                                                                       PD-0572-14, PD-0573-14
                                                                     COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
May 11, 2015                                                       Transmitted 5/11/2015 12:29:24 PM
                                                                      Accepted 5/11/2015 1:28:21 PM
                                                                                      ABEL ACOSTA
                            CAUSE NO. PD-0573-14                                              CLERK

                  IN THE COURT OF CRIMINAL APPEALS
                              OF TEXAS

                 ***************************************

                           PATRICIA DONALDSON,
                                       Appellant

                                         v.

                            THE STATE OF TEXAS

                 ***************************************

                                On Appeal from
                        The 282nd Judicial District Court
                              Dallas County, Texas
                       Trial Court Cause No. F10-00435-S
                                       and
           The Court of Appeals for the Fifth District of Texas at Dallas
                     Appellate Cause No. 05-13-00599-CR

                 ***************************************

                   BRIEF OF APPELLANT
    UPON GRANTING OF PETITION FOR DISCRETIONARY REVIEW

                 ***************************************

                                              Lawrence B. Mitchell
                                              SBN 14217500
                                              P.O. Box 797632
                                              Dallas, Texas 75379
                                              Tel. No.: 214.870.3440
                                              E-mail: judge.mitchell@gmail.com

                                              ATTORNEY FOR APPELLANT
                         IDENTITY OF PARTIES

      (1) The Honorable Andy Chatham, former Judge of the 282nd District Court
(and the Honorable Amber Givens, current Judge, 282nd District Court), 133 No.
Riverfront Blvd., Dallas, Texas 75207.

      (1) Anthony Green, trial attorney for appellant: 2214 Main Street, Dallas,
Texas 75202.

       (2) Assistant Public Defender, Kathleen A. Walsh, attorney for appellant on
direct appeal: 133 No. Riverfront Blvd., Dallas, Texas 75207.

       (3) Patricia Donaldson, appellant, by and through her attorney of record on
Petition for Discretionary Review: Lawrence B. Mitchell, P.O. Box 797632, Dallas,
Texas, 75379.

     (4) The State of Texas, at trial, on appeal and on Petition for Discretionary
Review:
           Craig Watkins, former Criminal District Attorney and Susan Hawk,
           current Criminal District Attorney, Dallas County, Texas;

            Trial Attorneys:

            Assistant District Attorneys Jacob Harris and Gregory Long;

            Appeal and Petition for Discretionary Review:

            Assistant District Attorney Lori Ordiway, her designated representative,
            or Assistant District Attorney Alexis E. Hernandez: all located at the
            Frank Crowley Courts Building, 133 North Riverfront Blvd., Dallas,
            Texas 75207.

      (5) The State Prosecuting Attorney, Lisa B. McMinn or her designated
representative, Austin, Texas.




                                         i
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.............................................................i

INDEX OF AUTHORITIES......................................................................................ii

TABLE OF CONTENTS..........................................................................................iii

STATEMENT OF THE CASE.................................................................................2

ISSUE PRESENTED.................................................................................................3

STATEMENT OF FACTS........................................................................................3

SUMMARY OF THE ARGUMENT ......................................................................8

ARGUMENT AND AUTHORITIES........................................................................9

        APPELLANT’S ISSUE...................................................................................9

                 APPELLANT’S SENTENCE OF TEN (10) YEARS
                 IMPRISONMENT IS VOID BECAUSE IT IS OUTSIDE
                 THE RANGE OF PUNISHMENT FOR A STATE JAIL
                 FELONY


PRAYER FOR RELIEF...........................................................................................18

CERTIFICATE OF WORD-COUNT COMPLIANCE...........................................19

CERTIFICATE OF SERVICE................................................................................19




                                                       ii
                        INDEX OF AUTHORITIES

CASES:

   Almond v. State, 536 S.W.2d 377 (Tex. Crim. App. 1976)..........................10

   Brown v. State, No. 01–11–00951–CR, 2013 WL 709112 (Tex. App. -
   Houston [1st Dist.] February 26, 2013) (not designated for publication)....14

   Ex parte Pena, 71 S.W.3d 336 (Tex. Crim. App.2002)................................17

   Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006)..............................17

   Hackleman v. State, 919 S.W.2d 440 (Tex .App. - Austin,1996)................16

   Harris v. State, No. 05-02-01728-CR, 2005 WL 639388 (Tex. App. - Dallas
   March 21, 2005) (not designated for publication)........................................13

