                                                                                    ACCEPTED
                                                                                06-15-00036-CR
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                           7/20/2015 2:01:04 PM
                                                                               DEBBIE AUTREY
                                                                                         CLERK




                                                               FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
                                                        7/20/2015 2:01:04 PM
                             No. 06-15-00036-CR             DEBBIE AUTREY
                                                                Clerk
__________________________________________________________________________

               IN THE SIXTH DISTRICT COURT OF APPEALS
                         AT TEXARKANA, TEXAS
__________________________________________________________________________

                           QUINTON JACKSON
                                                      Appellant,

                                     v.

                          THE STATE OF TEXAS


                    Appealed from the 124th District Court
                            Gregg County, Texas
__________________________________________________________________________

                        BRIEF OF THE APPELLANT
__________________________________________________________________________

                               Clement Dunn
                           State Bar No. 06249300
                          140 East Tyler, Suite 240
                           Longview, Texas 75601
                          Telephone: 903-753-7071
                             Fax: 903-753-8783




                       ORAL ARGUMENT WAIVED
                        IDENTITY OF PARTIES AND COUNSEL

      Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.

1.     Appellant:      Quinton Jackson

2.     Appellant’s Trial Counsel:      Richard Hurlburt
                                       Attorney at Law
                                       222 North Fredonia St.
                                       Longview, TX 75601
                                       TSB No. 10308600

3.     Appellant’s Counsel on Appeal:          Clement Dunn
                                               Attorney at Law
                                               140 E. Tyler Street, Suite 240
                                               Longview, TX 75601
                                               TSB No. 06249300

4.     Attorney for the State:         Zan Brown
                                       Assistant District Attorney, Gregg County
                                       101 East Methvin St., Suite 333
                                       Longview, Texas 75601
                                       TSB No. 03205900




                                                 I
                                                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

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

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

STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED .                  .......................................................... 1

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

SUMMARY OF THE ARGUMENT .                                  ................................................ 3

ARGUMENT ..              .............................................................. 3

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   4

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     5

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                            5




                                                                                      ii
                                        INDEX OF AUTHORITIES

                                                        Cases

Issa v. State, 826 S.W. 2d 159, 161 (Tex. Crim. App. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . 4




                                          Constitutional Provisions

Article 1, Section 10; Texas Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fourteenth Amendment to The United States Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . 3

Article 42.12, Sec. 3d(b), V.A.C.C.P. (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Article 42.12, Sec. 5(b), V.A.C.C.P. (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                          iii
                              STATEMENT OF THE CASE

Offense:       Injury to a Child.

Verdict:       Guilty; Ten (10) years confinement - Texas Department of Criminal Justice -
               Institutional Division

Date of Verdict:       November 24, 2014

Trial Court:   124th District Court, Gregg County, Texas.

       This case involves a criminal prosecution for Injury to a Child. C.R., 58; R.R. 4, at 8.

Based on the Appellant’s plea of guilty, the District Court had initially imposed a sentence

of ten years’ imprisonment, probated for seven years. R.R. 3, at 10. Subsequently, however,

the Court granted the Appellant’s Motion for New Trial, and instead placed the Appellant on

a deferred adjudication community supervision for a period of ten years. C.R., at 68; R.R. 4,

at 4-5. This appeal arises from the District Court’s adjudication of the Appellant’s guilt, and

imposition of a sentence of ten years’ confinement. R.R. 5, at 102.



                   STATEMENT REGARDING ORAL ARGUMENT

       Believing the instant case contains issues capable of resolution on the basis of record

the Appellant respectfully does not request oral argument.



                                    ISSUE PRESENTED

       The Appellant respectfully submits that the District Court erred in failing to hold a

separate hearing on punishment following the decision to adjudicate guilt.




BRIEF OF APPELLANT, QUINTON

                                                                                        PAGE 1
                                STATEMENT OF THE FACTS

        Since this appeal arises from procedural aspects of the case, the Appellant respectfully

submits that this renders a review of the underlying facts of the offense itself, as well as the

initial procedural history, unnecessary. Instead, the pertinent facts of the record entail the

hearing on the State’s Application for Adjudication of Guilt. C.R., at 80; 86 (State’s First

Amended Application for Adjudication of Guilt). At the conclusion of this hearing, the

Appellant’s counsel argued against the adjudication of guilt: “Judge, I would ask the Court to

find the new violations ‘not true’ based on the fact I don’t believe the State has proved by a

preponderance of the evidence that the new violations occurred.” R.R. 5, at 96. Though he

conceded the Appellant had pled “true” to come of the “other” violations (id.), the Appellant’s

counsel concluded:

                  So we’d ask the Court to find the new offense “not true,” modify the probation
                  to whatever the Court deems fit, We would just ask that he not be revoked and
                  sent to prison.
Id., at 97.

