                                                                     ACCEPTED
                                                                 12-15-00195-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                           12/30/2015 2:33:11 PM
                                                                       Pam Estes
                                                                          CLERK

      CAUSE NO. 12-15-00195-CR

                  IN THE                        FILED IN
                                         12th COURT OF APPEALS
                                              TYLER, TEXAS
 THE 12th DISTRICT COURT OF      APPEALS 12/30/2015 2:33:11 PM
                                                PAM ESTES
                                                  Clerk
                FOR THE

            STATE OF TEXAS


            STEVEN MOORE,

                         APPELLANT
                    V.

         THE STATE OF TEXAS,

                         APPELLEE


STATE’S REPLY TO APPELLANT’S BRIEF


          D. MATT BINGHAM
         Criminal District Attorney
           Smith County, Texas

            MICHAEL J. WEST
    Assistant Crimina1 District Attorney
        State Bar I.D. No. 21203300
         Smith County Courthouse
              100 N. Broadway
             Tyler, Texas 75702
            ph: (903) 590-1720
            fax: (903) 590-1719
         mwest@smith-county.com

     ORAL ARGUMENT NOT REQUESTED
                                             TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           iii

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

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REPLY TO APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     2

COUNTERPOINTS ONE-TWO: Appellant has failed to properly
preserve his Points of Error by objecting. Alternatively, there
was no abuse of the trial court's discretion in not acknowledging
the possibility of a deferred adjudication where Appellant pled
"true" to the enhancement paragraphs and was also a parole violator
at the time of his pleas in this case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                            ii
                                            INDEX OF AUTHORITIES
STATUTE/RULES                                                                                                      P AGE

TEX. CODE CRIM. P ROC. ANN. (Vernon 2015)

Art. 42.12, Sec. 5 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         5

TEX. P ENAL CODE ANN. (Vernon 2015)

§ 12.42(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   4

TEX. R. APP. P ROC. (Vernon 2015)

Rule 33.1 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    3, 4
Rule 38.1 (I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    4

F EDERAL CASES                                                                                                     P AGE

Johnson v. U.S., 520 U.S. 461, 117 S. Ct. 1544,
L. Ed. 2d 718 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         4

STATE CASES                                                                                                        P AGE

Carrillo v. State, 98 S.W.3d 789
(Tex.App. - Amarillo 2003, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   4

Cole v. State, 931 S.W.2d 578
(Tex.App. - Dallas 1995, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

Flournoy v. State, 589 S.W.2d 705
(Tex.Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            6

Garrett v. State, 377 S.W.3d 697
(Tex.Crim.App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           5

McClenan v. State, 661 S.W.2d 108
(Tex.Crim.App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           6, 7

                                                             iii
STATE CASES (CONT)                                                                                         P AGE

Seifried v. State, No. 11-10-00006-CR, 2011 Tex.App. LEXIS 8541
(Tex.App. - Eastland October 27, 2011, no pet.)
(not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       6

Speth v. State, 6 S.W.3d 530
(Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   6

Teixeira v. State, 89 S.W.3d 190
(Tex.App. - Texarkana 2002, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . .            4

Washington v. State, 71 S.W.3d 498
(Tex.App. - Tyler 2002, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       4




                                                         iv
                           CAUSE NO. 12-15-00195-CR

                                      IN THE

                   THE 12th DISTRICT COURT OF APPEALS

                                     FOR THE

                                STATE OF TEXAS


                                STEVEN MOORE,

                                              APPELLANT
                                         V.

                             THE STATE OF TEXAS,

                                              APPELLEE


                 STATE’S REPLY TO APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS:

      Comes now the State of Texas, through the undersigned Assistant Criminal

District Attorney, and respectfully urges this Court to overrule Appellant’s alleged

errors and affirm the judgment of the trial court in the above-numbered cause.

                             STATEMENT OF THE CASE

      Appellant, Steven Moore, was charged in Cause No. 007-0446-15, in the 7th

District Court of Smith County, Texas, with the offense of Possession of a Controlled

                                          1
Substance. On July 14, 2015, the parties met in court, Appellant with counsel, and

after being fully admonished according to the law, Appellant entered an open plea of

"Guilty" to the offense alleged by the indictment. (RR 4: 64). Appellant further

entered sworn pleas of "True" to two enhancement paragraphs in the indictment

alleging prior felony convictions. (RR 4: 64). At a separate sentencing hearing held

on August 3, 2015, the Court heard evidence and argument of counsel and imposed

a thirty-five (35) years sentence and no fine. (RR 5: 20).

      Appellant gave timely notice of appeal and a brief has been filed with the

Court. The State's response brief will be timely filed if received by the clerk of the

Court on or before December 30, 2015.

                               STATEMENT OF F ACTS

      Appellant has stated the essential nature of the evidence presented at trial. In

the interest of judicial economy any other facts not mentioned herein that may be

relevant to disposition of Appellant's points of error will be discussed in the State's

arguments in response to those points.

