          <M'l5                             W3-I5
                  No.




RIGINAL                     IN    THE
                                                              COURT OF CRIWAL APPEALS
               COURT    OF CRIMINAL APPEALS

                           OF    TEXAS                             SEP 18 2015

                                                              Abel Acosia, Clerk
                 David Blaine McKinley,                            FILED IN
                            Appellant/Petitioner;         COURT OF CRIMINAL APPEALS
                                vs.                             SEP 18 2G15
                  The State of Texas,
                                                             Abel Acosta, Clerk
                            Appellee/Respondent.




    Appellant's Petition for Discretionary Review




      In Appeals Nos. 10-14-00202-CR and 10-14-00203-CR
                        Court of Appeals
              for the Tenth Judicial District
                          Waco, Texas




                                           David Blaine McKinley
                                           Petitioner, Pro Se
                                           TDCJ-CID #01926782
                                           Stiles Unit
                                           3060 FM 3514
                                           Beaumont, Texas 77705



                 Oral Argument. Not Requested
                                 LIST   OF   PARTIES



Appellant
David Blaine McKinley, Pro Se

Appellee
The State of Texas


Defense Attorney at Trial
Original Plea and Adjudication
Kent McGuire
Attorney at Law
109 E. Franklin St.
Waxahachie, Texas 75165

State's Attorneys at Trial
On the Original Plea.: Mr. Patrick Wilson (or his designated representative)
Ellis County District Attorney's Office
109 South Jackson Street
Waxahachie, Texas 75165

Appellant's Attorney at 10th Court of Appeals
John M. Perkins III
Attorney at Law
201 E. Main St.
Waxahachie, Texas 75165

State's Attorney on Appeal
Patrick Wilson (or his designated representative)
Ellis County District Attorney's Office
109 South Jackson Street
Waxahachie, Texas 75165

State's Prosecuting Attorney
P.O. Box 12405
Austiny Texas 78711




Appellant's Petition for Discretionary Review - Page ii
                                 TABLE       OF   CONTENTS


List of Parties                                                               ii

Index of Authorities                                                          -iv

Statement Regarding Oral Argument                                              1

Statement of the Case                                                        1-2

Statement of Procedural History                                                 2

Question for Review                                                            3

    Question for Review One:
    Does Texas Code of Criminal Procedure Art. 42.01, § 1(25) allow for a
    judgment to demand that Restitution be paid to a person or agency when
    no Restitution has been imposed?

Argument for Question One ....... ..'.;:.•                                   4-6

Prayer for Relief                                                               7

Certificate of Service                                                          7

Verification or Inmate Declaration                                              8

Appendix A: Opinion of the Tenth COurt of Appeals                            9-13

Appendix B: Written Judgments for 37611CR and 37612CR                       14-20




Appellant's Petition for Discretionary Review - Page iii
                           INDEX OF AUTHORITIES


Gases


Weir v. State, 252 S.W.3d 85 (App. 3 Dist. 2008), pet. granted, pet. ref'd;.
    aff'd in part, reversed in part 278 S.W.3d 384                             4

Statutes

Tex. Code Crim. Proc. art. 42.01, § 1                                  4, 5, 6




Appellant's Petition for Discretionary Review - Page iv
                              No.



                                          IN THE

                        COURT       OF   CRIMINAL APPEALS

                                         OF   TEXAS




                          David Blaine McKinley,
                                          Appellant/Petitioner;

                                              vs.



                              The State of Texas,
                                          Appellee/Respondent.




            Appellant's Petition for Discretionary Review




TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

    Appellant/Petitioner respectfully submits this Petition for Discretionary

Review and moves that this Honorable Court grant review of these causes and

offers the following in support thereof:

                   STATEMENT REGARDING ORAL ARGUMENT

   Appellant/Petitioner waives oral argument at this time. It is suggested

that the gacts in this case are sufficient enough for the Court to determine

the issues from the record.


                          STATEMENT            OF   THE   CASE


   Appellant was charged by indictment with the offense of Indecency with a C

Child by sexual contact. CR-1. The indictment, as amended, also alleged two

prior felony convictions. CR-1.

