                          PD-1280-15

                           Cause No. ________________

                TO THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS

             ------------------------------------------------------------------

                            CHAD EVERETT ERVIN
                                       Petitioner

                                           VS.

                             THE STATE OF TEXAS
                                        Respondent.

             ------------------------------------------------------------------

Petition in Cause No. CR-17,434 from the 271st Judicial District Court of Wise
County, Texas and Cause No. 02-14-00251-CR from the Court of Appeals for the
                  Second Supreme Judicial District of Texas.

             ------------------------------------------------------------------

               PETITION FOR DISCRETIONARY REVIEW

             ------------------------------------------------------------------



                                                  Paul Belew
                                                  S.B.N.: 00794926
                                                  P.O. Box 1026
     September 30, 2015                           Decatur, Texas 76234
                                                  (940) 627-6400
                                                  (940) 627-6408 (facsimile)
                                                  ATTORNEY FOR PETITIONER,
                                                  CHAD EVERETT ERVIN


              PETITIONER REQUESTS ORAL ARGUMENT
                         TABLE OF CONTENTS

TABLE OF CONTENTS                            I

INDEX OF AUTHORITIES                         ii

STATEMENT REGARDING ORAL ARGUMENT            2

STATEMENT OF THE CASE                        2

STATEMENT OF THE PROCEDURAL HISTORY          2

GROUNDS FOR REVIEW                           3

ARGUMENT AND AUTHORITIES                     3

PRAYER FOR RELIEF                            8

CERTIFICATE OF SERVICE                       9




                                -I-
                          INDEX OF AUTHORITIES

Cases:

Ervin v. State,
       No. 02-14-00251-CR (August 27, 2015) (Memorandum Opinion)   3, 4, 5




                                      -II-
                                 NO. ________________

                                               IN THE

                                     COURT OF CRIMINAL

                                              APPEALS

                                             OF TEXAS

                    ------------------------------------------------------------------

                                    CHAD EVERETT ERVIN

                                                  VS.

                                     THE STATE OF TEXAS

                    ------------------------------------------------------------------

 Petition in Cause No. CR-17,434 from the 271st Judicial District Court of Wise County,
    Texas and Cause No. 02-14-00251-CR from the Court of Appeals for the Second
                          Supreme Judicial District of Texas.

==============================================================
              PETITION FOR DISCRETIONARY REVIEW
==============================================================

TO THE HONORABLE COURT OF CRIMINAL APPEALS

       COMES NOW Chad Everett Ervin, (Hereinafter, "Petitioner") by and through his

attorney of record and files this, his Petition for Discretionary Review and herein respectfully

requests this Court to grant discretionary review of the above named cause for the reasons

set forth herein:




                                                   -1-
                  STATEMENT REGARDING ORAL ARGUMENT

       Petitioner requests oral argument to the extent it would be helpful to the Court.

                              STATEMENT OF THE CASE

       Defendant Chad Ervin was indicted in Cause Number CR-17,434 alleging that on or

about September 2, 2013 he committed Evading Arrest or Detention with a Vehicle. R.R.

2:29:3-30:8.

       The case proceeded to trial on May 6, 2014. R.R. 1:1. On May 7, 2013 the jury

returned a verdict in which it found Chad Ervin guilty. R.R. 3:27:13-20. A judgment was

entered sentencing Defendant to confinement in the Institutional Division of the Texas

Department of Criminal Justice for ten years. Defendant thereafter filed an Affidavit of

Indigency and his Notice of Appeal.

       The case was then appealed to the Second Court of Appeals. The Court of Appeals

dismissed Petitioner's Appeal for want of jurisdiction in an unpublished opinion. See

Appendix.

       This Petition for Discretionary Review ensued.

                 STATEMENT OF THE PROCEDURAL HISTORY

       Mr. Ervin indicted in the 271st Judicial District Court, Wise County, Texas on charges

of Evading Arrest or Detention with a Vehicle. R.R. 2:29:3-30:8. On May 6, 2014 the case

was tried before a jury in the 271st Judicial District Court for Wise County, Texas, Judge John

Fostel presiding. See, e.g., R.R. 1:1.


                                              -2-
       On May 7, 2014 the jury returned a verdict in which it found Chad Ervin guilty. R.R.