    REPLY TO APPELLANT’S P OINTS OF ERROR AND SUMMARY OF ARGUMENT

COUNTERPOINTS ONE-TWO: Appellant has failed to properly preserve his Points
of Error by objecting. Alternatively, there was no abuse of the trial court's
discretion in not acknowledging the possibility of a deferred adjudication where
Appellant pled "true" to the enhancement paragraphs and was also a parole
violator at the time of his pleas in this case.

                                           2
A.    Summary of Argument

      Appellant argues in two points that the trial court violated his due process

rights by finding him guilty before the sentencing phase of trial and thus foreclosing

the possibility of a deferred adjudication of guilt. (Appellant's brief at 5-7). According

to Appellant, had the trial court waited until the punishment phase to make a finding

of guilt it would have allowed him to "prove himself to the Court." Id. at 6.

      However, there is no merit to this claim for several reasons. First because

Appellant has not preserved this error by objection. Next, Appellant pleaded "True"

to the habitual offender enhancement paragraphs in the indictment before the trial

court found him guilty and thus the applicable sentencing range was a minimum of

twenty-five years to life. Finally, Appellant fails to mention in his brief that the trial

court was aware that he was on parole when he committed the offense in this case and

when he enter his pleas of "Guilty" and "True" as well.

B.    Appellant did not object at Trial on the Basis now argued on Appeal

      As a preliminary matter, Appellant did not object at any time to the trial court's

allegedly premature finding of guilt. (RR 4: 73). A complaint that the trial court

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

consider the evidence and imposed a predetermined punishment is not preserved for

review unless a timely objection is raised at trial. TEX. R. APP. P. 33.1 (a); Teixeira

                                            3
v. State, 89 S.W.3d 190, 192 (Tex.App. - Texarkana 2002, pet. ref'd); Washington v.

State, 71 S.W.3d 498, 499-500 (Tex.App. - Tyler 2002, no pet.).

      In recognition that these points were not properly preserved by objection

Appellant argues that he has alleged a "structural error" and thus no objection was

necessary. However, he offers no authority for this proposition and it has not been

properly briefed. TEX. R. APP. P. 38.1 (i).1 As such, Appellant has not shown that he

has properly preserved the errors he is alleging by objecting at trial for the reasons

now argued in this appeal. His points should be overruled. Washington, 71 S.W.3d

at 499-500; see also Cole v. State, 931 S.W.2d 578, 580 (Tex.App. - Dallas 1995,

pet. ref'd) (defendant waives his due process complaint regarding sentencing if he

does not bring the error to the trial court's attention by proper objection).

C.    Appellant pleaded true to being an Habitual Offender

      In this case, the applicable punishment range due to Appellant's pleas of "True"

to the enhancement paragraphs was that of an habitual offender. (RR 4: 64). A person

can be charged and convicted as a habitual offender if, prior to the present charged



      1
        A "structural error" affects the framework within which the trial proceeds. Only a
      narrow line of cases have reversed a conviction based on structural error. See Johnson v.
      U.S., 520 U.S. 461, 468-69, 117 S. Ct. 1544, 1549-50, 137 L. Ed. 2d 718 (1997) (listing
      cases involving structural error: total deprivation of right to counsel, lack of impartial trial
      judge, unlawful exclusion of grand jurors of defendant's race, denial of right to
      self-representation at trial, right to public trial, erroneous reasonable-doubt instruction to
      jury) (citations omitted);

                                                 4
offense, he has been convicted of two prior felonies on separate occasions. TEX.

PENAL CODE ANN. § 12.42(d). The punishment for a person convicted as a habitual

offender is confinement for life or for a term of not less than twenty-five or not more

than ninety-nine years. Id.

D.    The Trial Court had complete Discretion in assessing Punishment

      Appellant has argued that the trial court foreclosed the possibility of a deferred

adjudication by finding him guilty before sentence and thus violated his due process

rights. However, Applicant has not shown this Court any authority which stands for

his proposition that he has a due process "right" to a deferred adjudication. The law

provides that it is entirely within the Court's discretion to defer a finding of guilt or

not. See Garrett v. State, 377 S.W.3d 697, 704 (Tex.Crim.App. 2012) ("Under Article

42.12, Section 5(a), a trial judge is given the discretion . . . to grant

deferred-adjudication community supervision for felonies and misdemeanors.").2



      2
          Section 5 provides in part that:

      Sec. 5. Deferred Adjudication; Community Supervision.

      (a) Except as provided by Subsection (d) of this section, when in the judge's opinion
      the best interest of society and the defendant will be served, the judge may, after
      receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and
      finding that it substantiates the defendant's guilt, defer further proceedings without
      entering an adjudication of guilt, and place the defendant on community supervision.

                               TEX. CODE CRIM. ANN. Art. 42.12, Sec. 5 (a) (Vernon 2015).

                                                5
      It is submitted that the proper focus of the Court's review of this case should

be on whether the trial court abused its discretion where Appellant specifically

waived a jury and requested that the trial court determine sentencing. (CR: 48, 59-60;

RR 4: 54-59).