   Appellant was also charged in cause number 37611CR with Continuous Sexual


Appellant's Petition for Discretionary Review - Page 1
Abuse,of a Child. Ill RR-9. Appellant entered pleas of not guilty, was found

guilty by a jury, and was sentenced to twenty-five years imprisonment in each

cause. CR 61; V RR-57-60|-=The sentence is cause number137612CR was ordered to

be served after, the sentence in cause number 37611CR ceases to operate. CR 60-

61. The judgments entere.d in Appellant's causes stated that Restitution be

paid to Ellis County Community Supervision and Corrections but did not impose

any Restitution or Reparation to be paid.

                     STATEMENT OF   PROCEDURAL HISTORY

    In Cause Number?37611CR the Appellant was charged with the offense of

Continuous Sexual Abuse of a Child. In Cause Number 37612CR the Appellant was

charged with the offense of Indecency with a Child by Sexual Contact. The

Appellant was convicted of such offenses on April 11, 2014,and appealdd the

convictions. On July 2, 2015, the Waco Court of Appeals affirmed the convic

tions. No motionofor rehearing was filed. On September 10, 2015, this Petition

for Discretionary Review was timely forwarded to the Court of Criminal Appeals.




Appellant's;:Petition for Discretionary Review - Page 2
                           QUESTION FOR REVIEW


Question One: Does Texas Code of Criminal Procedure Art.. 42.01, § 1(25) allow
              for a judgment to demand that Restitution be paid to a person or
              agency when no Restitution has been imposed?




Appellant's Petition For Discretionary Review - Page 3
                        ARGUMENT FOR QUESTION ONE

Does the Code of Criminal Procedure Art. 42.01, § 1(25) allow for a judgment
to demand that Restitution be paid to a person or agency when no Restitution
has been imposed?

   This issue specifically raises ;the question of what a judgment should

reflect when no restitution has been ordered to be paid to a victim in accord

ances!th Tex. Code Crim. Proc. art. 42.01, § 1(25). The Court of Appeals for

the Tenth Judicial District has determined that the statute does not specify a

remedy in this situation.

A. The Judgments at Issue

   The Appellant was indicted and convicted under cause numbers 37611CR and

37612CR. The 40th Judicial District Court of Ellis County, Texas, rendered

judgments in both causes on April 24, 2014. When the judgments were imposed in

open court, no restitution was ordered to be paid to the victim. The written

judgments reflect that no restitution was imposed. However; the written judg

ments go on to reflect that "Restitution [] Be Paid To: ELLIS COUNTY COMMUNITY

SUPERVISION AND CORRECTIONS." See Judgments;: attached as Appendix B (Written

Judgments for 37611CR and 37612CR).

B. Statutory Authority Dealing With Restitution

   Under the Texas Code of Criminal Procedure, a trial court may impose judg

ment of restitution to be paid to the victim of a crime. Because restitution

is punishment, it must be included in the oral pronouncementyof sentence in

order to be properly included in the written judgment. Weir v. State, 252

S.W.3d 85 (App. 3 Dist. 2008), pet. granted, pet. ref'd, aff'd in part, rever

sed in part 278 S,W.3d 364.

    As set out in Art. 42.01, § 1, "[a] judgment is the written declaration of

the court signed by the trial judge and entered of record showing the convic-



Appellant's Petition for Discretionary Review - Page 4
tion or aquittal of the defendant." Tex. Code Crim. Proc. art. 42.01, § 1. The

sentence-served shall be based on the information contained in the judgment.

Id. The statute further sets out what the written judgment shall reflect.

   In the event that the trial court orders restitution to be paid to the

victim, a statement of the amount of restitution shall be reflected in the
judgment. Tex. Code Crim. Proc. art. 42.01, § 1(25). The requirements of the

restitution amount statement are completed with an additional statement indi

cating whether the trial court elected a person or agency to forward payments
to the victim or whether the trial court elected to have payments made direct

ly to the victim. Id, at § 1(25)(A-B).

