                                                                                          ACCEPTED
                                                                                      06-15-00056-CR
                                                                           SIXTH COURT OF APPEALS
                                                                                 TEXARKANA, TEXAS
                                                                                 5/18/2015 3:44:57 PM
                                                                                     DEBBIE AUTREY
                                                                                               CLERK




                                                                     FILED IN
                                    NO. 06-15-00056-CR        6th COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                                              5/18/2015 3:44:57 PM
                      IN THE COURT OF APPEALS                     DEBBIE AUTREY
             FOR THE SIXTH APPELLATE DISTRICT              OF TEXAS   Clerk
                           AT TEXARKANA


                           BILLY MAX COLLINS, Appellant

                                           vs.

                          THE STATE OF TEXAS, Appellee
                       ____________________________________



                       ON APPEAL FROM COUNTY COURT
                           HOPKINS COUNTY, TEXAS


                       ____________________________________

              APPELLEE’S RESPONSE TO APPELLANT’S BRIEF



                       ____________________________________



                                                    DUSTANNA RABE
                                                    Hopkins County Attorney
                                                    State Bar No. 24002332
                                                    128 Jefferson Street Suite B
                                                    Sulphur Springs, Texas 75482



APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                    Page 1
                        IDENTITY OF PARTIES AND COUNSEL


Billy Max Collins                          Pro Se Appellant
TDCJ 1884849
Terrell/R3
1300 FM 655
Rosharon, Texas 77583

Dustanna Rabe                              Hopkins County Attorney
128 Jefferson Street, Suite B              Responding on behalf of Appellee
Sulphur Springs, Texas 75482
(903) 438-4017




APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                      Page 2
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES                                    2

TABLE OF CONTENTS                                      3

INDEX OF AUTHORITIES                                   4

STATEMENT OF THE CASE                                  5

STATEMENT OF FACTS                                     6

ARGUMENT AND AUTHORITIES                               7

CONCLUSION AND PRAYER                                  10

CERTIFICATE OF SERVICE                                 11

CERTIFICATE OF WORD COUNT                              12




APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                   Page 3
                                 INDEX OF AUTHORITIES

Cases:

Battle V. State, 989 S.W.2d 840, 841 (Tex. App. –Texarkana 199, no pet)   7

Brady v. United Sates, 397 U.S. 742, 755 (1970)                           10

Cooper v. State, 45 S.W. 3d, 77, 82 (Tex. Crim. App. 2001)                10

Ex Parte Acosta, 672 S.W.2d 470,472 (Tex. Crim. App. 1984)                9

Ex Parte Easter, 615 S.W 2d 719, 721 (Tex. Crim. App. 1981)               9

Ex Parte Morrow, 952 S.W.3d at 535                                        10

Ex Parte Young, 479 S.W.2d 45, 46 (Tex. Crim. App. 1967)                  8

Jones v. State, 77 S.W.3d 819, 823 n. 15 (Tex. Crim. App. 2002)           7

Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001)                8

Rhodes v. State, 240 S.W.3d 882, 887 (Tex. Crim. App. 2007)               7

Texas Rules:

Texas Code of Criminal Procedure Article 11                               8

Texas Code of Criminal Procedure Article 11.09                            8




APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                       Page 4
                                      NO. 06-15-00056-CR

                         IN THE COURT OF APPEALS
                FOR THE SIXTH APPELLATE DISTRICT OF TEXAS
                              AT TEXARKANA


                             BILLY MAX COLLINS, Appellant

                                                 vs.

                            THE STATE OF TEXAS, Appellee
                         ____________________________________

TO THE HONORABLE COURT OF APPEALS:

               Hopkins County Attorney, Dustanna Rabe, submits this brief on behalf of the

State of Texas in reply to the brief of Appellant.

                                 STATEMENT OF THE CASE

       Billy Max Collins was charged by information in cause number 5629-C with the

misdemeanor offense of driving while intoxicated. On March 16, 1990, Mr. Collins entered a

plea of guilty with the State of Texas and agreed to a sentence of 15 days in the county jail and a

fine of $500.00. On May 9, 2013, Appellant was indicted in cause number F8793 with a charge

of driving while intoxicated third or more in Franklin County, Texas. The indictment included

Mr. Collin’s driving while intoxicated conviction in cause number 5629-C as an essential

element of the case. In September of 2013, a jury in Franklin County found Appellant guilty of

the offense of driving while intoxicated third or more in cause number F-8793.            The jury

assessed Mr. Collins punishment at confinement in the Texas Department of Criminal Justice-

Institutional Division for thirty six (36) years with no fine. Mr. Collins appealed the jury verdict

within the required 30 days; and on May 30, 2014, in cause number 06-13-00214-CR, the Court


APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                                      Page 5
of Appeals, Sixth Appellate District of Texas at Texarkana issued an opinion that modified the

trial court’s judgment as to a fine amount but otherwise affirmed the judgment.

