                                                                                          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
                                             wramsay@hopkinscountytx.com

                                             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
                                             wramsay@hopkinscountytx.com




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
                                              willramsay@hopkinscountytx.com

                                              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
