                                                                     ACCEPTED
                                                                 12-15-00007-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                           6/10/2015 10:20:10 PM
                                                                   CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-15-00007-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    6/10/2015 10:20:10 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS




                CHRISTOPHER THURMAN,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




       ON APPEAL IN CAUSE NUMBER 007-1224-14
        FROM THE 7TH JUDICIAL DISTRICT COURT
              OF SMITH COUNTY, TEXAS
     HONORABLE KERRY RUSSELL, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Christopher Thurman

APPELLANT’S TRIAL COUNSEL:
    John Jarvis
    326 South Fannin
    Tyler, Texas 75702
    903-592-6576

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Bryan Jiral
    Jeff Wood
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)
                                 ii
                                 TABLE OF CONTENTS
                                                                                             PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

       Issue One: The evidence regarding intentional or knowing
       possession of a firearm was legally insufficient to support the
       verdict.

       Issue Two: By entering a finding of guilt, prior to receiving any
       evidence as to punishment, the trial court foreclosed deferred
       adjudication as a possible sentence violating his right to due
       process of law under the United States Constitution.

       Issue Three: By entering a finding of guilt, prior to receiving any
       evidence as to punishment, the trial court foreclosed deferred
       adjudication as a possible sentence violating his right to due
       course of law under the Texas Constitution.


STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

       A. Standard of Review on Sufficiency. . . . . . . . . . . . . . . . . . . . . . . 7
                                                  iii
       B. Law Regarding Possession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
       C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
       D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ISSUE THREE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

       A. The Law Requires a Neutral Tribunal. . . . . . . . . . . . . . . . . . .                  14
       B. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . .         15
       C. Structural Error Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . .        17
       D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . .             18

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19




                                                  iv
                               TABLE OF AUTHORITIES
CONSTITUTIONS
U.S. CONST. Amend. XIV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TEX. CONST. art. I, §19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


STATUTES
TEX. PENAL CODE ANN. § 2.01 (West 2012).. . . . . . . . . . . . . . . . . . . . . . . 8
TEX. PENAL CODE ANN. § 12.42(a) (West 2012). . . . . . . . . . . . . . . . . . . . 2
Tex. Penal Code Ann. §46.04(a)(1) (West 2012). . . . . . . . . . . . . . . . . . . . 1


CASES
Arizona v. Fulminante, 4449 U.S. 279, 111 S. Ct. 1246,
    113 L.Ed.2d 302 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Bollinger v. State, 224 S.W.3d 768 (Tex. App. –
    Eastland 2007, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).. . . . . . . . . . . . 7
Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005). . . . . . . . 14, 15
Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995). . . . . . . . . . . . . 9
Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006). . . . . . . . 14, 15
Corpus v. State, 30 S.W.3d 35 (Tex. App. – Houston
    [14th Dist.] 2000, pet. ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12
Davis v. State, 93 S.W.3d 664 (Tex. App. –
    Texarkana 2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.2d (1973). 14
Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. – Houston
    [1st Dist.] 1994, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 13
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
                                                 v
     61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993). . . . . . . . . 7, 8
Jones v. State, 963 S.W.2d 826 (Tex. App. – Texarkana
    1998, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Lagrone v. State, 84 Tex. Crim. 609, 209 S.W. 411 (1919). . . . . . . . . . 15
McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983). . . . . . . . . 15
Porter v. State, 873 S.W.2d 729 (Tex. App. – Dallas 1994, pet. ref’d).. . 9
Texeira v. State, 89 S.W.3d 190 (Tex. App. – Texarkana
    2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218,
    72 L. Ed. 2d 652 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Wallace v. State, 932 S.W.2d 519 (Tex. App. – Tyler 1995, pet. ref’d). . 9


RULES
TEX. R. APP. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                    vi
                                 NO. 12-15-00007-CR

CHRISTOPHER THURMAN                           ,§   IN THE COURT OF APPEALS
APPELLANT                                      §
                                               §
VS.                                            §   12TH JUDICIAL DISTRICT
                                               §
THE STATE OF TEXAS,                            §
APPELLEE                                       §   TYLER, TEXAS


                                APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS
AND THE JUSTICES THEREOF:

       Christopher Thurman (“Appellant”), by and through his attorney of

record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC.38, et seq., respectfully submits this brief on appeal.