C. The Court of Appeals Determination is Flawed

   The Appellant argued to the court of appeals that since no restitution was

ordered toibe paid by the trial court and because the written judgment reflects

that that the amount of restitution to be paid is not applicable, then the

written judgment should also reflect that the person or agency that the resti

tution is to be paid to should also be indicated as not applicable. See Appel

lant's Brief at 17.

    The State argued to the court of appeals that Applicant had not shown any

harm in the error, but did not oppose the change to the judgment. See State's

Brief at 6-7.

    In rendering its opinion to this issue, the court of appeals determined

that "[Art. 42.01, § 1] does not speciffically address the situation in these
cases where the trial court ordered no restitution be paid to the victim."

Opinion at 4. The court of appeals further stated that '.'[Appellant}-also cites
to nothing to support the proposition that-the judgments in these cases need
to be modified for this reason." Id.

    The court of appeals has misread the statute. A plaini: reading of the

Appellant's Petition for Discretionary Review - Page 5    -
statute indicated that "in the event" that^restitution is ordered, the judgment

shall reflect a statement of the amount to be paid and to whom it is to be paid

to. Because the "event"—the imposition of restitution—did not occur in Appel

lant's case, the written judgment should haveireflected that the amount of

restitution to be paid and whom it was to be paid to was not applicable.

   Moreover, a plain reading of the statute would not allow for a statement

of "not applicable" to be reflected in the written judgment regarding resti

tution when no restitution has been imposed. Because no restitution was imposed

in Appellant's cases, Art. 42.01, § 1(25) was never triggered to take affect.

As such, all statements and text regarding restitution should be removed from

Appellant's judgments.

D. Conclusion to the Argument

   Appellant was not ordered to pay restitution to the victim. The written

judgments reflected this. However, the written judgments reflected that Resti

tution be paid to a .county agency. The statute governing written judgments

does not allow for the designation of whom restitution is to be paid when no

restitution has been ordered. The statute specifically addresses this situ

ation. The court of appeals' determinationto the contrary was a misunderstand

ing of the statute. Appellant's written judgments should be modified to remove

all statements and text concerning restitution. In the alternative, Appel

lant's written judgments should be modified to reflect that the person or

agency that the restitution is to be paid to is "not applicable."




Appellant's Petition for Discretionary Review - Page 6
                             PRAYER   FOR   RELIEF

    For the reasons stated above, it is respectfully submitted that the Court

of Criminal Appeals of Texas should grant this Petition for Discretionary

Review.

                                                 Respectfully submitted,


                                                         •J felu^LI
                                                 David Blaine McKinley
                                                 Petitioner, Pro Se
                                                 TDCJ-CID #01926785
                                                 Stiles Unit
                                                 3060 FM 3514
                                                 Beaumont, Texas 77705

                          CERTIFICATE OF     SERVICE


    The undersigned Appellant/Petitioner hereby certifies that a true and cor

rect copy of the foregoing Petition for Discretionary Review has been mailed,

U.S. Mail, postage prepaid, to the District Attorney, Appellate Division,

Ellis. County Courthouse, 109 South Jackson Street, Waxahachie, Texas 75165,

and to the State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711,

on this the 10th day of September,22015.


                                                 David Blaine McKinley




Appellant's Petition for Discretionary Review - Page 7
                  VERIFICATION OR    INMATE DECLARATION

   I, David Blaine McKinley, TDCJ-CID #01926785, DOB X*- jj£ K^bS, being
presently incarcerated at the Stiles Unit of the Texas Department of Criminal

Justice, Beaumont, Jefferson County, Texas, declare (or certify, verify, or

state) under penalty of perjury that Iihave read the above and foregoing

Petition for Discretionary Review, that the facts contained herein are true

and correct, and that this petition is made in good faith.

EXECUTED, this the 10th day of September, 2015


                                                 David Blaine McKinley        /




Appellant's Petition for Discretionary Review - Page 8
                               Appendix A

               Opinion of the Tenth Court of Appeals




Appellant'soPetition for Discretionary Review - Page 9
                                         IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-14-00202-CR
                                  No. 10-14-00203-CR

DAVID BLAINE MCKINLEY,
                                                             Appellant
v.



