Case Information
*0 RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 6/23/2015 9:18:05 AM CATHY S. LUSK Clerk *1 ACCEPTED 12-15-00010-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 6/23/2015 9:18:05 AM CATHY LUSK CLERK
No oral argument requested CASE NO. 12-15-00010-CR IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS _______________________________ KELTON DEREK WILSON, Appellant vs.
THE STATE OF TEXAS, Appellee _______________________________ On Appeal from the 3 rd Judicial District Court Henderson County, Texas (Trial Court Case Number: C-20,914) Honorable Judge Mark Calhoon, Judge Presiding BRIEF OF APPELLANT Linda A. Altier Altier Law Offices 1527 E. Fifth St.
Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 e-mail: altierlaw@gmail.com State Bar of Texas No.: 00783541 Attorney for Appellant, Kelton Derek Wilson *2 IDENTITIES OF PARTIES AND COUNSEL State of Texas, Appellee
Prosecutor in Trial Court
Kelton Derek Wilson, Appellant
Defendant in Trial Court
TRIAL COURT COUNSEL
Mr. Mark Hall, Attorney for State
125 N. Prairieville St.
Athens, Texas 75751
Mr. Scott Williams, Attorney for Defendant
100 East Tyler Street,
Athens, Texas 75751
APPELLATE COUNSEL
Linda Altier, Attorney for Appellant
1527 E. Fifth St.
Tyler, Texas 75701
Mark Hall, Attorney for State
125 N. Prairieville St.
Athens, Texas 75751
i *3 TABLE OF CONTENTS Identity of Parties and Counsel …………………………………………………….i
Index of Authorities ………………………………………………………………iii
Statement of the Case …………………………………………………………….. 2
Issues Presented ……………………………………………………………………3
POINT OF ERROR:
THE TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING AN
UNADJUDUCATED JUVENILE FELONY OFFENSE IN SENTENCING
DEFENDANT.
Statement of Facts ………..………………………………………………………. 3
Point of Error One Restated. ………………………………………………………3
Summary of the Argument.……………………………………………………….. 4
Argument and Authority ………………………………………………………….. 4
Certificate of Service……………………………………………………………… 6
Certificate of Compliance………………………………………………………… 7
ii *4 INDEX OF AUTHORITIES CASES: Page
Flowers v. State , 220 S.W.3d 919 (Tex.Crim.App. 2007). . …………………….5
Strasser v. State , 81 S.W.3d 468 (Tex.App.-Eastland 2002) …………………….5
STATUTES AND RULES:
Texas Code of Criminal Procedure, Article 37.07 §3 ….………..……………… 4
Texas Rules of Evidence,403 . . . . . . . . . . . . . . . . . . . . . . .………………………..5
iii *5 CASE NO. 12-15-00010-CR IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS _______________________________ KELTON DEREK WILSON, Appellant vs.
THE STATE OF TEXAS, Appellee _______________________________ On Appeal from the 3 rd Judicial District Court Henderson County, Texas (Trial Court Case Number: C-20,914) Honorable Judge Mark Calhoon, Judge Presiding BRIEF OF APPELLANT
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW KELTON DEREK WILSON, hereinafter sometimes referred to as Appellant, and submits his Brief on Appeal in the above entitled and
numbered Cause, pursuant to the provisions of the Texas Rules of Appellate
Procedure.
1 *6 STATEMENT OF THE CASE APPELLANT WAIVES ORAL ARGUMENT On December 5, 2013, a grand jury indicted Kelton Derek Wilson, hereinafter sometimes referred to as Appellant, for Evading Arrest or Detention
With a Motor Vehicle, a Third Degree Felony, (CR1:1). On August 18, 2014
Appellant waived his right to a jury in this case and elected to have punishment set
by the Court (CR 1:7). On August 22, 2014 Appellant entered his plea of guilty to
the Court (CR 1:8-9). The Court ordered a presentence investigation report to be
completed by October 13, 2014, for sentencing purposes (CR 1:11-12). On
December 17, 2014 the Court Adjudicated Appellant guilty and after hearing the
evidence, sentenced him to Ten (10) years confinement in the Texas Department of
Corrections Institutional Division, (CR 1:109-110). Appellant filed his Notice of
Appeal on December 29, 2014 (CR 1:112-113).
STATEMENT OF JURISDICTION Therefore, the Twelfth Court of Appeals holds jurisdiction.
__________________________________________________________________
Note: For purposes of this Appeal Brief, all references to the Clerk’s Record
will be noted as “CR,” followed by the volume number and page number.