       While incarcerated on the above felony charge, Appellant on February 20, 2015, filed a

“Motion to Void Conviction 5629C” in Hopkins County Court under cause number 5629C. On

March 20, 2015, Hopkins County Judge Robert Newsom reviewed the pleadings and entered an

order denying Mr. Collin’s request to void his conviction. Mr. Collins then filed a “Motion to

Rule on Habeas 11.09” with the county judge on April 6, 2015. Appellant now appeals Judge

Newsom’s order denying his request to void his conviction in 5629C as well as the lower court’s

denial of Mr. Collin’s application for writ of habeas corpus.


                                   STATEMENT OF FACTS


       On March 6, 1990, Billy Max Collins entered a plea of guilty to the misdemeanor charge

of Driving While Intoxicated filed in Cause Number 5629-C. Mr. Collins accepted a plea bargain

offered by then Hopkins County Attorney John Perry and therefore agreed to serve fifteen (15)

days in the Hopkins County Jail and pay a fine of five hundred dollars ($500.00) under the terms

of the plea bargain. At the time of the plea, Mr. Collins signed a document waiving his right to

employ an attorney or to have an attorney appointed to represent him. (See Appellant’s Exhibit

1A) Mr. Collins signed a waiver of jury trial and a statement that his plea of guilty was

voluntary. (See Appellant’s Exhibit 2A). In addition, Appellant signed a document which

specifically stated he understood his statutory and constitutional rights regarding the plea and

that he wished to not only voluntarily waive those rights but he also wanted waive his rights to

file a Motion for New Trial, Motion in Arrest of Judgment, and his right to appeal the conviction.

(See Appellant Exhibit 3A). Finally, Mr. Collins signed a document to waive the ten days



APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                                    Page 6
granted to prepare for trial and asked the court to accept the plea recommendation. (See

Appellant’s Exhibit 4A). County Judge Joe Pogue signed each of the waivers and signed the

judgment sentencing Mr. Collins to the agreed fifteen (15) days in jail and fine of $500.00. All of

the documents were signed on the same date; and all were file-stamped by the county clerk on

March 16, 1990, during the time frame of 4:00 o’clock to 4:01 o’clock p.m.

       Mr. Collins was aware of the plea agreement and in fact admitted to sitting in jail under

the terms of the agreement by stating “I believe I set in jail on 2 different weekends plus the fine

I paid.” (See Appellant’s document entitled “Collins’s Affidavit of Facts Exhibit A”). Appellant

did not challenge his conviction and sentence in cause number 5629C nor did he make any

attempt to file a Motion for New Trial, Motion in Arrest of Judgment, or a Notice of Appeal.

       Mr. Collins alludes to the new case being filed against him in felony court and indicates

the prior misdemeanor conviction was used to enhance the felony to which he is currently

incarcerated.

                             ARGUMENT AND AUTHORITIES


       In order to successfully attack a criminal conviction or sentence resulting from a guilty or

no contest plea, Appellant would have to prove the prior conviction was void. . Rhodes v. State,

240 S.W.3d 882, 887 (Tex. Crim. App. 2007). Since, courts presume judgments to be valid,

Appellant bears the burden of defeating the presumption by a preponderance of the evidence.

Jones v. State, 77 S.W.3d 819, 823 n. 15 (Tex. Crim. App. 2002); Battle V. State, 989 S.W.2d

840, 841 (Tex. App. –Texarkana 199, no pet). There are special rules and procedures which

limit the types of issues a defendant can raise while collaterally challenging a conviction or

sentence resulting from a guilty or no contest plea. Consequently, prior convictions are rarely

found to be void. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001).


APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                                      Page 7
       Appellant is attempting to raise issues as to whether his prior 1990 conviction should be

deemed void by petition for writ of habeas corpus as set forth in Article 11 of the Texas Code of

Criminal Procedure. TEX. CODE CRIM. PROC. Art. 11. However, application of Article 11.09

of the Texas Code of Criminal Procedure which governs the rules regarding misdemeanor

convictions creates some level of confusion. TEX. CODE CRIM. PROC. Art. 11.09. While

Appellant is currently restrained, his incarceration is tied to a felony conviction and not to the

1990 misdemeanor conviction in question. Since more than twenty five years has elapsed since

Appellant served the 15 day sentence, any complaint of unlawful restraint has moved well

beyond the time frame for relief. At a minimum Appellant’s petition should be denied, regardless

of merit to substantive issues, as there is no longer any relief from restraint to be gained in cause

number 5629-C.

       While Article 1.08, Texas Code of Criminal Procedure, provides that “the writ of habeas

corpus is a writ of right and shall never be suspended.” TEX. CODE CRIM. PROC. Art. 1.08, a

writ should at least be filed in a reasonable period of time and any delay in seeking relief can

prejudice the credibility of the applicant’s claim. Ex Parte Young, 479 S.W.2d 45, 46 (Tex. Crim.