THE STATE OF TEXAS,
                                                             Appellee


                            From the 40th District Court
                                 Ellis County, Texas
                     Trial Court Nos. 37611CR and 37612CR


                           MEMORANDUM OPINION


      A jury found Appellant David Blaine McKinley guilty of continuous sexual abuse

ofa child and indecency witha child and assessed his punishment at twenty-five years'
imprisonment for eachoffense, to be served consecutively. These appealsensued.

      In his first issue in eachappeal, McKinley contends that the judgments should be

modified to correctly reflect the attorneys for the State. McKinley argues that the

judgments improperly show Patrick M. Wilson, the elected county and district attorney
for Ellis County, as the State's attorney even though the record reflects that the attorneys
who appeared for the State in this case were Amy Nguyen and Ricky Sipes, assistant
county and district attorneys for Ellis County. McKinley, however, cites to nothing to
show that the elected State's attorney cannot be named in the judgment if he did not

participate in the proceedingresultingin thejudgment. TheCode of Criminal Procedure

states that a judgment shall reflect "[tjhat the case was called and the parties appeared,

naming the attorney for the state, the defendant, and the attorney for the defendant."

Tex. Code Crim. PROC. Ann.art. 42.01, § 1(2) (West Supp. 2014). The elected county and

district attorney for Ellis County is the attorney for theState in this case. McKinley's first
issue in each appeal is therefore overruled.

       In his second issue in Cause No. 10-14-00202-CR, McKinley contends that there is

insufficient evidence to support the trial court's order for him to pay $3,133 in court costs.

McKinley argues that theclerk's record in Cause No. 10-14-00202-CR contains only a bill

of estimated court costs in the amount of $413; therefore, the clerk's record should be

supplemented by a bill of costs or the judgment should be reformed to reflect the court

costs contained in the record. The State responds that after McKinley filed his brief in

this case, a supplemental clerk's record was filed containing the final bill of costs. The

State concedes that the judgment should be modified, however, because the $3,133

includes attorney's fees in the amount of $2,720.

       The clerk's record in Cause No. 10-14-00202-CR reflects that, before trial, the trial

court found that McKinley was indigent and appointed an attorney to represent him.

Once McKinley was initially found to be indigent, he was presumed to remainindigent

for the remainder of the proceedings unless it was shown that a material change in his

McKinley v.State                                                                        Page 2
financial resources had occurred. See Tex. Code Crim. Proc. Ann. art. 26.04(p) (West

Supp. 2014). The trial court did not make any findings or otherwise address McKinley's

financial condition again before signing the judgment. Furthermore, the trial court

appointed an attorney for appeal, stating that "the Defendant is too poor to employ

counsel." Therefore, we sustain McKinley's second issue in Cause No. 10-14-00202-CR

and modify the judgment to delete the assessment of attorney's fees. See Mayer v. State,

309 S.W.3d 552,555-56 (Tex. Crim. App. 2010). The judgment is modified to reflect court

costs in the amount of $413.

       In his second issue in Cause No. 10-14-00203-CR, McKinley contends that the

judgment in the case should be modified to accurately reflect all sections of the Penal

Code that he was found to have violated. McKinley complains that the judgment does

not reflect the statute giving rise to the enhanced punishment—section 12.42(d) of the

Penal Code.


       Article 42.01 of the Code of Criminal Procedure requires that the judgment reflect

"[t]he offense or offenses for which the defendant was convicted" and the "degree of

offense for which the defendant was convicted." Tex. CODE Crim. PrOC ANN. art. 42.01,

§ 1(13), (14). The judgment in Cause No. 10-14-00203-CR states that McKinley was

convicted under section 21.11 of the Penal Code of the offense of indecency with a child,

a second degree felony enhanced to first degree felony- habitual offender. We conclude

that this complies with article 42.01. We therefore overrule McKinley's second issue in

Cause No. 10-14-00203-CR.

