                                                                                ACCEPTED
                                                                            06-15-00110-CR
                                                                 SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       9/16/2015 4:57:26 PM
                                                                           DEBBIE AUTREY
                                                                                     CLERK

                    IN THE COURT OF APPEALS
                                                           FILED IN
                     SIXTH DISTRICT OF TEXAS        6th COURT OF APPEALS
                                                      TEXARKANA, TEXAS
                                                    9/17/2015 8:29:00 AM
                       TEXARKANA, TEXAS                 DEBBIE AUTREY
                                                            Clerk
DEREK CLINTON WARD
        Appellant

Vs                                    06-15-00110-CR

THE STATE OF TEXAS
         Appellee



                          ON APPEAL FROM

               THE 124TH JUDICIAL DISTRICT COURT

                      OF GREGG COUNTY, TEXAS

                      TRIAL COURT NO. 42,433-B


                    BRIEF ON BEHALF OF APPELLANT


                                   TIM CONE
                                   State Bar #04660350
                                   P.O. Box 413
                                   Gilmer, Texas 75644
                                   (903) 725-6270
                                   e-mail: timcone6@aol.com

                                   ATTORNEY FOR THE APPELLANT
                                                        2




            IDENTITY OF PARTIES AND COUNSEL



DEREK CLINTON WARD
P.O. BOX 127
MT. ENTERPRIZE, TEXAS 75681
APPELLANT

LANCE LARISON
P.O.BOX 232
LONGVIEW, TEXAS 75606
APPELLANT’S COUNSEL AT TRIAL


CHRIS PARKER, GREGG COUNTY ASST. CRIM. DIST. ATTORNEY
101 E. METHVIN
LONGVIEW, TEXAS 75601
APPELLEE’S COUNSEL AT TRIAL

TIM CONE
P.O. BOX 413
GILMER, TX 75644
APPELLANT’S COUNSEL ON APPEAL


ZAN BROWN
GREGG COUNTY ASSIST. CRIM. DIST. ATTORNEY
101 E. METHVIN
LONGVIEW, TEXAS 75601
APPELLEE’S COUNSEL ON APPEAL
                                                                                  3




                              TABLE OF CONTENTS

                                              Page No.
List of Parties and Counsel…………………………………………….       2

Table of Contents………………………………………………………                                     3

Index of Authorities……………………………………………………                                   4

Statement of the Case………………………………………………….                                  6

Point of Error Number One……………………………………………                                 7,10
      The trial court did not act as a neutral and detached fact finder.

Statement of Facts…………………………………………………….                                    8

Summary of Argument……………………………………………….                                     10

Conclusion and Prayer………………………………………………..                                  12

Certificate of Compliance…………………………………………….                                12

Certificate of Service…………………………………………………                                  13
                                                                        4




                          INDEX OF AUTHORITIES


                                                                 PAGE
CONSTITUTIONS:

14TH Amendment, U.S. Constitution…………………………                      10



STATE CASES:

Dockstader v. State, 233 SW 3d 98 (Tex.App.Houston[14th Dist.]
      2007…………………………………………………….                                  10
Johnson v. State, 452 SW 3d 398 (Tex.App.Amarillo 2014)….        10

STATUTES:

Texas Code of Criminal Procedure, Art. 1.04………………..              10
                                                                                           5




                               NO. 06-15-00110-CR

                                        IN THE

                                COURT OF APPEALS

                                       FOR THE

                      SIXTH JUDICIAL DISTRICT OF TEXAS


                          DEREK CLINTON WARD,
                                         APPELLANT
                                    VS.