   Holt v. State, No. 06-05-00259-CR, 2006 WL 2129133 (Tex. App. -
   Texarkana August 01, 2006) (not designated for publication).....................13

   Howell v. State, 563 S.W.2d 933 (Tex. Crim. App.1978)............................12

   Johnson v. State, Nos. 05–10–00465–CR, 2011 WL 3484801(Tex. App. -
   Dallas August 10, 2011) (not designated for publication)...........................13

   Leos v. State, No. 08-07-00340-CR, 2009 WL 1019491(Tex. App. - El Paso
   April 16, 2009) (not designated for publication).........................................13

   Lewis v. State, No. 08-09-00052-CR, 2010 WL 2396823 (Tex. App.-El Paso
   June 16, 2010) (not designated for publication)...........................................13

   Melendez v. State, No. 08-09-00225-CR, 2010 WL 4983427 (Tex. App. - El
   Paso December 08, 2010) (not designated for publication).........................13

   Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App.2003)..............................17


                                            iii
Morrow v. State, No. 06–10–00125–CR, 2011 WL 882839 (Tex. App. -
Texarkana March 15, 2011) (not designated for publication).....................13

Petersimes v. State, No. 05–10–00227–CR, 2011 WL 2816725 (Tex. App. -
Dallas July 19, 2011) (not designated for publication).................................13

Sparks v. State, No. 06–02–00069–CR, 2003 WL 943105 (Tex. App. -
Texarkana March 10, 2003) (not designated for publication)......................12

State v. Aguilar, 260 S.W.3d 169 (Tex. App. - Houston [1st Dist.] 2008)..16

State v. Moreno, 807 S.W.2d 327 (Tex. Crim. App.1991)...........................15

Taylor v. State, 886 S.W.2d 262 (Tex .Crim. App.1994).............................17

Torres v. State, 391 S.W.3d 179 (Tex. App. - Houston [1st Dist.] 2012).....12

United States v. Sanges, 144 U.S. 310,
      12 S.Ct. 609, 36 L.Ed. 445 [1892])....................................................15

White v. State, No. 05-01-01620-CR, 2003 WL 22718787 (Tex. App. -
Dallas November 19, 2003) (not designated for publication).....................13

Wilburn v. State, No. 01-07-00830-CR, 2008 WL 2611933 (Tex. App. -
Houston [1st Dist.] July 03, 2008).................................................................13




                                             iv
STATUTES:

TEXAS PENAL CODE:

    TEX. PENAL CODE ANN. §37.10....................................................................2

    TEX. PENAL CODE ANN. §12.425 (b)...........................................................2

TEXAS CODE OF CRIMINAL PROCEDURE:

    TEX .CODE CRIM. PROC. ANN. art. 44.01...................................................17

TEXAS RULES OF APPELLATE PROCEDURE:

    TEX. R. APP. PROC. 9.4 (i) (1)......................................................................19

    TEX. R. APP. PROC. 9.4 (i) (3)......................................................................19

    TEX. RULE. APP. PROC. 70.1.........................................................................2




                                                  v
                           CAUSE NO. PD-0573-14

                 IN THE COURT OF CRIMINAL APPEALS

                                  OF TEXAS

                ***************************************

                          PATRICIA DONALDSON,

                                   Appellant

                                        v.

                           THE STATE OF TEXAS

                ***************************************

                               On Appeal from
                       The 282nd Judicial District Court
                             Dallas County, Texas
                      Trial Court Cause No. F10-00435-S
                                      and
          The Court of Appeals for the Fifth District of Texas at Dallas
                    Appellate Cause No. 05-13-00599-CR

                ***************************************

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      COMES NOW PATRICIA DONALDSON, Appellant herein, and respectfully

submits this her brief of appeal from her conviction for the offense of Tampering

with Governmental Record. Judgment was rendered in the 282nd Judicial District

Court , Dallas, County, Texas, Judge Andy Chatham presiding.

                                       -1-
                       STATEMENT OF THE CASE

      Appellant was indicted for the offense of Tampering with Governmental

Record in violation of TEX. PENAL CODE ANN. §37.10 The offense was classified

as a State Jail Felony offense. The indictment also alleged two prior, sequential,

felony convictions, enhancing the penalty range to that of a Second Degree Felony

offense. TEX. PENAL CODE ANN. §12.425 (b). Appellant was convicted after

entering an “open plea” of guilty before the court. Appellant entered a plea of

“True” to each enhancement allegation.         The district court found one of the

enhancement paragraphs “True” but made no finding as to the second paragraph.

