Kelton Derek Wilson v. State
Opinion
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 RECEIVED IN 12th COURT OF APPEALS
TYLER, TEXAS
IN THE 6/23/2015 9:18:05 AM CATHY S. LUSK
TWELFTH COURT OF APPEALS Clerk
TYLER, TEXAS
KELTON DEREK WILSON, Appellant vs.
THE STATE OF TEXAS, Appellee
On Appeal from the
rd
3 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
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
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
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
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
rd
3 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.
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 3rd 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
Free access — add to your briefcase to read the full text and ask questions with AI
Kelton Derek Wilson v. State (Kelton Derek Wilson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.