judge did not inform the defendant of the possibility of having an enhanced sentence

when taking his plea of true in regards to the enhancement allegations. (RR Vol. 5

at 96-97). The defendant was admonished of the plea enhancements at a pretrial

hearing on August 4, 2014. (RR Vol 2 at 5). It was not until after the trial was

completed that the trial court took the defendant’s plea of true on paragraphs 2 and

3 of the indictment. At the conclusion of the two day trial, after the jury had rendered

its verdict, the trial court took the defendant’s plea of true to paragraphs 2 and 3 of

the indictment for the first time. Immediately after taking his plea of true in open

court the trial judge then informed the defendant in front of the jury that his sentence

would be enhanced. (RR Vol. 5 at 98). The court found that the range of punishment

was enhanced from 5 to 99 years to 25 years and up to life. (RR Vol. 5 at 98).


      At the sentencing hearing on October 23, 2014 the trial the judge could not

remember ever having taken the plea of true from the defendant at the pretrial

hearing. (RR Vol. 5 at 6). The judge therefore took the pleas on the record again,

and again failed to admonish the defendant of the enhancement consequences

thereof. (RR Vol. 5 at 6). At the conclusion of the sentencing hearing the trial judge

sentenced the defendant to 45 years in the Texas Department of Criminal Justice.

(RR Vol. 6 at 46).


      In light of the entire record, the admonishment which took place on August 4,

2014, which was not contemporaneous with either of the pleas of true, renders the
                                          10
admonishment constitutionally deficient. The defendant cannot be said to have

made those pleas in a knowing and intelligent way when an entire 2 day trial had

been presented in between the admonishment of the sentence enhancement and the

initial taking of the pleas. It certainly cannot be said that the admonishments at the

pretrial hearing were sufficient to advise the defendant of the consequences of a plea

of true that occurred almost 3 months later at the sentencing hearing. The judge

herself could not even remember at the sentencing hearing on October 23, 2014 that

the pleas of true had been taken at the conclusion of the trial. It is unreasonable to

assume that the defendant, who was apprised of the sentencing enhancements

beforehand had a full and conscious understanding of the consequences of his plea

at the time it was taken. Furthermore, the defendant at the pretrial hearing on August

4, 2014 had rejected an offer that would have made the range of punishment between

15 and 35 years. (RR Vol. 2 at 10). Instead the defendant elected to go to jury trial.

Id. It is unreasonable to assume that a defendant who wished to go to jury trial

instead of accepting a possible 15 year punishment was suddenly at the close of trial

willing to stipulate to priors that would increase the minimum punishment to 25

years. The defendant was misled and harmed by the way he was admonished by the

court. Therefore the sentence should be reformed and should be reduced to the

extent that the sentence was increased due to the enhancement allegations.




                                         11
II.   THE STATE FAILED TO PRESENT EVIDENCE SUFFICIENT TO
      PROVE THE ENHANCEMENT ALLEGATION BECAUSE THE
      DEFENDANT NEVER PLED THAT EITHER OF THE PREVIOUS
      CONVICTIONS WERE FINAL.

      In order for the court to use prior felony convictions for enhancement

purposes, the conviction must be final.         Beal v. State, 91 S.W.3d 794, 796

(Tex.Crim.App.2002). The Texas Penal Code provides that the defendant’s sentence

may be enhanced for prior felony convictions if:

      “the defendant has previously been finally convicted of two felony
      offenses, and the second previous felony conviction is for an offense
      that occurred subsequent to the first previous conviction having become
      final, on conviction the defendant shall be punished by imprisonment
      in the Texas Department of Criminal Justice for life, or for any term of
      not more than 99 years or less than 25 years.”
                                        Texas Penal Code § 12.42 (4)(a)
      The burden of proof is on the state to show that the prior conviction was

final and that the defendant was the person convicted of the previous offense.