Punishment was assessed at confinement for ten (10) years in the penitentiary. Notice

of appeal was timely given.

      On April 15, 2014, the Court of Appeals issued its opinion finding the

evidence insufficient to prove one of the enhancement allegations rendering the

sentence assessed illegal, reversing and remanding for a new punishment hearing. On

June 4, 2014, the Court of Appeals granted the State’s Motion for rehearing,

withdrew its prior opinion, and affirmed appellant’s conviction and sentence.

      Appellant’s pro se Petition for Discretionary Review was granted on February

4, 2015. Briefs have been ordered. See TEX. RULE. APP. PROC. 70.1.



                                         -2-
                            ISSUE PRESENTED

            APPELLANT’S SENTENCE OF TEN (10) YEARS
            IMPRISONMENT IS VOID BECAUSE IT IS OUTSIDE
            THE RANGE OF PUNISHMENT FOR A STATE JAIL
            FELONY
                         STATEMENT OF FACTS

      Appellant was indicted for the offense of Tampering with Governmental

Record in violation of TEX. PENAL CODE ANN. §37.10. [CR 1 - 5]. The offense

was classified as a State Jail Felony offense. However, the indictment also alleged

two prior, sequential, felony convictions enhancing the penalty range to that of a

Second Degree Felony offense. TEX. PENAL CODE ANN. §12.425 (b). The first

conviction, and second enhancement paragraph, was for a Federal Mail Fraud case.

The second conviction, and first enhancement paragraph, was for Credit Card Abuse.

      Prior to accepting appellant’s plea the trial court admonished her as to the

range of punishment both orally and in writing. (CR 1- 19); [RR 2 - 6]. This

admonishment was incorrect as to the punishment range. However, the court did

subsequently properly admonish her as to the punishment range as indicted: the

punishment range for a Second Degree Felony offense. Appellant pled “True” to both

enhancement paragraphs. [RR 2 - 11].

      During the taking of testimony, the trial court began to express some doubts

as to the viability of the Mail Fraud conviction for enhancement purposes. The court

                                        -3-
made the following comments on the record:

            A brief off-the-record conversation was had regarding one
            of the enhancement paragraphs that was used when the --
            when the witness indicated a six-month sentence, which
            comes from the Feds may or may not qualify as-- as a -- a
            felony under state law, so the question that -- yes, she pled
            true, but it's -- in fact, it does not qualify as a -- as a
            felony, which it may not under the federal guidelines, and
            it may be something where the Court would have to treat it
            either as a misdemeanor conviction, or perhaps as a state
            jail conviction, as being the closest correlation to State law.

            We’re going to see what that may do to the punishment
            range. The punishment range may change.

            Ms. Donaldson, it means that the punishment range, it
            wouldn't go up, it simply means that it may be that the
            Court admonished you improperly as to the proper
            punishment range. Again, it's not something that would
            increase it. It may decrease the punishment range. So that
            would be to your benefit. But we'll go from there and see,
            okay?

[RR 3 - 39 - 40]. The State made no comment at the time about the court’s concerns.

      After both sides rested and closed, argument commenced. At that point the

court again expressed his concern about the propriety of using the Mail Fraud

conviction for enhancement purposes:

            She went -- what happened is this -- and I needed to make
            sure and I've got this -- the info on this. In regards to the
            enhancement paragraphs, I don't know if this counts as
            two. And the reason I think that the federal time could
            count as one -- one enhancement paragraph and the -- the

                                          -4-
             State time could count as the other. But the sentences were
             running together or concurrently. And that's my question --
             legal question is going to be is, can sentences that run
             together count as separate enhancement paragraphs?
             Meaning, if you go to prison, to TDC twice for two
             burglary of a habitation cases, do you -- you cannot stack
             those. That's not two separate trips. In this case, it was
             every ones’ intention that the sentences were done
             together. On the Federal paperwork and on the State
             paperwork, the sentences run together.

             So we'll address that issue in a moment, but I wanted to at
             least tell -- give everyone a preview of that issue, because
             it's something that matters. So let’s -- let's find out
             something on -- on that. But I wasn't sure until I looked at
             it again today.

[RR 4 - 9 10]. Once again, there was no response from the State. The State did not

address the issue, which was clearly of some importance to the court, during its

closing argument. [RR 4 - 13 - 19].