                           STATEMENT OF THE CASE

       Appellant was indicted for the felony offense of unlawful possession

of a firearm by a felon.          I CR 4.1 TEX. PENAL CODE ANN. §46.04(a)(1)


1

References to the Clerk’s Record are designated “CR” with a roman numeral preceding CR
specifying the correct volume and an arabic numeral following “CR” specifying the correct page
in the record.



                                               1
(West 2012). The punishment range for this offense was enhanced to a

second degree felony range with the inclusion of one prior felony offenses.

I CR 4. TEX. PENAL CODE ANN. §12.42(a) (West 2012).

       On June 27, 2012, the trial court began a bench trial in the case on

the issue of guilt. V RR 48.2 Following the conclusion of evidence, the

court found Mr. Thurman guilty of the offense. V RR 130.

       After hearing the punishment phase testimony, the court found the

enhancement paragraphs to be true, and sentenced Appellant to 15 years’

confinement in the Texas Department of Criminal Justice, Institutional

Division. I CR 74-75; VI RR 39.

       Notice of appeal was timely filed on January 12, 2015. I CR 57.

This brief is timely filed on or before June 10, 2015.




2
 References to the Reporter’s Record are made with the notation “RR” with a roman numeral
preceding RR indicating the correct volume and an arabic numeral following specifying the
correct page.
                                              2
                         ISSUES PRESENTED

Issue One: The evidence regarding intentional or knowing possession of
a firearm was legally insufficient to support the verdict.

Issue Two: By entering a finding of guilt, prior to receiving any evidence
as to punishment, the trial court foreclosed deferred adjudication as a
possible sentence violating his right to due process of law under the
United States Constitution.

Issue Three: By entering a finding of guilt, prior to receiving any
evidence as to punishment, the trial court foreclosed deferred
adjudication as a possible sentence violating his right to due course of
law under the Texas Constitution.



                    STATEMENT OF THE FACTS

     This case involved a bench trial for an indictment alleging possession

of a firearm by a convicted felon. I CR 4. Witnesses were called who

established that Mr. Thurman had a previous felony conviction and that

he was on parole on the date alleged in the indictment. V RR 53, 56. The

possession was alleged to have occurred in Tyler, Smith County at the

Town House Motel. V RR 59-60.

     For the primary element, intentional or knowing possession, the

State called four Tyler police officers. Adam Colby responded as a back-up

officer and knew that he was dispatched to a theft complaint. V RR 59.
                                    3
The primary suspect was Brittani Stone who had stolen credit cards,

checkbooks and prescription drugs and that she was in a room at the

Town House Motel. V RR 59-60. Officer Colby determined that Ms. Stone

was wanted for felony charges in both Smith and Gregg Counties. V RR

60. While Officer Colby was speaking with the complainant in the theft

case, Ms. Stone came out of a hotel room, made eye contact with and was

recognized by the officer from previous book-in photographs and went

back inside the room. V RR 60-61. Colby and Officer Hill, who did not

testify, knocked on the door and Mr. Thurman answered and gave

permission for the officers to “go and get her.” V RR 62. Ms. Stone gave

a false name, and Colby saw a credit card with the complainant’s name on

it in the room. V RR 63.

     Colby contacted a detective to seek a search warrant was obtained

for the stolen property. V RR 64. During that process, Mr. Thurman gave

written and verbal consent for the officers to search the room and his car

for stolen property. V RR 64-66. During the search for stolen property,

Office Colby and at least one other officer searched the room and Colby

saw bullets and was concerned about a firearm being involved that had

                                    4
not yet been found. V RR 71. Both Mr. Thurman and Ms. Stone were

searched again and no firearm was located. V RR 72. No firearm was

found in Mr. Thurman’s car. V RR 72.

     Two other officers then searched the room again and found a

firearm, specifically a .38 caliber revolver with pink grips. V RR 73. Mr.

Thurman denied ownership, and Ms. Stone invoked her right to remain

silent. V RR 73. Now officers sought a different warrant using a narcotics

detective. V RR 74. Mr. Thurman was allowed to leave. V RR 74. Ms.

Stone was charged with being a felon in possession of a firearm. V RR 76-

77, 79.

     Counsel has reviewed the record in the case thoroughly, and

presents three issues. A discussion of relevant facts for those issues is

included in the argument section of this brief.