Augusta v. State, 639 S.W. 2d 481, 484 (Tex. Cr. App. 1982); Harvey v. State,

611 S.W. 2d 108, 111 (Tex. Cr. App. 1981). An appealed conviction becomes

final on the date that the appellate court confirms the conviction. Beal supra,

at 795. Unlike a plea of guilty, a plea of true constitutes evidence sufficient to

prove the enhancement allegation. Dinn v State, 570 S.W. 2d 910, 915 (Tex.

Cr. App. 1978); Harvey, supra. When a plea of true is entered, the State’s

burden of proof is satisfied for the purposes of proving an enhancement


                                           12
allegation. Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984).

“Therefore, the fact that appellant entered a plea of “true” must be

affirmatively reflected by evidence in the record.” Id.


           This case is unlike Casel v State, where a sister court recently held that a plea

of true was sufficient to support a finding of finality when the defendant specifically

pled that they were finally convicted of that offense. See Casel v. State, No. 07-12-

0106-CR, MEMORANDUM, 2012 WL 4210419 (Tex. App. - Amarillo, 9/20/12).1


           The Defendant’s case is similar to that of Howard v. State, where the evidence

used to support the enhancement allegation was insufficient. Howard v. State, 429

S.W. 2d 155 (Tex. Cr. App. 1968). There, the defendant elected court sentencing

and the record on appeal contained a stipulation by the defendant that he was the

same person convicted of the previous offense. The record on appeal also contained

a judgment stating that the defendant was “the same person previously convicted as

alleged in the indictment for enhancement of punishment”, and a sentence stating

that he was previously convicted. The Texas Court of Criminal Appeals held that

the trial court should have included the stipulation upon which it based its findings

in the record. Howard at 156.




1
    Casel v. State, although unpublished, cites authoritative case law adopted by the courts.

                                                           13
      There was even less evidence presented to support the enhancement

allegations in the instant case than in Howard. In the instant case, the record on

appeal contains an indictment which states the basis for the enhancement allegations.

(CR at 5). Paragraph 2 of the indictment states that the defendant was convicted of

burglary on December 12, 2009. Id. Paragraph 3 states that the defendant was

subsequently convicted of possessing a firearm, and also states that the charge in

Paragraph 2 was final at the time the conviction in Paragraph 3. Id. At the

conclusion of the jury trial the court took the defendant’s plea of true to Paragraphs

2 and 3 and read those paragraphs verbatim to the defendant.


       The defendant pled true to those paragraphs at that time. (RR Vol. 5 at 97).

The trial court did not ask him if he was pleading true to those paragraphs because

they were true, but rather asked the defendant if he was pleading true because he was

“previously convicted as alleged and for no other reason”. (RR Vol. 5 at 97).


      The instant case is therefore distinguishable from Nabors v. State, where

admission of the sentencing allegations were held to be an adequate basis for

enhancement when the defendant specifically stated that he was pleading true

because the “because the enhancement paragraphs were true and for no other




                                         14
reason.” Nabors v. State, No. 12-00-00371-CR, 2002 WL 1362470, at *9 (Tex. App.

June 21, 2002). 2


           The defendant never separately pled to the fact that the first enhancement

allegation was final at the time the second allegation occurred, and the court did not

ask him to admit on the record that he was the same person as mentioned in

paragraphs 2 and 3 of the indictment. The defendant never stated that he was

pleading true because the paragraphs in the indictment were true. He only stated

that he was pleading true because he was convicted. Therefore the defendant’s first

plea of true does not constitute sufficient evidence for the purposes of sentence

enhancement.


           No other evidence was presented by the state to prove that the enhancement

allegation in Paragraph 2 was final at the time the offense in Paragraph 3 occurred.

Furthermore, the indictment did not specifically state that the defendant in this case

was the same person convicted of the offenses in Paragraphs 2 and 3. At trial the

jury did not find beyond a reasonable doubt that Paragraphs 2 and 3 were true, the

jury only found the defendant guilty as charged in Paragraph 1 of the indictment.

(RR Vol. 5 at 94).