      When the court announced the sentence in this case, a sister PDR [No. 0573-

14], and three other cases tried with the instant cause, his position was quite clear:

he would make no finding as to “True” or “Not True” for the Mail Fraud conviction

alleged for enchantment:

             Each side having rested and closed, the defendant having
             entered pleas of guilty and pleas of true to the
             enhancement paragraphs, the Court has accepted the
             pleas of guilty and -- and the pleas of true to the
             enhancement paragraphs in all of the matters before the
             Court. The Court has considered the evidence before

                                         -5-
me. The Court has considered the arguments of counsel.

Court announces the verdict as such: In Cause Number
F10-00448, [the instant PDR] the Court finds Ms.
Donaldson guilty of the offense of tampering with
government records. The Court finds the first enhancement
paragraph to be true. Through a lengthy discussion
regarding the second enhancement paragraph, the
Cause Number 390-CR-00193-T, the Court declines to
make a finding in that -- in that Cause. Court is
sentencing Ms. Donaldson to 10 years TDC. No fine.

Cause Number F10-00433, [the sister cause] the
defendant’s found guilty. First enhancement paragraph is
found to be true. The Court's makes no finding in Cause
Number 390-CR-0193-T (the Mail Fraud enhancement)
The defendant is sentenced to 10 years TDC. No fine.

Cause Number F10-00447, defendant is found guilty. The
first enhancement paragraph is found to be true. There’s
no finding on Cause Number 390-CR-00193-T (the Mail
Fraud enhancement). The defendant is sentenced to 10
years TDC. No fine.

In Cause Number F10-00435, the defendant's found guilty.
The first enhancement paragraph is -- is found to be true.
There’s no finding in Cause Number 390-CR-00193-
(the Mail Fraud enhancement). This is the social security
card case. In that case, the defendant is sentenced to five
years TDC with no fine.

And in Cause Number F11-00266, the defendant is found
guilty and the first enhancement paragraph is found to be
true. There’s no finding in Cause Number 390-CR-
00193-T (the Mail Fraud enhancement). This is the falsely
holding oneself out as a lawyer. In that case, the defendant
is sentenced to five years TDC. No fine. [

                            -6-
             RR 4 - 19 - 20]; [emphasis supplied].

      If these statements were not sufficient to make known the court’s ruling with

regard to the Mail Fraud enhancement paragraph, subsequent actions by the court are.

On the docket sheet in this cause, and in the sister PDR, the court wrote in bold

handwriting the he was no making finding on this enhancement allegation. [CR 1 -

23]. Lastly, the judgment reflects a finding of “N/A for the second enhancement

paragraph. There is no room for interpretation here.

      Appellant was sentenced to penitentiary time in excess of that applicable for

conviction of a State Jail Felony offense. Apparently, the trial court believed that a

finding of “True” to a single enhancement allegation authorized such a punishment.

Most definitely, it does not.




                                         -7-
                       SUMMARY OF THE ARGUMENT

      Appellant waived a jury trial and entered a plea of guilty to a State Jail felony

offense with the penalty range being enhanced by two prior, sequential, felony

convictions. Appellant entered a plea of “True” to both enhancement allegations.

After considering the pleas of true and the evidence presented, the trial court

expressed concern that there had not been sufficient proof of the sequential nature

of the two convictions. The State was aware of the court’s concerns but presented no

further evidence or argument in response to these concerns.

      Based upon the foregoing, the trial court entered a “True” finding as to one

enhancement paragraph but made no finding as to the second. The decision of the

trial court was quite clear because he made his ruling on the record, on the docket

sheet, and in the judgment.

      Despite the unequivocal ruling by the trial court, the appellate court found that

there was an “implied finding” of “True” as to the second paragraph. This “implied

finding” was contrary to the trial court’s explicit decision to make no finding on one

of the enhancement paragraphs. Without proper enhancement, a State Jail felony

offense has a prescribed sentencing range. Since the sentence assessed in this cause

was greater than that allowed by law, the sentence is illegal and unenforceable.