App. 1967). The filing of the petition roughly 25 years after the plea was entered under the

circumstances presented is clearly not within reason. Therefore, applicant’s delay in seeking

relief should be denied as both moot and untimely.

       In addition to Appellant’s petition for writ of habeas corpus being moot and untimely, the

Court of appeals should not review the merits of Mr. Collin’s claims since the claims as raised

are not cognizable. Mr. Collin’s claims the conviction is void because he was not represented by

an attorney, there were no cause numbers atop the signed waivers and no prints on the judgment.

Habeas Corpus is available to review jurisdictional defects or denial of fundamental or



APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                                      Page 8
constitutional rights, it is not a proper means for raising statutory violations. Ex Parte Cruzata,

220 S.W.2d 518, 520 (Tex. Crim. App. 2007). Appellant agreed to the plea offer in 5629-C and

signed off on a waiver of attorney, waiver of trial and waiver of his right to appeal. Consequently

those issues cannot be raised in the petition for writ of habeas corpus.

       A challenge to the sufficiency of evidence is not cognizable on habeas corpus; Ex Parte

Easter, 615 S.W 2d 719, 721 (Tex. Crim. App. 1981); nor are allegations that were rejected on

direct appeal. Ex Parte Acosta, 672 S.W.2d 470,472 (Tex. Crim. App. 1984). It should be noted

that this Court of Appeals in cause number 06-13-00214, reviewed the issue of there being no

fingerprints on the judgment in cause number 5629-C and found fingerprints on a judgment were

not required to establish whether or not a conviction existed. The same judgment in question in

this case is the same judgment presented in the felony case. The jury found the judgment in

5629-C to be a valid conviction as did this Court of Appeals by affirming the jury’s decision. In

essence, Appellant is attempting to re-litigate issues under the guise of a writ of habeas corpus

which have already been reviewed in a direct appeal. Again, discussion of these issues are not

cognizable further supporting the premise that Appellant’s petition for writ of habeas corpus

should be denied.

       Mr. Collins claims the conviction is void because his plea to cause number 5629-C was

involuntary. The Court of Appeals has said “most cases of involuntary pleas result from

circumstances that existed outside the record, such as misunderstandings, erroneous information,

impaired judgment, ineffective assistance of counsel, and plea-bargains that were not followed or

turn out to be impossible of performance. Cooper v. State, 45 S.W. 3d, 77, 82 (Tex. Crim. App.

2001). Appellant has not proven by preponderance of evidence that his guilty plea was “induced

by threats, misrepresentations or improper promises. Ex Parte Morrow, 952 S.W.3d at 535



APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                                     Page 9
(citing Brady v. United Sates, 397 U.S. 742, 755 (1970). In reality, the bargained sentence of 15

days in jail was a reasonable plea offer and Appellant had incentive to take the plea offer rather

than risk a longer sentence.

       Overall, nothing has been raised by Appellant to support granting the writ of habeas

corpus. Mr. Collins was charged with driving while intoxicated and voluntarily entered a plea to

the charge. Appellant found the need to challenge the 1990 conviction only when faced with

more serious convictions and longer prison sentences due to continued criminal behavior.

However, “buyer’s remorse” is not grounds for rendering a prior conviction void.




                                 CONCLUSION AND PRAYER



       The County Court did not err in denying Appellant’s “Motion to Void Conviction” in

cause number 5629-C. Further, application for writ of habeas corpus should also be denied as

both pleadings are untimely and frivolous. The Honorable Court of Appeals for the Sixth

Appellate District has already visited some if not all of the issues raised in the current appeal in a

previous appeal filed by Appellant. There is no credibility in Appellant’s timing of filing the

petition and the issues raised in the writ are not cognizable. Further, there are no jurisdictional or

constitutional issues that would merit granting the application for writ of habeas corpus.




APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                                      Page 10
       Appellee prays that Appellant’s attempt to have this Court void the conviction in cause

number 5629-C be denied and that the petition for writ of habeas corpus be denied as the filing is

untimely, frivolous, and without legal merit.



                                                            Respectfully submitted,

                                                            Dustanna Rabe
                                                            Hopkins County Attorney

                                                            By:/s/ Dustanna Rabe
                                                            Hopkins County Attorney
                                                            State Bar No. 24002332
                                                            128 Jefferson Street Suite B
                                                            Sulphur Springs, Texas 75482
                                                            (903) 438-4017
                                                            (903) 438-4016 (fax)



                                 CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the above instrument was forwarded to Pro
Se Appellant Billy Max Collins via certified mail, return receipt requested to TDCJ 1884849,
Terrell/R3,1300 FM 655, Rosharon, Texas 77583.

                                                            /s/ Dustanna Rabe
                                                            Dustanna Rabe




APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                                   Page 11
                             CERTIFICATE OF WORD COUNT

       I certify that this document contains 2192 words.
                                                           /s/ Dustanna Rabe
                                                           Dustanna Rabe




APPELLEE’S RESPONSE TO APPELLANT’S BRIEF                                       Page 12