                               THE STATE OF TEXAS
                                            APPELLEE




TO THE HONORABLE JUSTICES OF SAID COURT:


      COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,

hereinafter referred to as Appellant, and submits this brief in support of reversing the

judgment and sentence pursuant to the provisions of the Texas Rules of Appellate

Procedure in Cause No. 06-15-00110-CR in the 124th Judicial District Court of Gregg

County, Texas, (Trial Court Cause No. 42,433-B).
                                                                                         6



                           STATEMENT OF THE CASE

      The Appellant was indicted by the Gregg County Grand Jury for the offense of

State Jail Felony Theft on March 28, 2013. CR4. On May 16, 2014, the Appellant

waived his right to a jury trial. 2RR. There was an announcement that the disposition

of the case would an open plea. On July 7, 2014, the case was called and an

announcement was made that the Appellant was going to hire counsel (previous

counsel was court appointed). 3RR3 ( The page numbers for this volume of the

Reporter’s Record are an educated guess as the copy received by counsel did not have

page numbers. However, this volume is very short.) At this hearing, court appointed

counsel advised she was going to file a Motion to Withdraw in the case. 3RR5. With

new counsel, the Appellant entered a guilty plea on April 9, 2015. 4RR4. Again, there

was an indication that the disposition would be an open plea but there was a

statement made by the State that indicated there may be a plea bargain, as well.

4RR5. Nonetheless, the trial court admonished the Appellant regarding the process of

an open plea. 4RR5. On May 21, 2015, the sentencing hearing was held. The process

was that of an open plea as the record indicated the State would recommend

probation as a plea bargain if the Appellant paid restitution on the day of sentencing

but the Appellant failed to do so. 5RR26. The trial court assessed punishment at 22

months confinement in State Jail. The Appellant now brings this appeal to reverse

the sentence assessed.
                                                                                7




      For clarity, THE STATE OF TEXAS will be referred to as “the State”, and

Derek Clinton Ward will be referred to as “Defendant” or “Appellant.”




                               ISSUES PRESENTED


                       POINT OF ERROR NUMBER ONE

      The trial court did not act as a neutral and detached fact finder.
                                                                                         8




                           STATEMENT OF THE FACTS


             Since sufficiency of the evidence is not a point of error, a fairly short

rendition of the facts will suffice. Further, the record is not long or particularly

complicated. The Appellant was employed by the victim in the case. Although there

was a suspicion on the part of the employer that the Appellant had abused the

company credit card, no such allegation was alleged or proven.5RR5. Nevertheless,

the employer decided the Appellant had abused the credit card privilege and withheld

the Appellant’s last paycheck as a result of his belief-a belief that was either untrue or

there was insufficient evidence to prove the belief.5RR11,12. The Appellant felt he

was being treated unfairly by the employer withholding his earned paycheck and he

took a welding machine and attached cables belonging to the business and pawned

them.5RR21,23; State’s Exhibit 2. Thus, the allegation in the indictment of theft. The

Appellant admitted his guilt in the theft.5RR23.

      Some of the process in resolving the case was stated in the previous section of

this brief and will not be needlessly repeated here. Apparently, there was an

agreement that the State would recommend a probation if the Appellant paid full

restitution on the date of sentencing but if he did not so pay, the sentencing would

proceed as an open plea and the trial court would set the punishment without a plea

bargain.4RR5;5RR26,27,39. On the day of sentencing, the Appellant did not have the
                                                                                           9


full restitution.5RR27. The value of the welding machine was apparently either

$3500 or $3750 and the Appellant came to sentencing with $1000 (his mother’s

money).5RR23;CR28;State’s Exhibit 2.. The Appellant explained, in testimony, that

he gotten laid off and had no income.5RR14. He also testified his unemployment

income was to begin soon.5RR15 He also testified he had undergone 4 spinal

surgeries, had a rod in his back and that he was in a great deal of pain.5RR16,17. He

also testified he was not working to let his back heal better.5RR16,28. This matter

had been explained to the officer who prepared the Presentence Investigation Report

submitted to the trial court.5RR16,17. The trial court took the role of interrogation at

the hearing by asking the Appellant when he had last worked in the oil field and

accused the Appellant of taking a vacation for a month and a half instead of trying to

get the restitution.5RR28-30. When sentencing the Appellant to 22 months

confinement, the trial court told the Appellant that he should have gotten any job-

even flipping burgers at McDonald’s-to get the restitution and again suggesting the

