                                                                     ACCEPTED
                                                                 12-15-00195-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                          11/30/2015 12:00:00 AM
                                                                       Pam Estes
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-15-00195-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    11/28/2015 5:41:54 PM
                 12TH JUDICIAL DISTRICT          PAM ESTES
                                                   Clerk
                       TYLER, TEXAS




                    STEVEN MOORE,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




       ON APPEAL IN CAUSE NUMBER 007-0446-15
        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:
    Steven Moore

APPELLANT’S TRIAL COUNSEL:
    O.W. Loyd
    1507 Frost Street
    Gilmer, Texas 75644
    903-843-9469

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
    Morgan Biggs
    Brent Ratekin
    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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

       Issue One: 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 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
       course of law under the Texas Constitution.


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

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

       A. The Law Requires a Neutral Tribunal. . . . . . . . . . . . . . . . . . . . 4
       B. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
       C. Structural Error Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
                                                  iii
       D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . . 7

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                               iv
                                TABLE OF AUTHORITIES
CONSTITUTIONS
U.S. CONST. Amend. XIV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
TEX. CONST. art. I, §19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


STATUTES
TEX. PENAL CODE ANN. § 12.42(d) (West 2014). . . . . . . . . . . . . . . . . . . . 3
TEX. HEALTH AND SAFETY CODE ANN. §481.112 (West 2014).. . . . . . . 1, 3


CASES
Arizona v. Fulminante, 4449 U.S. 279, 111 S. Ct. 1246,
    113 L.Ed.2d 302 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005). . . . . . . . . . . . 5
Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006). . . . . . . . . . . . 5
Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.2d (1973). . 5
Lagrone v. State, 84 Tex. Crim. 609, 209 S.W. 411 (1919). . . . . . . . . . . 5
McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983). . . . . . . . . . 6
Texeira v. State, 89 S.W.3d 190 (Tex. App. – Texarkana
    2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


RULES
TEX. R. APP. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                     v
                                 NO. 12-15-00195-CR

STEVEN MOORE                                  ,§   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:

       Steven Moore (“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 first degree felony offense of

possession with intent to deliver a controlled substance, cocaine, in an

amount of between four and two hundred grams. I CR 4.1 TEX. HEALTH
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
AND   SAFETY CODE ANN. §481.12(a) and (d) (West 2014). Prior to jury

selection, Mr. Moore entered a plea of guilty without an agreement to the

indictment, and true pleas to the enhancements. I CR 43 and 46, III RR

54, 55 and 64.2 Following evidence and argument of counsel at a later

hearing, the trial court imposed a thirty-five year sentence. I CR 59; IV

RR 20. Notice of appeal was timely filed on August 6, 2015. I CR 66.

This brief is timely filed on or before November 30, 2015.




                                ISSUES PRESENTED

Issue One: 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 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 course of law under the Texas
Constitution.




2
 References to the Reporter’s Record are made using “RR” with a roman numeral preceding
“RR” indicating the correct volume and an arabic number following specifying the correct page.
                                               2
                    STATEMENT OF THE FACTS

     The case involves possession of cocaine with intent to distribute. I

CR 4; TEX. HEALTH AND SAFETY CODE §§ 481.112(a) and (d) (West 2014).

This first degree felony was enhanced to a habitual offense by the

inclusion of two previous sequential felony convictions. I CR 4. TEX.

PENAL CODE ANN. §12.42(d) (West 2014). Prior to the selection of a jury,

and on the day of trial, Mr. Moore entered a plea of guilty without an

agreement to the offense as alleged including the enhancement

paragraphs.   I CR 43; III RR 54.       Following the admission of the

stipulation, the trial court found Mr. Moore guilty of the offense, the

enhancement paragraphs true and recessed for a later punishment

hearing. III RR 73. Following evidence and argument of counsel, the

court sentenced Mr. Moore to thirty-five years confinement, no fine and

court costs were assessed. IV RR 20; I CR 59-60.

     Counsel has reviewed the record in the case thoroughly, and

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

included in the argument section of this brief.



                                    3
                      SUMMARY OF ARGUMENT

      By finding Mr. Moore guilty of the offense with only the stipulation

of evidence before him, the trial court necessarily foreclosed any option,

even a remote one, of allowing the finding of guilt be deferred. This

prevented even the opportunity to seek a possible resolution in the case.




                               ARGUMENT



Issue One, 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 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 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

                                      4
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);

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.
                                      5
2005); McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983).


                      B. Application to These Facts

      Mr. Moore entered his plea of guilty, the stipulation of evidence and

was almost immediately found guilty by the trial court prior to any

evidence regarding punishment in the case. While the trial court knew

the state had alleged prior convictions, the court, at that point in time, did

not know if there might be some set of circumstances which would make

the appropriate resolution in the case being to defer a finding of guilt and

allow Mr. Moore the opportunity to prove himself to the court. I CR 4, 15-

16. While that possibility is remote for a habitual offender, the law still

allows a deferral of guilt to occur in this case.

      The State may argue that because of the motion to suppress, and a

lengthy discussion of the facts and a review of video evidence prior to the

entry of the plea, the trial court had enough information to make this

determination. III RR 4-48. However, that only concerned the actions on

the day alleged in the indictment, and the court would not have been

aware of any other circumstances in Mr. Moore’s life which might affect

a sentencing decision.


                                      6
                       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.

     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.




                    D. Remedy and Relief Requested

     The judgment of conviction should be reversed and the case

remanded to the trial court, the trial court should be recused and a

neutral magistrate should hear the revocation proceedings or assess

sentence.


                                      7
                           PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

pays that the trial court’s judgment be reversed in accordance with the

first and second 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
jhugglerlaw@sbcglobal.net

ATTORNEY FOR APPELLANT




                                   8
                        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 or electronic filing on

this the 28th day of November, 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 1, 906 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.


                                      9