2
    Nabors v. State, although unpublished, cites authoritative case law adopted by the courts.

                                                          15
            In October of 2014, at the outset of the sentencing hearing, the trial

judge again took the defendant’s plea on the enhancement allegations listed in the

indictment because she could not remember ever having taken the pleas in the first

place. (RR Vol. 6 at 6). The judge took the plea as follows:


            “Now, you have paragraphs 2 and 3 which allege prior
      convictions. In paragraph 2, it alleges that you were convicted in the
      27th District Court of burglary of a habitation in 2009.
             Paragraph 3 alleges the unlawful possession of a firearm by a
      felon and that you were convicted in November of 2011 in the 426th.
            So I’m going to ask you at this time: To those paragraphs how
      do you plead, true or not true?”
                                                         (RR Vol. 6 at 6)
      The defendant then pled true to the paragraphs as they were stated to him by

the judge. The judge did not inform the defendant that Paragraph 3 alleged that the

charge in Paragraph 2 was final at the time the subsequent offense occurred.

Furthermore, the judge never asked the defendant to plead specifically that the

charge in paragraph 3 occurred after the charge in paragraph 2 was finalized. No

evidence was offered by the state to prove that the offense in paragraph 2 was

finalized for the purposes of enhancing the defendant’s sentence under Texas Penal

Code § 12.42 (4)(a). There was no stipulation upon which the trial court made its

finding that the enhancement allegations in the indictment could be used to enhance

the defendant’s sentence. The court asked the defendant whether or not he was

pleading true because he was “convicted as alleged in each of those paragraphs”.
                                        16
(RR Vol. 6 at 8). To this, the defendant replied in the affirmative. Once again the

defendant was never asked if he was pleading true because the entire paragraph was

true, he was only asked if he was pleading true because he had been convicted.


       Therefore the defendant is entitled to reformation of the judgment and

sentence since the record does not reflect any evidence or stipulation to support

sentencing enhancement. The judgment and sentence should be reformed in a way

that eliminates references to the prior convictions as alleged in the indictment.



III.   THE   SENTENCE   OF    45 YEARS     VIOLATES  THE
       CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND
       UNUSUAL PUNISHMENT BECAUSE IT IS DISPORPORTIONATE
       TO THE CRIME COMMITED.

       The constitutional prohibition against cruel and unusual punishment is

guaranteed by the Eighth Amendment to the United States Constitution and Article

1, Section 13 of the Texas Constitution. Calhoun v. State, 214 S.W. 335 (Tex. Crim.

App. 1919); Jordan v. State, 495 S.W. 2d 949, 952 (Tex. Crim. App. 1973). The

Eight Amendment to the United States Constitution provides that “excessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” The Supreme Court of the United States has held that

“punishment is cruel and unusual if it is ‘grossly disproportionate to the crime’”. The

Texas Court of Criminal Appeals has held that if a sentence is within the range of


                                          17
punishment allowable by statute, it nevertheless may be disproportionate to the

gravity of the offense. See Ex Parte Chavez, 213 S.W. 3d 320, 323-24 (Tex. Crim.

App. 2006).


      At the time of sentencing, the Appellant was only 26 years old. (RR Vol. 5 at

47). If the Appellant were to serve the entire term of his sentence he would be over

70 years old at the time of his release. The evidence on the record shows that it was

the Appellant’s wife, Gini Taylor, who shot the victim the night of the incident. (RR

Vol. 4 at 32; RR Vol. 5 at 55). Furthermore the victim himself testified that it was

Gini Taylor who caused the injuries to his head by hitting him with a foreign object

(RR Vol. 4 at 31).


      The punishment range the court selected was a minimum of 25 years and up

to life. Texas Penal Code § 12.42 (4)(a); (RR Vol. 5 at 98). Without the admission

of the plea of true the sentencing range would have been 5 to 99 years. Tex. Pen.

Code § 12.32 (a). In light of the fact that the pleas of true to the enhancement

allegations were invalid, the sentence is disproportionate to the crime committed.

When the minimum possible sentence was enhanced impermissibly from 5 years to

25 years by the trial court the punishment became disproportionate.