                                         -8-
                       ARGUMENT AND AUTHORITIES

                           APPELLANT’S ISSUE NO. I

             APPELLANT’S SENTENCE OF TEN (10) YEARS
             IMPRISONMENT IS VOID BECAUSE IT IS OUTSIDE
             THE RANGE OF PUNISHMENT FOR A STATE JAIL
             FELONY

      Appellant entered an open plea before the court without the benefit of a plea

bargain.   She pled guilty to the indictment and “True” to both enhancement

allegations. The court accepted the plea of guilty and the pleas of “True.” Even

though the pleas of “True” were legally sufficient to prove the enhancement

allegations, they are not dispositive if other evidence leads to the conclusion that one

or both allegations are not supported by or are contradicted by the evidence presented.

In the instant cause, the trial court concluded that the State had not sufficiently proven

sequential conviction of two felonies. The State argued on appeal, successfully, that

the reviewing court could overrule the decision by the trial court on this matter. The

State’s argument was, essentially, either and informal appeal or an informal cross-

point on appeal.

      Early on in the plea hearing, the court noted that it was concerned that the

State’s evidence would not prove sequential convictions. The State never responded

on record. The court again, before sentencing, advised the State of his concerns.


                                           -9-
Again, no comment or objection by the State. When the court announced his decision

to make no finding as to one of the enhancement allegations, the State did not object

or complain. The State waited until the appeal to ask the appellate court to infer a

“True” finding as to the second enhancement allegation despite what was reflected

by the court’s on-record ruling, despite the court’s docket entry, and despite the

written judgment of the court.

      The case authority has established the right of the appellate court to infer a

“True” finding when the record is silent as to the trial court’s decision and other

factors indicate that such would be appropriate. Under such a holding, the record is

made to speak the truth: although silent on the finding of “True,” other data and

information clearly establishes that such a finding was made by the trial court. But no

case has ever held that the appellate court can imply a finding of “True” when the

record establishes beyond question that the finding was not made by the trial court.

      In Almond v. State, 536 S.W.2d 377, 379 (Tex. Crim. App. 1976) the

indictment alleged two prior convictions for enhancement but apparently the State

abandoned one allegation and proved only one prior conviction.              The court

admonished the defendant that he was charged with a third degree felony but that as

enhanced his punishment would be assessed within the range for a second degree

felony offense: not less than two years nor more than twenty years.

                                         -10-
      The trial court noted that the defendant and the State had reached a plea bargain

agreement for a sentence of confinement for twenty years, a sentence available only

if the punishment range had been enhanced, and the court would follow the plea

bargain. However, the court failed to make an express finding of “True” on the record

as it should have. Without reference to any prior authority, this Honorable Court held

that it was “obvious” from the trial record that the defendant’s sentence of twenty

years was only possible if the penalty range had been enhanced by a prior conviction.

The judgment and sentence were accordingly reformed to reflect enhancement of

punishment by virtue of a prior conviction.

      There appear to have been multiple factors that led this Court to enter an

“implied finding” of true, as subsequent opinions have characterized the decision.

First, although the opinion does not say that the defendant pled “True,” it is noted that

the defendant testified and admitted the prior conviction. Second, the defendant was

admonished that his the penalty range had been enhanced from the third degree

penalty range with a maximum sentence of confinement for ten years to a second

degree penalty range up to a maximum of twenty years confinement. Third, the

sentence was the product of a plea bargain. Fourth, the twenty year sentence was only

possible if the sentence range had been enhanced. Fifth, and appellant believes most

important, the record was silent as to the trial court’s finding. As the opinion puts so

                                          -11-
succinctly, it was “obvious” that a “True” finding had been made by the trial court.

See and compare: Howell v. State, 563 S.W.2d 933, 936 (Tex. Crim. App.1978).

      In the decision in Torres v. State, 391 S.W.3d 179, 183 (Tex. App. - Houston

[1st Dist.] 2012), an opinion exemplifying the “implied finding” doctrine, the

defendant argued on appeal         that since there was no plea recorded for the

enhancement allegations, the trial court made no findings on record whether the

allegations in the enhancement paragraphs were true, and the docket sheet failed to

reflect the finding on the enhancement, the sentence assessed was improper.

However, the trial record showed that the defendant was admonished that his State

Jail Felony punishment range had been enhanced to that of a second degree felony

and the sentence assessed was in fact within that range. The appellate court held that

it had the necessary data and information to make an implied finding because “...the

record establishe(d) the truth of that allegation.” The trial record did not reflect that

the trial court had specifically ruled adversely to the State on the enhancement issue.