                                    5
                     SUMMARY OF ARGUMENT

     The issues for this Court to consider are first, whether the evidence

was legally sufficient to establish that Mr. Thurman intentionally or

knowingly possessed the firearm and second, whether the court violated

his rights to due process and due course of law by immediately finding

him guilty of the offense. The evidence is clear that an officer located a

pink handled revolver in a hotel room shared by Mr. Thurman by an

indicted co-defendant Ms. Brittani Stone. However, the record establishes

that Mr. Thurman was released by officers that evening because they

were looking for Ms. Stone on felony warrants and had not located the

firearm by that time. The revolver was found under a mattress in a hotel

room only after repeated searches of the room. The State failed to prove

intentional or knowing possession.

     The second and third issue raised relate to the trial court’s finding

Mr. Thurman guilty of the offense almost immediately following the

conclusion of evidence, thus making Mr. Thurman ineligible to receive

deferred adjudication.    Deferred adjudication exists as a possible

punishment for this offense, by eliminating that as an option, the trial

                                     6
court violated Mr. Thurman’s right to due process and due course of law.




                             ARGUMENT

Issue One, Restated: The evidence regarding intentional or knowing
possession of a firearm was legally insufficient to support the verdict.

     This was a case about possession. While it was undisputed that a

firearm was located in the room occupied by Mr. Thurman and Ms. Stone,

the State failed to prove that Mr. Thurman intentionally or knowingly

possessed the firearm.



                 A. Standard of Review on Sufficiency

     Appellant contends that the evidence is legally      insufficient to

support the verdict. The standard for reviewing a legal sufficiency

challenge is whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson

v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d

560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993); and Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App.

                                    7
2010)(plurality op.). The evidence is examined in the light most favorable

to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson,

871 S.W.2d at 186. A successful legal sufficiency challenge will result in

rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457

U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).



                      B. Law Regarding Possession

     In order to convict a person an of offense, the State must prove every

element of the offense beyond a reasonable doubt. TEX. PENAL CODE ANN.

§2.01 (West 2011). To prove that a defendant committed the offense of

possession of a firearm, the State is required to prove that the defendant

(1) exercised actual care, control or custody of the firearm, (2) he was

conscious of his connection with it, and (3) that he knowingly or

intentionally possessed the firearm. Davis v. State, 93 S.W.3d 664, 667

(Tex. App. – Texarkana 2002, pet. ref’d).

     Because an accused must not only have exercised actual care,

control, or custody of the firearm, but must also have been conscious of his

connection with it and have known what it was, evidence which

affirmatively links him to it suffices for proof that he possessed it
                                     8
knowingly. Mr. Thurman recognizes this can be met by the State through

either direct or circumstantial evidence, but it must be more than a

fortuitous connection. Bollinger v. State, 224 S.W.3d 768, 774 (Tex. App.

– Eastland 2007, pet. ref’d), citing Brown v. State, 911 S.W.2d 744, 747

(Tex. Crim. App. 1995).

     When the firearm is not found on the accused’s person or is not in his

exclusive possession, additional facts must affirmatively link the accused

to the firearm.    Jones v. State, 963 S.W.2d 826, 830 (Tex. App. –

Texarkana 1998, pet. ref’d). While no set formula of facts exist that would

dictate a finding of affirmative links sufficient to support an inference of

knowing possession of contraband. Porter v. State, 873 S.W.2d 729, 732

(Tex. App. – Dallas 1994, pet. ref’d). The number of links if less important

than the “logical force” or degree to which the links, alone or in

combination, tend to affirmatively link the accused to the contraband.

Wallace v. State, 932 S.W.2d 519, 524 (Tex. App. – Tyler 1995, pet. ref’d).

Factors that specifically link a defendant to a firearm include: (1) whether

the firearm was in a car driven by the accused; (2) whether the firearms

were in a place owned by the accused; (3) whether the firearms were

conveniently accessible to the accused; (4) whether the firearms were
                                     9
found in an enclosed space; and (5) whether the accused made any

affirmative statement connecting him to the firearm. Corpus v. State, 30

S.W.3d 35, 38 (Tex. App. – Houston [14th Dist.] 2000, pet. ref’d).