      The court should also consider the fact that the plea of true to Paragraph 3 of

the indictment was not a plea of true to a crime of violence. Paragraph 3 of the


                                         18
indictment was for felon in possession of a firearm, and not for a crime of violence.

(CR at 5).


      The Appellant has a young daughter, who he is close to, and the imposition of

this sentence will deprive him of the opportunity to see her grow up. (RR Vol 6 at

28). The co-conspirator in this case acted willfully and independently and was the

sole cause of the most serious injuries sustained by the victim. The Appellant in this

case should not be bearing the brunt of the punishment for a crime committed by

another. One of the prior offenses used to enhance the Appellant’s sentence was not

a crime of violence. In light of the entire record, the sentence of 45 years was grossly

disproportionate to the offense committed. The Appellant therefore respectfully

requests that the court abate the length of his sentence to reflect his actual level of

culpability in the current case or remand the case for a new sentencing hearing.



IV.   THE COURT ERRED BY ALLOWING THE APPELLANT’S WIFE
      TO INVOKE HER FIFTH AMENDMENT RIGHT TO TESTIFY
      AFTER MAKING INCRIMINATING STATEMENTS ON THE
      WITNESS STAND.

      The Sixth Amendment to the United States Constitution gives all defendants

in a criminal trial the right to confront the witness against them. United States

Constitution, Amendment VI. In Crawford v. Washington the Supreme Court has

held that the right to confrontation applies to in court testimony and out-of-court


                                          19
statements that are testimonial in nature. Crawford v. Washington, 541 U.S. 36, 51

124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004). Testimonial hearsay is inadmissible

unless the declarant is unavailable and the defendant was given a prior opportunity

to cross examine. Id. at 68, 124 S. Ct. 1354. Testimonial hearsay cannot be admitted

for the purpose of proving the truth of the matter asserted. Crawford, 541 U.S. at

59, n.9, 124 S. Ct. 1354. Whether an out-of-court statement is testimonial in nature

is a question of law. De La Paz v. State, 273 S.W. 3d 671, 680 (Tex. Crim. App.

2008).


      A party is entitled to waive their Fifth Amendment privilege against self-

incrimination. “Thus if the witness himself elects to waive his privilege, as he may

doubtless do, since the privilege is for his protection and not for the protection of

other parties, and discloses criminal connections, he is not permitted to stop, but

must go on and make full disclosure.” In re Enron Corp. Sec., Derivative & Erisa

Litig., 762 F. Supp. 2d 942, 961 (S.D. Tex. 2010) citing McCarthy v. Arndstein, 262

U.S. 355, 358–59, 43 S.Ct. 562, 67 L.Ed. 1023 (1923) (same), rehearing granted,

263 U.S. 676, 44 S.Ct. 33, 68 L.Ed. 501 (1923), aff'd, 266 U.S. 34, 45 S.Ct. 16, 69

L.Ed. 158 (1924); Rogers v. U.S., 340 U.S. 367, 373–74, 71 S.Ct. 438, 95 L.Ed. 344

(1951) (“Disclosure of a fact waives the privilege as to details”; “[W]here a witness

has voluntarily answered as to materially [in] criminating facts . . . he cannot stop



                                         20
short and refuse further explanation, but must disclose fully what he attempted to

relate.”).


             In this instant case the co-defendant invoked her Fifth Amendment right

not to testify at the Appellant’s trial because her case was then currently on appeal.

(RR Vol. 5 at 29, 101). After invoking her Fifth Amendment right not to testify, the

co-defendant admitted in open court on the witness stand that she had written letters

to the Appellant. (RR Vol. 5 at 31). When asked whether those letters expressed to

the Appellant what her testimony would be at trial, the co-defendant refused to

answer. (RR Vol. 5 at 31).


       Subsequently, when the Appellant testified on his own behalf at trial, the

Appellant attempted to testify as to the contents of one of the letters. The prosecution

objected on the grounds of hearsay, and the objection was sustained. (RR Vol. 5 at

45). The Appellant was seeking to establish that his wife herself had destroyed the

gun that she used to shoot the victim. Id. At the sentencing hearing, the Appellant’s

mother testified that the Appellant’s wife called her and admitted full responsibility

for the shooting. (RR Vol. 6 at 25). Had the Appellant’s wife been instructed to

answer the questions about the contents of the letter sent to the Appellant after the

crime had occurred, there is a substantial likelihood that the Appellant would have

been acquitted.