Since the Almond decision, the intermediate appellate courts have often relied on the

“implied finding” doctrine to determine that a “True” finding or findings were in fact

made by the trial court even though the record was in some respect silent as to

findings by the trial court on enhancement allegations. See the following:

             Sparks v. State, No. 06–02–00069–CR, 2003 WL 943105

                                          -12-
(Tex. App. - Texarkana March 10, 2003) (not designated
for publication)

White v. State, No. 05-01-01620-CR, 2003 WL 22718787
(Tex. App. - Dallas November 19, 2003) (not designated
for publication)

Harris v. State, No. 05-02-01728-CR, 2005 WL 639388
(Tex. App. - Dallas March 21, 2005) (not designated for
publication)

Holt v. State, No. 06-05-00259-CR, 2006 WL 2129133
(Tex. App. - Texarkana August 01, 2006) (not designated
for publication)

Wilburn v. State, No. 01-07-00830-CR, 2008 WL 2611933
(Tex. App. - Houston [1st Dist.] July 03, 2008)

Leos v. State, No. 08-07-00340-CR,     2009 WL
1019491(Tex. App. - El Paso April 16, 2009) (not
designated for publication)

Lewis v. State, No. 08-09-00052-CR, 2010 WL 2396823
(Tex. App.-El Paso June 16, 2010) (not designated for
publication)

Melendez v. State, No. 08-09-00225-CR, 2010 WL
4983427 (Tex. App. - El Paso December 08, 2010) (not
designated for publication)

Morrow v. State, No. 06–10–00125–CR, 2011 WL 882839
(Tex. App. - Texarkana March 15, 2011) (not designated
for publication)

Petersimes v. State, No. 05–10–00227–CR, 2011 WL
2816725 (Tex. App. - Dallas July 19, 2011) (not designated
for publication)

                           -13-
             Johnson v. S ta te, No s. 0 5 –10–00465–CR,
             05–10–00608–CR, 2011 WL 3484801(Tex. App. - Dallas
             August 10, 2011) (not designated for publication)

             Brown v. State, No. 01–11–00951–CR, 2013 WL 709112
             (Tex. App. - Houston [1st Dist.] February 26, 2013) (not
             designated for publication)

While these cases may differ as to the factual underpinnings which led to the “implied

finding” of “True” to enhancement allegations, they all share one salient fact: the

record was silent as to the finding(s) of the trial court. It is in the instant cause, for

the first time, that a reviewing court has used the “implied finding” doctrine to

overturn an on-the-record determination that the trial court did not enter a “True”

finding.

      In resolving issues similar to the one presented herein, the reviewing courts

have reached its “implied finding” conclusion, occasionally, because the actual

sentence could only have been assessed if the trial court had found the enhancement

allegation(s) “True.” For example suppose the defendant was charged with a third

degree felony offense with a maximum penalty of ten (10) years confinement.

However, the indictment also alleged a single prior felony conviction increasing the

maximum penalty to twenty (20) years. If the record is silent as to the finding of the

court on the enhancement allegation, it is only logical, or “obvious,” to assume that

the court had sub silento made a “True” finding if it assessed a sentence in excess of

                                           -14-
ten (10) years.

      This “logic” does not inexorably apply to the instant cause. The indictment

alleged two prior convictions raising the penalty range from that applicable to a State

Jail Felony offense to that of a second degree felony: two to twenty years

confinement. However, when the trial court found only one enhancement paragraph

“True,” he may have mistakenly believed that the punishment range was reduced, not

the that of a State Jail Felony, but to the penalty range of a third degree felony.

Therefore, a penitentiary sentence of five or ten years, as was assessed in this and the

sister PDR, would have been allowed by law.

      Although it appears that the State argued successfully in the court below that

it was merely asking that a “True” finding be “implied” on the second enchantment

paragraph, this is not so. The trial court unambiguously chose, rightly or wrongly, to

make no finding on this issue. What the State has truly argued is that the trial court’s

ruling adverse to it should be overruled by the appellate court. Thus the State is

attempting to do informally what it cannot do directly: either appeal the decision of

the trial court or file a “cross point” on appeal because appellant appealed.

      Under long established common law rules the State has no right to appeal an

adverse criminal judgment. The Supreme Court of the United States has definitively

held that the government is not permitted to take an appeal in a criminal case without

                                          -15-
express statutory authority. State v. Moreno, 807 S.W.2d 327, 330 (Tex. Crim.

App.1991) (citing United States v. Sanges, 144 U.S. 310, 313–18, 12 S.Ct. 609,

610–12, 36 L.Ed. 445 [1892]).