       Finally, in his third issue in each appeal, McKinley contends that the judgment

McKinley v. State                                                                  Page 3
incorrectly demands that restitution be paid to Ellis County Community Supervision and
Corrections. McKinley argues that this section of the judgments should be modified to
reflect that it is not applicable (N/A) because no restitution was assessed. The Code of
Criminal Procedure states that ajudgment shall reflect: "In the event that the court orders
restitution to be paid to the victim, a statement of the amount of restitution ordered and

... the name and address of a person or agency that will accept and forward restitution
payments tothe victim." Tex. Code Crim. Proc.Ann. art. 42.01, §1(25). The statute does
not specifically address the situation in these cases where the trial courtordered that no

restitution be paid to the victim. McKinley also cites to nothing to support the
proposition that the judgments in these cases need to be modified for this reason. We

therefore overrule McKinley's third issue ineach appeal.
        We affirm the trial court's judgments as modified herein.




                                                REX D.DAVIS
                                                Justice

Before ChiefJustice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 2,2015
Do not publish
[CRPM]




McKinley v. State                                                                   Page 4
                                Appendix B

             Written judgments for 37611CR and 37612CR




Appellant's Petition for Discretionary Review - Page 14
  r8™1^                                   o   .^aga^g^.'g.i^-rj-j&^;^y»y»^^gJsajaa^isaaa

                                                                                                                  6


  I                                                  CAUSE NO. 37611 CR

 1IS    THE STATE OF TEXAS           ?'                                                    IN THE 40TH JUDICIAL

        VS                                                                                 DISTRICT COURT OF
•iff
        DAVID BLAINE MCKINLEY                                                              ELLIS COUNTY, TEXAS

                                                JUDGMENT JURY VERDICT
                       PUNISHMENT FIXED BY COURT OR JURY-NO PROBATION GRANTED

        Date of Judgment: APRIL 11, 2014
        Judge Presiding: BOB CARROLL
        Attorney for State: PATRICK M. WILSON
        Attorney for Defendant: KENT MCGUIRE
        Offense Convicted of: CONTINUOUS SEXUAL ABUSE OF A CHILD
        Date Offense Committed: OCTOBER 1, 2009 THROUGH AUGUST 1, 2010
        Degree: FIRST
        T.P.C. orH.S.C:      21.02
        Charging Instrument: INDICTMENT
        Plea: NOT GUILTY
        Jury Verdict: GUILTY
        Presiding Juror: BRANDON MCKENZIE
        Plea to Enhancement Paragraph(s): NONE
        Findings on Enhancement Paragraph (s): NONE
        Findings on Use of Deadly Weapon: NONE
        Punishment Assessed by: JURY
        Date Sentence Imposed: APRIL 11, 2014
        Fine: $ NONE
        Costs:$   3,133.00
        Punishment and Place of Confinement: 25 YEARS TDCJID
        Date to Commence: APRIL 11, 2014
        Total Amount of Restitution/Reparation : NONE
        Time Credited:    146 DAYS
        Restitution To Be Paid To: ELLIS COUNTY COMMUNITY SUPERVISION AND CORRECTIONS
                                                                                                                  k

        THIS SENTENCE IS TO BE SERVED CONCURRENT WITH ANY OTHER SENTENCE UNLESS
                                                                                                                  m
        OTHERWISE SPECIFIED
                                                                                                                  S
                                                                                                                  I

                                                                                                                  I
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         CAUSE NO. 37611 CR                                                                                                  m


         THE STATE OF TEXAS VS DAVID BLAINE MCKINI.r.V
                                                                                                                            1
 is        On this day set forth above, the cause was called tor trial, and the State appeared bv the above named I
   attorney, and the Defendant appeared in person in open court, the above-named counsel for Defendant also being 1
   present, and said Defendant having been duly arraigned and in appearing to the Court that Defendant was mentally
 1 competent, and having pleaded as shown above to the indictment herein, both parties announced readv for trial and
 its

    hereupon ajury, to-wit, the above named foreman and eleven others was duly selected, impaneled and sworn who
 •j. having heard the indictment read and the Defendant's plea thereto, and having heard the evidence submitted, and
 j| having been duly charged by the Court, retired in charge ofthe proper officer to consider the verdict, and afterward    I
 |j| were brought into Court by the proper officer, the Defendant and Defendant's counsel being present and returned        i
     into open Court the verdict set forth above, which was received by the Court and is here now entered upon the
        minutes of the Court as shown above.                                                                                •if
                                                                                                                            ?(