      The law provides that the decision of whether to defer a guilt finding and grant

community supervision to the accused rests entirely within the discretion of the trial

court and is not reviewable on appeal. See Speth v. State, 6 S.W.3d 530, 533 (Tex.

Crim.App. 1999); Flournoy v. State, 589 S.W.2d 705, 707 (Tex.Crim. App. 1979);

see also Seifried v. State, No. 11-10-00006-CR, 2011 Tex.App. LEXIS 8541 *4-5

(Tex.App. - Eastland October 27, 2011, no pet.) (not designated for publication)

("Appellant elected to have the trial court assess punishment. In such cases, the

decision of whether to grant community supervision to the accused rests entirely

within the discretion of the trial court and is not reviewable on appeal.").3

E.    Due Process only requires Consideration of the full punishment Range

      While Appellant has no due process right to a specific punishment the law

does, however, require that the trial court consider the full range of punishment. A



      3
       The State proffers unpublished opinions to point out the reasoning of the courts therein
      when faced with very similar facts “rather than simply arguing without reference, that
      same reasoning.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex.App. - Amarillo 2003, pet.
      ref’d).

                                               6
trial court deprives a defendant of due process of law if it arbitrarily fails to consider

the full punishment range in assessing punishment. See McClenan v. State, 661

S.W.2d 108, 110 (Tex.Crim.App. 1983); Cole, 931 S.W.2d at 579. The record in this

case is silent as to what range of punishment was considered by the trial court prior

to the finding of guilt being imposed after Appellant's plea.

      However, by not deferring the finding of guilt, it can be inferred that the trial

court, in its discretion, apparently made a decision that such was not an appropriate

resolution to this case. The record shows that this was clearly not an abuse of the

court's discretion where, prior to finding Appellant guilty, the trial court was

specifically aware that: (1) the indictment alleged prior convictions which if found

true would establish Appellant as an habitual offender. (RR 2: 5, RR 3: 42, 54, 59);

(2) Appellant intended to plead "true" to the enhancement provisions in the

indictment. (RR 3: 42, 54, 59); (3) Appellant was on parole at the time of the offense

and when he entered his guilty plea. (RR 3: 13-15, 19, 49); (4) Appellant's parole was

pending revocation. (RR 3: 13-14); and, (5) the State had filed notice of intent to

prove at least seven other prior convictions and two pending charges during the

punishment phase of trial. (CR: 15-16, RR 3: 7).

      Thus, contrary to Appellant's claim that "the court would not have been aware

of any other circumstances" of Appellant's life beyond the facts of this case, the

                                            7
record shows that the trial court knew that Appellant was an habitual criminal who

had committed the instant drug possession offense while out on parole from another

drug possession conviction. (RR 3: 13-15, 19, 49). The Court was also aware that the

State intended to prove that Appellant had been previously convicted of other

criminal offenses such as assault, criminal trespass, possession of marijuana, resisting

arrest and burglary of a vehicle. (CR: 15-16).

      In short, there was certainly sufficient evidence in the record from which a

reasonable jurist in his discretion could conclude that Appellant was a very poor

candidate for a deferred adjudication probation. Appellant has not shown otherwise.

      For these reasons, there is no merit to Appellant's Points of Error and they

should be overruled.




                                           8
                                       P RAYER

      WHEREFORE, for the reasons stated herein, the State of Texas prays that the

Court of Appeals overrule Appellant’s Points of Error and affirm the judgment of the

7th District Court, Smith County, Texas, in this case.

                                        Respectfully submitted,

                                        D. MATT BINGHAM
                                        Smith County Criminal District Attorney


                                           /s/ Michael J. West
                                        _________________________
                                        Michael J. West
                                        Asst. Criminal District Attorney
                                        Bar I.D. No. 21203300
                                        100 N. Broadway, 4th Fl.
                                        Tyler, Texas 75702
                                        (903) 590-1720
                                        (903) 590-1719 (fax)


                           CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that the pertinent sections of the State’s Reply

Brief in the above numbered cause contain 1483 words, an amount which complies

with Texas Rule of Appellate Procedure 9.4 (I) (Vernon 2015).


                                        _________________________
                                         /s/ Michael J. West
                                        Michael J. West
                                        Asst. Criminal District Attorney
                                        Bar I.D. No. 21203300

                                           9
                            CERTIFICATE OF SERVICE

                                                    30th day of ________________,
      The undersigned hereby certifies that on this _____        December
2015, the following have been completed:

      (1) The original of the State’s Response to Appellant’s Brief in the above
      numbered cause has been sent via electronic filing to the Clerk of the Court of
      Twelfth Court of Appeals.

      (2) A legible copy of the State’s Response to Appellant’s Brief in the above
      numbered cause has been sent via electronic filing to:

      Mr. James Huggler
      Attorney at Law
      100 E. Ferguson, Ste. 310
      Tyler, Texas 75702


                                       _________________________
                                        /s/ Michael J. West
                                       Michael J. West
                                       Asst. Criminal District Attorney
                                       Bar I.D. No. 21203300




                                         10