References to the Reporter’s Record will be noted as “RR,” followed by the
volume number, page number and line as necessary. Any emphasis added by this
writer will be noted as same immediately following the word or phrase emphasized
by italics.
ISSUES PRESENTED POINT OF ERROR:
THE TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING AN UNADJUDUCATED JUVENILE FELONY OFFENSE IN SENTENCING
DEFENDANT.
STATEMENT OF FACTS On August 18, 2014 Appellant waived his right to a jury in this case (CR 1:7). The Court ordered a presentence investigation report to be completed for
sentencing (CR 1:11-12). On December 17, 2014 the Court heard evidence,
including the presentence investigation report and testimony from witnesses and
Appellant. During opening statements to the Court, the State urged the Court to
consider Appellant’s unindicted juvenile felony to which Appellant’s trial
attorney objected (CR 1:9-15). Following testimony the Court Adjudicated
Appellant guilty and sentenced him to Ten (10) years confinement in the Texas
Department of Corrections Institutional Division, (CR 1:109-110).
POINT OF ERROR, (Restated):
THE TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING AN UNADJUDICATED JUVENILE FELONY OFFENSE IN SENTENCING
DEFENDANT.
SUMMARY OF THE ARGUMENT The Trial Court abused its discretion by considering the un-adjudicated offense of Appellant, alleged to have been committed when he was a juvenile
because the State failed to meet its burden of proof, beyond a reasonable doubt,
that Appellant was the same person who committed the juvenile offenses as listed
in the pre-sentence investigation record; or that Appellant was adjudicated for the
offense. Over objection of Appellant’s attorney, the juvenile record was
considered by the trial Court which resulted in Appellant receiving the maximum
sentence of ten years in prison for the third degree felony of Evading
Arrest/Detention with a Motor Vehicle.
ARGUMENT AND AUTHORITY At Appellant’s sentencing hearing before the 3 rd Judicial District Court, on December 17, 2014, Appellant’s trial attorney objected to the Court considering a
non-conviction or un-adjudicated offense that Appellant was alleged to have
committed when Appellant was eleven years old (RR 1:6:9-21). Appellant argues
that Texas C.C.P. Art. 37.07 Sec. 3 (a)(1) mandates that even though evidence may
be offered by the State of a defendant’s prior criminal record, any evidence of an
extraneous crime or bad act must be shown beyond a reasonable doubt ( emphasis
added ) to have been committed by the defendant.
In Strasser v. State, the Eastland Court of Appeals referred to the trial Court’s admonition to the State that if the State was going into other bad acts, it
was going to have to establish beyond a reasonable doubt that the Defendant was
the one who did the act and prove Defendant’s identity. Strasser v. State ,
81S.W.3d 468 (Tex. App.-Eastland 2002). Appellant complains that the trial
Court erred when it considered un-adjudicated juvenile records during the
sentencing hearing without the State establishing beyond a reasonable doubt that
the Defendant committed the offense of burglary of an occupied dwelling (that a
prior conviction existed) and that he was finally adjudicated of said offense (that
defendant was linked to that conviction). These two prongs as set out in the
parentheses above are established in Flowers v. State , 220 S.W.3d 919
(Tex.Crim.App.2007). Appellant argues that his juvenile records that were
admitted were more prejudicial than they were probative pursuant to Tex. R. Evid.
403, resulting in an excessive sentence from the trial Court. The trial Court’s
decision to admit the un-adjudicated juvenile records without establishing that
defendant committed an offense or proved his identity in the offense as required by
Flowers is an abuse of discretion by the trial court. Therefore, this case should be
reversed and remanded to the trial Court for sentencing.
PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that this Honorable Court hold that the trial court abused its discretion, reverse and
remand this case for rehearing of sentencing.
Respectfully Submitted, ALTIER LAW OFFICES 1527 E. Fifth St. Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 altierlaw@gmail.com By: /s/ Linda A. Altier TSBN: 00783541 Attorney for Appellant CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Appellant’s Brief has been served on Mark Hall, Attorney for the State,
and R. Scott McKee, Henderson County District Attorney, 109 W. Corsicana St.,
Ste. 103, Athens, Texas, by e-mail to mwhall@co.henderson.tx.us, on June 23,
2015.
/s/ Linda A. Altier *11 CERTIFICATE OF COMPLIANCE In compliance with TRAP 9.4(i), the undersigned hereby certifies that the number of words contained in the above Brief of Appellant are 588; excluding
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, signature, proof of service, certification, and certificate of
compliance, which is less than the maximum allowed of 15,000 words.
/s/ Linda A. Altier