                rhereupon, the Defendant elected to have punishment: assessed by the above shown assessor ofpunishment tI
        and when shown above that the indictment contains enhancement: paragraph (s), which were not waived, and alleges t
        Defendant to have been convicted previously of any felony or offenses for the purpose of enhancement of I
        punishment, then the Court asked Defendant ifsuch allegations were true or false and Defendant answered as shown ¥
        above And when Defendant is shown above to have elected to have the jury assess punishment, such jury was
        called back into the box mid heard evidence related to the question of punishment and having been duly charged I
        by the Court, they retired to consider such questions, and alter having deliberated, they returned into Court the
        verdict shown under punishment above; and when Defendant is shown above to have elected to have punishment
        fixed by the Court, in due form of law further evidence was heard by the Court relative to the question of
        punishment: and the Court fixed the punishment of the Defendant as shown above.




IS

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        PAGE   'WO OF FIVE




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$       CAUSE NO. 37611CR
        THE STATE OF TEXAS VS DAVID BLAINE MCKINLEY



               IT IS. THEREFORE, CONSIDERED and ORDERED by the Court, in the Court, in presence of the
        Defendant, that the said judgment be, and the said is hereby in all things approved and confirmed, and that the
        Defendant is adjudged guilty ofthe offense set forth above as found by the verdict ofthe jury, as set forth above,
        and said Defendant be punished in accordance with the Jury Verdict or the Court's Findings, as shown above and
        that the Defendant is sentenced to a term ofimprisonment orline orboth, as set forth above, and that said Defendant
        be delivered by the Sheriff to the Director ofthe Department ofCriminal Justice. Institutional Division ofthe State
        ofTexas, or other person legally authorized to receive such convicts for the punishment assessed herein, and the
        said Defendant shall be confined for the above named term in accordance with the provisions oflaw governing such
        punishments and execution may issue as necessary.

               And the said Defendant is remanded to jail until said Sheriff can obey the directions ofthis judgment.

               SIGNED THIS
                                  4L            DAY OF
                                                                 4^
!<9

                                                                       BOB CARROL]
                                                                       Judge Presiding



        Notice of Appeal: NONE




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        PAGE THREE OF FIVE



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                                                CAUSE NOs376I2£r
 '4
         THE STATE OF TEXAS
 IB                                                             fv»   IN THE 40TH JUDICIAL
                                                 im ' ••'
         VS
                                                                      DISTRICT COURT OF
 its
         DAVID BLAINE MCKINLEY
                                                                      ELLIS COUNTY, TEXAS

                                           JUDGMENT JURY VERDICT
                     PUNISHMENT FIXED BY COURT OR JURY-NO PROBATION GRANTED
         Date of Judgment: APRIL 11,2014
1        Judge Presiding: BOB CARROLL
         Attorney for State: PATRICK ML WILSON
 13
 it*     Attorney for Defendant: KENT MCGUIRE
         Offense Convicted of: INDECENCY WITH A CHILD
         Date Offense Committed: MAY 1, 2012
        Degree. SECOND DEGREE FELONY ENHANCED TO FIRST DEGREE FELONY - HABITUAL
        T.P.C. orll.S.C: 21.1.1
        Charging Instrument: INDICTMENT
        Plea: NOT GUILTY
        Jury Verdict: GUILTY
        Presiding Juror: BRANDON MCKENZIE
        Plea to Enhancement Paragraph(s): NOT TRUE
        Findings on Enhancement Paragraph (s): TRUE
        Findings on Use of Deadly Weapon: NONE
        Punishment Assessed by: JURY
        Date Sentence Imposed: APRIL 11, 2014
        Fine: $ NONE
i       Costs:$ 413.00
1       Punishment and Place of Confinement: 25 YEARS TDCJID
        Date to Commence: APRIL 11, 2014
        Total Amount of Restitution/Reparation : NONE
        Time Credited: 146 DAYS
        Restitution To Be Paid To: ELLIS COUNTY COMMUNITY SUPERVISION AND CORRECTIONS
        IT IS FURTHER ORDERED BY THE COURT THAT THE PUNISHMENT UNDER THE JUDGMENT
        HERE IMPOSED SHALL BEGIN WHEN THE JUDGMENT AND SENTENCE AGAINST THE
        DEFENDANT IN CAUSE NO. 3761 ICR IN THE 40TH DISTRICT COURT OF ELLIS COUNTY
        TEXAS, WHEREIN THE DEFENDANT WAS ON THE 11TH DAY OF APRIL, 2014, DULY AND
        LEGALLY SENTENCED TO A TERM OF TWENTY-FIVE (25) YEARS FORTHE OFFENSE OF
        CONTINUOUS SEXUAL ABUSE OF ACHILD IN CAUSE NO. 3761 ICR SHALlAiAV^EMED TO
        OPERATE.                                                        •/^^Zi-^A*
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        PAGE ONE OF FIVE