        Next the State argued that the Appellant “deserves to be revoked.” Id., at 99. In arguing

for revocations, the State re-emphasized: “So the State’s asking him to be revoked because he’s

earned it.” Id. The record reflects no argument or discussion by the State regarding what the

punishment should be in th event of revocation.

        Finally, the District Court expressed concerns about the Appellant’s conduct, and then

concluded:

                  I adjudicate you guilty. I sentence you to 10 years’ confinement in the
                  Institutional Division of the Texas Department of Criminal Justice.

R.R. 5, at 102.



BRIEF OF APPELLANT, QUINTON

                                                                                         PAGE 2
                              SUMMARY OF THE ARGUMENT

          The District Court erred in failing to hold separate hearings, first on the adjudication

of the Appellant’s guilt and, second, on the disposition in the event of adjudication.



                                          ARGUMENT

          The record reflects that the District Court held a hearing on the State’s Application for

Adjudication of Guilt (see C.R., at 80; 86) on November 24, 2014. R.R. 5. The hearing

concluded on that date. Id. The District Court held no further hearings regarding the

adjudication or disposition.

          As noted above (see Statement of Facts, supra), at the end of that hearing the Court

simultaneously adjudicated the Appellant guilty and sentenced him to ten years’ confinement.

R.R. 5, at 102. Immediately prior to that, both the Appellant’s counsel and the prosecution

representing the State had presented arguments that focused entirely upon whether or not the

Appellant’s community supervision should be revoked. The State did not recommend a

particular sentence in the event of adjudication. Similarly, in asking that the Appellant’s

community supervision not be adjudicated, the counsel for the Appellant made no mention of

what an appropriate sentence, or outcome, might be if the Court did adjudicate the Appellant

guilty.

          Because the Court sentenced the Appellant to prison immediately upon adjudicating him

guilty, the Appellant had no opportunity to present evidence on the issue of sentencing. This

violates the Appellant’s right to Due Process under the Fourteenth Amendment to the United

States Constitution and Due Course of Law under Article 1, Section 10, of the Texas



BRIEF OF APPELLANT, QUINTON

                                                                                           PAGE 3
Constitution. In Issa v. State, 826 S.W. 2d 159, 161 (Tex. Crim. App. 1992), the Court held:

               Today we hold that when a trial court finds that an accused has committed a
               violation as alleged by the State and adjudicates a previously deferred finding
               of guilt, the court must then conduct a second phase to determine punishment.
               As Art. 42.12, Sec. 3d(b), V.A.C.C.P. (1988), provides, "(a)fter an adjudication
               of guilt, all proceedings, including assessment of punishment, pronouncement
               of sentence, granting of probation, and defendant's appeal continue as if the
               adjudication of guilt had not been deferred." See now Art. 42.12, Sec. 5(b),
               V.A.C.C.P. (1990). Thus, based upon the statute, the defendant is entitled to a
               punishment hearing after the adjudication of guilt, and the trial judge must allow
               the accused the opportunity to present evidence.

In the instant case, the record reflects that the District Court held but one hearing; no hearing

on punishment occurred, as is required both statutorily and constitutionally.

       The Appellant respectfully notes that in the instant case his counsel made no objections

to this violation. Similarly in Issa, however, trial counsel also failed to object. Id. In a manner

almost identical to the instant case, the trial court in Issa adjudicated the appellant guilty and

sentenced him to confinement for ten years “in one proclamation.” Id. Under these

circumstances, the Court in Issa held that the “appellant had no opportunity to object to the trial

court’s action until after that action was taken.” Id. The failure of the Appellant’s trial counsel

to object in the instant case arose under the same circumstances presented in Issa and should

be viewed, and excused, in the same light.



                                           PRAYER

       The Appellant respectfully requests this case be reversed and remanded to the District

Court for a hearing on punishment.



                                                       Respectfully submitted,

BRIEF OF APPELLANT, QUINTON

                                                                                           PAGE 4
                                                      __/s/ Clement Dunn_______________

                                                      140 East Tyler Street, Suite 240

                                                      Longview, Texas 75601

                                                      (903) 753-7071 Fax: 903-753-8783

                                                      State Bar No. 06249300



                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this brief was delivered to the Gregg

County District Attorney’s Office, Longview, Texas on this 20th day of July 2015.



                                              __/s/ Clement Dunn_______________



                           CERTIFICATE OF WORD COUNT



       I hereby certify that a total of1362 words are included in this brief.



                                              __/s/ Clement Dunn_______________




BRIEF OF APPELLANT, QUINTON




                                                                                         PAGE 5