     The analysis is similar to proving possession of narcotics. Factors

that may establish an affirmative link for narcotics include whether (1)

the contraband was in plain view; (2) the contraband was conveniently

accessible to the accused; (3) the accused was the owner of the place where

the contraband was found; (4) the accused was the driver of the

automobile in which the contraband was found; (5) the contraband was

found on the same side of the car seat as the accused was sitting; (6) the

place where the contraband was found was enclosed; (7) the odor of the

contraband was present; (8) paraphernalia to use the contraband was in

view of or found on the accused; (9) conduct by the accused indicated a

consciousness of guilt; (10) the accused has a special connection to the

contraband; (11) occupants of the automobile gave conflicting statements

about relevant matters; (12) the physical condition of the accused

indicated recent consumption of the contraband found in the car; and (13)

affirmative statements connecting the accused to the contraband. Gilbert

v. State, 874 S.W.2d 290, 298 (Tex. App. – Houston [1st Dist.] 1994, pet.
                                    10
ref’d).



                      C. Application to These Facts

      The firearm in this case was located during the third search of the

room by officers. V RR 92. It was located under the mattress of the bed

in the room. V RR 95. Ms. Stone claimed ownership of the safe which

contained the same ammunition as the firearm. V RR 82, 98. It appeared

to the officer that the room was occupied by a woman. V RR 102.

      Ms. Stone was charged that evening with being a felon in possession

of the firearm, possession of narcotics and offenses related to the theft, as

well as to the two initial warrants. Those charges were all pending when

she invoked her right to remain silent during the first phase of trial. V

RR 118-120. During the sentencing phase, Ms. Stone also invoked her

right to remain silent. VI RR 8-9. By that time, the charges related to her

conduct on July 13, 2014 had been resolved, but there was still an unfiled

misdemeanor charge of failure to identify that the State would not grant

immunity. VI RR 8, 17. The trial court took judicial notice of Ms. Stone’s

felony charges in Smith County which included an unlawful possession of

a firearm which was dismissed under §12.45; a felony possession of a
                                     11
controlled substance and a felony theft both of which were negotiated for

12 month sentences.

     Of the Corpus factors, three do not apply in this case. The firearm

was not found in a car; was not found in a place owned by Mr. Thurston;

and he made no statement linking him to the firearm. Corpus, 30 S.W.3d

at 38. The firearm was found in an enclosed space, but that is the only

factor free from debate. Whether the firearm was conveniently accessible

is debatable since it took multiple officers multiple searches to locate the

firearm.

     Similarly, many of the Gilbert factors do not apply to these facts.

This contact occurred outside an automobile, so the fourth and fifth factors

do not apply. This was a possession of a firearm, not marijuana case so

the seventh factor does not apply. The contraband was not found in an

enclosed area, so the sixth factor does not apply.

     Several of the factors weigh against Appellant. The contraband was

found in a location accessible to Mr. Thurman, although as noted above

not necessarily convenient (Factor 2). In this case, it is undisputed that

the firearm was under a mattress not in plain view and not found during

the first or second search of the hotel room.
                                     12
      Several of the Gilbert factors are clearly in Mr. Thurman’s favor.

There was no conduct evidencing consciousness of guilt. There was no

special connection to the firearm, in fact it might be seen as unusual for

a man to possess a pink firearm. Ms. Stone had as many, if not more links

to the firearm and was also charged for possession of a firearm by a felon.

There were no affirmative statements connecting Mr. Thurman to the

contraband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. – Houston

[1st Dist.] 1994, pet. ref’d).



                                 D. Conclusion

      The only connection between Mr. Thurman and the firearm was that

he was one of two occupants of the room. The firearm was not found on

the first or even second search of the room, and Mr. Thurman was

cooperative about letting officers inside the room to apprehend Ms. Stone

and then search for stolen property in the possession of Ms. Stone. The

connection between Mr. Thurman and the firearm was fortuitous, and

legally insufficient.   When viewed in totality, the evidence was legally

insufficient to prove that Mr. Thurman intentionally or knowingly

possessed the firearm in this case. The proper remedy is for this Court to
                                      13
reverse and render on this issue.



Issue Two, Restated: By entering a finding of guilt, prior to receiving any
evidence as to punishment, the trial court foreclosed deferred
adjudication as a possible sentence violating his right to due process of
law under the United States Constitution.

Issue Three, Restated: By entering a finding of guilt, prior to receiving
any evidence as to punishment, the trial court foreclosed deferred
adjudication as a possible sentence violating his right to due course of
law under the Texas Constitution.


              A. The Law Requires a Neutral Tribunal
      The Fourteenth Amendment provides that the state may not

“deprive any person of life, liberty, or property, without due process of law.