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        CAUSE NO. 37612CR
        THE STATE OF TEXAS VS DAVID BLAINE MCKINLEY


                On this day. set forth above, the cause was called for trial, and the State appeared bv the above named
!S      attorney, and the Defendant appeared in person in open court, the above-named counsel for Defendant also being
        present, and said Defendant having been duly arraigned and in appearing to the Court that Defendant was mentally
        competent, and having pleaded as shown above to the indictment herein, both parties announced ready for trial and
m
        thereupon ajury, to-wit, the above named foreman and eleven others was duly selected, impaneled and sworn who
        having heard the indictment read and the Defendant's plea thereto, and having heard the evidence submitted and
IS      having been duly charged by the Court, retired in charge ofthe proper officer to consider the verdict, and afterward
        were brought into Court by the proper officer, the Defendant and Defendant's counsel being present and returned
        into open Court the verdict set forth above, which was received by the Court and is here now entered upon the
        minutes of the Court as shown above.
;i»
 ft
                                                                                                                               r
II?
1*5            Thereupon, the Defendant elected to have punishment assessed by the above shown assessor ofpunishment
        and when shown above that the indictment contains enhancement paragraph (s), which were not waived, and al leges
        Defendant to have been convicted previously of any felony or offenses for the purpose of enhancement of
        punishment, then the Court asked Defendant ifsuch allegations were true or false and Defendant answered as shown
        above And when Defendant is shown above to have elected to have the jury assess punishment, such jury was
        called back into the box and heard evidence related to the question of punishment and having been duly char«ed
        by the Court, they retired to consider such questions, and after having deliberated, they returned into Court the
        verdict shown under punishment above; and when Defendant is shown above to have elected to have punishment
        fixed by the Court, in due form of law further evidence was heard by the Court relative to the question of
       punishment and the Court fixed the punishment of the Defendant as shown above.




                                                                                                                               i



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       PAGE TWO OF FIVE




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        CAUSE NO. 376! 2CR
        THE STATE OF TEXAS VS DAVID BLAINE MCKINI FY


           '"S, II EREFORE. CONSIDERED and ORDERED by the Court, in the Court, in presence of the
  Defendant that the said judgment be, and the said is hereby in all things approved and confirmed, and that the
  Defendant ,s adjudged guilty of the offense set forth above as found by the verdict of the jurv. as set forth above
  and said Defendant be punished in accordance with the Jury Verdict or the Court's Findings/as shown above and
  that the Defendant is sentenced to aterm ofimprisonment or fine or both, as set forth above, and that said Defendant
  be delivered by the Sheriff to the Director ofthe Department ofCriminal Justice, Institutional Division ofthe State
  of Texas, or other person legally authorized to receive such convicts for the punishment assessed herein, and the
  said Defendant shall be confined for the above named term in accordance with the provisions oflaw «ovemin« such I
I punishments and execution may issue as necessary,                                                    w          "

s               And the said Defendant is remanded to jail until said Sheriff can obey the directions of this judgment.
I
               SIGNED THIS                     DAY OF                   %                     2014.
w

:^                                                                                                                             I
i
                                                                      BOB CARROLL
1                                                                    Judge Presiding                                           I
                                                                                                                               ¥

                                                                                                                               I
       Notice of Appeal: NONE




      PAGE THREE OF FIVE




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