                                          21
      Since the trial court allowed the Appellant’s wife to testify as to the existence

of the letters and then did not instruct her to answer the questions concerning their

contents, the Appellant’s right to cross examine the witness was violated. This

stripped the Appellant of the ability to present evidence of his strongest defense,

which was that Gini Taylor, the co-defendant willfully and independently shot the

victim without any instruction to do so by the Appellant and then attempted to

destroy the evidence. Both the letters to the defendant and the phone call to his

mother were out-of-court testimonial hearsay statements that should have subjected

the Appellant’s wife to cross-examination. By admitting on the stand that she wrote

letters to the Appellant, she effectively waived her privilege against self-

incrimination. The trial court was therefore required to instruct the witness to answer

as to the contents of all incriminating communications since she revealed the

existence of the communications on the witness stand.


      The trial court by way of not instructing the witness to answer questions after

her waiver of her Fifth Amendment rights, violated the Appellant’s right to

confrontation and also to a fair trial. Furthermore, the court erred in sustaining the

hearsay objection of the State when the Appellant attempted to testify as to the

contents of the letters himself. Since the Appellant was not provided with the right

to confront a witness against him, and was not provided with a fair trial, Appellant’s

sentence should be vacated and a new trial should be granted.

                                          22
                            PRAYER FOR RELIEF



      Based upon the foregoing arguments and legal authority, the Appellant, Devin

Simmons, respectfully requests that this Honorable Court set aside the Sentence

delivered in this cause, remand for a new trial at the punishment phase, and grant

any such other and further relief as this Honorable Court deems just and proper.

      DATED this 22nd day of May, 2015.

                                            Respectfully submitted,

                                            /s/ Robert L. Sirianni, Jr.
                                            Robert L. Sirianni, Jr., Esquire
                                            Texas Bar No. 24086378
                                            Law Office of Robert L. Sirianni, Jr.
                                            201 N. New York Ave. Suite 200
                                            Winter Park, FL 32789
                                            Telephone: (407) 388.1900
                                            Facsimile: (407) 622-1511
                                            Robert@brownstonelaw.com
                                            Counsel for Appellant



                     CERTIFICATE OF COMPLIANCE



      I HEREBY CERTIFY that the foregoing brief complies with the type-volume

limitation of Texas Rule of Appellate Procedure 9.4(i)(1). Further, this brief

complies with the type-face and type-style requirements of Texas Rule of Appellate




                                       23
Procedure 9.4 because this brief has been prepared in a proportionately spaced

typeface using Microsoft Word 2010 in 14-point Times New Roman Font.

                                              /s/ Robert L. Sirianni, Jr.
                                              Robert L. Sirianni, Jr., Esquire

                      CERTIFICATE OF COMPLIANCE

      I HEREBY CERTIFY that the foregoing brief complies with the type-volume

limitation of Texas Rule of Appellate Procedure 9.4(i)(1), the foregoing Initial Brief

was created using Microsoft Word, is 24 pages in length, and contains 5, 349 words,

excluding the caption, cover page, statement regarding oral argument, table of

contents, table of authorities, certificate of service, and certificate of compliance,

and is filed as a PDF text-searchable document. Further, this brief complies with the

type-face and type-style requirements of Texas Rule of Appellate Procedure 9.4

because this brief has been prepared in a proportionately spaced typeface using

Microsoft Word in 14-point Times New Roman Font.

                             CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the foregoing was

furnished via U.S. First Class Mail, this 22nd day of May, 2015, to Terry E. Clark,

Office of the District Attorney, 1201 Huey Road, Belton, Texas 76513-0540.



                                              /s/ Robert L. Sirianni, Jr.
                                              Robert L. Sirianni, Jr., Esquire

                                         24