U.S. CONST. Amend. XIV. No citizen of this State shall be deprived of life,

liberty, property, privileges or immunities, or in any manner

disenfranchised, except by the due course of the law of the land. TEX.

CONST. art. I, §19. Due process requires that the trial court conduct itself

in a neutral and detached manner. Gagnon v. Scarpelli, 411 U.S. 778,

786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d (1973); Brumit v. State, 206 S.W.3d

639, 645 (Tex. Crim. App. 2006). A trial court’s arbitrary refusal to

consider the entire range of punishment in a particular case violates due

process. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005);
                                      14
Brumit at 645.

     The law contemplates that the trial judge shall maintain an attitude

of impartiality throughout the trial. Lagrone v. State, 84 Tex. Crim. 609,

209 S.W. 411, 415 (1919). A court denies due process and due course of

law if it arbitrarily refuses to consider the entire range of punishment for

an offense or refuses to consider the evidence and imposes a

predetermined punishment. Teixeira v. State, 89 S.W.3d 190, 192 (Tex.

App. – Texarkana 2002, pet. ref’d).

     A court denies due process and due course of law if it arbitrarily

refuses to consider the entire range of punishment for an offense or

refuses to consider the evidence and imposes a predetermined

punishment. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App.

2005); McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983).


                      B. Application to These Facts

     Given the evidence offered at the sentencing phase of trial, there

existed the possibility that Mr. Thurman might have been a suitable

candidate for deferred adjudication. This included the fact that since his

release from prison, he cared for his uncle following a stroke; (VI RR 24-


                                      15
25) that he is now married (VI RR 25, 29); that he had been compliant

with parole (VI RR 29-30); that he was due to be discharged from parole

on July 3, 2015 (VI RR 56). Against those facts were his criminal history,

which was not insignificant. It is entirely possible that a detached and

neutral magistrate, who had not found a defendant guilty immediately

after the evidence would have been able to consider that as a possible

alternative to confinement. However, because of the finding of guilt, the

court was not able to consider deferring guilt and placing Mr. Thurman

under terms and conditions of supervision.

     This error was emphasized when the trial court stated:

          “I used to give a lot of announcement as to how I make my
     rulings, but the appellate courts have told me that it should be just
     a matter of like a jury. You make a ruling and go on, so I’m not
     going to give much.” V RR 128, line 22 - 129, line 1.


     The trial court appears to be referring to cases where this Court

questioned the trial court’s comments as to acting as a jury would in

assessing punishment in either an open plea or revocation situation.

While the comment in this record in and of itself appears innocuous, given

the history of the prior cases, it can be concluded that the trial court does

not understand the previous rulings of this Court or its own role in

                                     16
sentencing proceedings.



                        C. Structural Error Analysis

       These errors in conjunction constitute structural error and need not

be preserved by contemporaneous objection and require a reversal of these

judgments. Structural error affects the conduct of the trial and is not

subject to a harm analysis. Arizona v. Fulminante, 449 U.S. 279, 309-310,

111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural error has been found

in the deprivation of the right to an impartial judge. Id. This is structural

error because the court immediately found Mr. Thurman guilty of the

offense almost immediately after the conclusion of the evidence. V RR

130.

       It is anticipated that the State will object to these two points of error

by arguing that there were no timely objections to the trial court’s

comments. However, that analysis side-steps the issue of whether or not

this is structural error. If it is structural error as Appellant contends, no

contemporaneous objection is necessary.




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                    D. Remedy and Relief Requested

     The judgment of conviction should be reversed and the case

remanded to the trial court.




                          PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

pays that the trial court’s judgment be reversed and rendered in

accordance with the first issue, or that, in the alternative, the judgment

of the trial court be reversed and remanded in accordance with the second

and third issues.



Respectfully submitted,


 /s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax

ATTORNEY FOR APPELLANT


                                    18
                        CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by regular mail on this the 10th day of

June, 2015.



 /s/ James Huggler
James W. Huggler, Jr.


Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702



                     CERTIFICATE OF COMPLIANCE

       I certify that in compliance with TEX. R. APP. P. 9.4, this document

contains 4,194 words as calculated by Corel WordPerfect version X5 using

14 point Century font and complies with the other requirement of Rule

9.4.



 /s/ James Huggler
James W. Huggler, Jr.

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