      In State v. Aguilar, 260 S.W.3d 169, 171 -172 (Tex. App. - Houston [1st Dist.]

2008) the State attempted to appeal the trial court’s finding of “Not True” to an

enhancement paragraph. The court held that there was no statutory authority for the

State to appeal this adverse ruling and therefore the court had no jurisdiction over the

State’s appeal. TEX .CODE CRIM. PROC. ANN. art. 44.01.

      In Hackleman v. State, 919 S.W.2d 440, 442 (Tex .App. - Austin,1996) the

defendant waived a jury trial, pled not guilty , but was found guilty of the offense

charged. The punishment, enhanced by proof to the satisfaction of the trial court, of

only one of the two prior felony convictions alleged for enhancement, was assessed

at imprisonment for sixteen(16) years.     The State cross appealed arguing that the

trial court erred in the punishment assessed because it had proven two prior

convictions thus requiring a minimum punishment of imprisonment for twenty-five

years. The State claimed that the trial court erred in finding the enhancement

evidence insufficient.

      The Hacklelman court held that the threshold issue to be determined was

whether the State had the right to cross appeal on that issue, noting that the State has

                                          -16-
a limited, statutory right of appeal. TEX. CODE CRIM. PROC. ANN. art. 44.01.

Ultimately the court held that the trial court’s ruling that the enhancement allegation

in paragraph III of the indictment were “Not True” was a finding of fact that

constituted appellant’s acquittal of the allegations in that paragraph. It was noted

that a finding in the nature of an acquittal is not appealable by the State under

Article 44.01. See Taylor v. State, 886 S.W.2d 262, 266 (Tex .Crim. App.1994)

(holding a pretrial determination of entrapment defense favorable to the accused is

in the nature of an acquittal and as such is not appealable by the State).

      In the instant cause, the trial court clearly and unambiguously - rightly or

wrongly- chose, on the evidence presented, to make no finding as to the second

enhancement paragraph. The ruling of the court of appeals implying otherwise is

simply not supportable. This decision by the trial court on this issue is final and not

subject to review. The State could not appeal this issue nor could the State file a cros-

s point on appeal on this issue.

      In the instant cause appellant was convicted of a State Jail Felony but the

punishment was, improperly, set at confinement in the penitentiary without a finding

of two sequential felony convictions. The sentence was therefore illegal and void.

When a sentence is void, a defendant may complain about it at any time. See Ex parte

Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006); Ex parte Pena, 71 S.W.3d 336

                                          -17-
(Tex. Crim. App.2002). A sentence that is outside the maximum or minimum range

of punishment is unauthorized and therefore illegal. Mizell v. State, 119 S.W.3d 804,

806 (Tex. Crim. App. 2003). This conviction should be reversed and remanded to the

trial court for a punishment hearing restricted to the penalty range for an un-enhanced

State Jail Felony.

                           PRAYER FOR RELIEF

      WHEREFORE, FOR THE FOREGOING REASONS, Appellant prays that

this Honorable Court reverse and remand this conviction to the trial court for a new

punishment hearing.

                                        Respectfully submitted,



                                        /S/ Lawrence B. Mitchell
                                        LAWRENCE B. MITCHELL
                                        SBN 14217500
                                        P.O. Box 797632
                                        Dallas, Texas 75379
                                        Tel. No.: 214.870.3440
                                        E-mail: judge.mitchell@gmail.com

                                        ATTORNEY FOR APPELLANT




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               CERTIFICATE OF WORD-COUNT COMPLIANCE

       The undersigned attorney hereby certifies, in compliance with TEX. R. APP.

PROC. 9.4 (i) (3) that this document contains 3859 words, including all contents

except for the sections of the brief permitted to be excluded by TEX. R. APP. PROC.

9.4 (i) (1).

                                               /s/ Lawrence B. Mitchell
                                               LAWRENCE B. MITCHELL


                         CERTIFICATE OF SERVICE

       The undersigned attorney hereby certifies that a true and correct copoy of the

foregoing brief is being served on the attorney for the Sate of Texas, Lori Ordiway

by e-mail at lori.ordiway@dallascounty.org and the State Prosecuting Attorney at

information@spa.texas.gov on this the10th day of May , 2015.


                                               /s/ Lawrence B. Mitchell
                                               LAWRENCE B. MITCHELL




                                        -19-