Appellant had simply taken a vacation instead of working on the

restitution.5RR40,41. The trial court added that he would be unlikely to approve the

20% reduction in sentence that is allowed by law for State Jail sentences.5RR41.
                                                                                          10




                        SUMMARY OF THE ARGUMENT

      While this case is somewhat unusual in that there was a plea bargain for

probation if the Appellant paid full restitution up front but no plea bargain if he did

not pay, all parties apparently agreed to this disposition so a suggestion that the

proposal was inappropriate would be useless. However, the error in the case took

place at sentencing. The trial court seemed to take on the role of prosecutor and

abandoned his role a neutral and detached fact finder, which is the appropriate role

under Due Process and Due Course of Law.



                        POINT OF ERROR NUMBER ONE

      The trial court did not act as a neutral and detached fact finder.

                                     ARGUMENT

      The Due Process Clause of the 14th Amendment to the U.S. Constitution and

the concept of Due Course of Law as set out in the Texas Code of Criminal

Procedure, Art. 1.04 require that an accused is due the judgment of a neutral and

detached fact finder at trial and throughout the judicial process. This concept is

fundamental the concept of criminal justice in the United States and, specifically,

Texas. Dockstader v. State, 233 S.W.3d 98 (Tex.App-Houston[14thDist.] 2007) and

Johnson v. State, 452 S.W.3d 398 (Tex.App. Amarillo 2014). Appellant’s attorney
                                                                                           11


could cite numerous other case and authorities for this proposition but the concept is

so well established that it is not necessary. The question here is whether the trial court

stepped out of that role in the case at bar and lost that quality of neutrality and

detachment. While Appellant’s counsel has very high regard for this trial judge and

has often seen this trial court judge perform this sometimes difficult task of neutrality

and detachment at the highest level, in the case at bar the trial court failed to do so.

The basic deal in the case at bar was that if the Appellant paid full restitution of

$3750 at sentencing, he would receive a probation but, if not, the plea would proceed

as an open plea and the full range of punishment would be open to the trial court. The

evidence at the sentencing hearing clearly showed the Appellant had limited financial

resources in that he had 4 back surgeries, a rod in his back and was in constant pain.

Yet, through the questioning by the trial court, it was clear the trial court believed the

Appellant was malingering. The record does not reflect malingering. The suggestion

by the trial court that the Appellant was taking a vacation under the physical

condition suffered by the Appellant shows the lack of neutrality and appropriate

detachment. The suggestion by the trial court that the Appellant would be unlikely to

receive the 20% time reduction that is available to State Jail offenders further shows

the trial court lost those essential qualities of neutrality and detachment. The only

proper resolution in the case at bar is to reverse the sentence of the trial court and

remand the case for a new punishment hearing.
                                                                                        12



                         CONCLUSION AND PRAYER


      For the reasons herein alleged, the sentence of the trial court should be reversed

and remanded for a new punishment hearing.

                                               Respectfully submitted,


                                               /s/Tim Cone
                                               ____________________
                                               TIM CONE
                                               Attorney At Law
                                               P.O. Box 413
                                               Gilmer, Texas 75644
                                               e-mail: timcone6@aol.com
                                               ATTORNEY FOR APPELLANT

                        CERTIFICATE OF COMPLIANCE

       I certify that the foregoing document complies with Texas Rules of Appellate
Procedure, Rule 9 regarding length of documents, in that exclusive of caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix, it consists of 1775 words.



                                               /s/Tim Cone
                                               ______________________

                                               TIM CONE
                                               ATTORNEY FOR APPELLANT
                                                                                       13




                           CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing Appellant’s Brief
has been provided to the Honorable Zan Brown, Gregg County Assistant Criminal
District Attorney on September 16, 2015.

                                              /s/Tim Cone
                                              _____________________________
                                              TIM CONE
                                              Attorney At Law