3:27:13-20.     A judgment was entered sentencing Defendant to confinement in the

Institutional Division of the Texas Department of Criminal Justice for ten years.

       The Court of Appeals for the Second Supreme Judicial District of Texas issued a

Memorandum Opinion on August 27, 2015. No Motion for Rehearing was filed. The instant

Petition for Discretionary Review followed within thirty days.

                               GROUNDS FOR REVIEW

1.     The Court of Appeals Erred In Dismissing Mr. Ervin's Appeal For Want Of

Jurisdiction.

                          ARGUMENT AND AUTHORITIES

       Mr. Ervin was charged with, tried for and convicted of Evading Arrest or Detention

With a Vehicle. Ervin v. State, No. 02-14-00251-CR (August 27, 2015) (Memorandum

Opinion) *2. On May 7, 2014 the jury returned a verdict of Guilty and proceeding were

recessed for, inter alia preparation of a Presentence Investigation Report. Ervin, *2, 3. A

sentencing hearing was scheduled for May 27, 2014. Id. Although Mr. Ervin was returned

to Court at that time and the Court indicated the sentence it would impose, Mr. Ervin was

inadvertently returned to the county jail prematurely.

       The Court of Appeals, upon reviewing the Reporter's Record, concluded that the Court

had imposed sentence on May 27, 2014 and therefore Appellant's Notice of Appeal filed on

June 30, 2014 was not timely. Ervin, *2, 3.


                                              -3-
       The Court acknowledged that there were inconsistencies in the record before it

regarding that date of certain events. It nevertheless, without resolved whose inconsistencies

against Appellant concluding "The reporter’s record and the judgment in the clerk’s record

establish that the trial court sentenced appellant in open court on May 27, 2014." Ervin, *5.

The Court's own opinion, however, casts doubt on its conclusion.

       Both the Clerk's Record and an unchallenged Affidavit submitted to the Court

provided

       The end of the clerk’s record contains a document that chronologically lists
       “EVENTS & ORDERS OF THE COURT”; this is the same document referenced in
       the affidavit that appellant submitted to this court. The document states that the trial
       court held the sentencing hearing on May 27, 2014 but appears to indicate that the
       sentence was imposed and began to run on May 29 . . .

Ervin, *3, n.7 (emphasis added). A sentence begins to run when it is imposed.

       The Court of Appeals dismissed this particular document arguing:

       The document, however, also appears to state that appellant pled not guilty and was
       convicted by the jury on May 29, 2014, when those events actually occurred on earlier
       dates. The remainder of the clerk’s record and the volume of the reporter’s record
       in which the trial court sentenced appellant provide clear evidence that sentencing
       occurred on May 27, 2014 and that appellant was present in court for sentencing.

Ervin, *4, n. 7.

       As noted previously by the Court, however, Mr. Ervin's sentencing was scheduled for

May 27, 2014. Ervin, *3. Indeed, a Judgment was prepared in advance and bore that date

and in fact would be used some two days later. Mr. Ervin, however, was removed removed

from the Courthouse prematurely and sentencing was not completed until May 29, 2014.


                                              -4-
Ervin, *3-4. That is the date the Clerk's record shows his sentence to begin.

       The Court erred in sua sponte resolving factual disputes against the Appellant, when

the facts were not disputed and the Court's previous ruling was undisputed.

                                PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Chad Evrvin respectfully requests

that the Court of Criminal Appeals grant Appellant's Petition for Discretionary Review and

for such other and further relief to which he may show himself to be entitled.

                                          Respectfully submitted,

                                           /s/ Paul Belew
                                          Paul Belew
                                          S.B.N.: 00794926

                                          BELEW & SINGLETON
                                          P.O. Box 1026
                                          Decatur, Texas 76234
                                          (940) 627-6400
                                          (940) 627-6408 (facsimile)

                                          FOR APPELLANT
                                          CHAD ERVIN




                                            -5-
                              CERTIFICATE OF SERVICE

       This is to certify that on this, the 15th day of September, 2015 a true and correct copy
of the above and foregoing document has been forwarded by means of electronic filing as
follows:

       Greg Lowery
       Wise County District Attorney's Office
       Wise County Courthouse
       Second floor
       Decatur, Texas 76234



                                                     /s/ Paul Belew
                                                    Paul Belew




                                              -6-
