                                                                           ACCEPTED
                                                                       12-15-00010-CR
                                                          TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                  6/23/2015 9:18:05 AM
                                                                         CATHY LUSK
                                                                                CLERK

                                      No oral argument requested

        CASE NO. 12-15-00010-CR                       RECEIVED IN
                                                12th COURT OF APPEALS
                                                     TYLER, TEXAS
                  IN THE                        6/23/2015 9:18:05 AM
                                                     CATHY S. LUSK
     TWELFTH COURT OF APPEALS                            Clerk

               TYLER, TEXAS

    _______________________________

      KELTON DEREK WILSON, Appellant
                  vs.
      THE STATE OF TEXAS, Appellee
    _______________________________

           On Appeal from the
          rd
         3 Judicial District Court
         Henderson County, Texas

    (Trial Court Case Number: C-20,914)

Honorable Judge Mark Calhoon, Judge Presiding


          BRIEF OF APPELLANT


                Linda A. Altier
               Altier Law Offices
               1527 E. Fifth St.
               Tyler, Texas 75701
               Tel: 903-595-4232
               Fax: 903-595-0031
          e-mail: altierlaw@gmail.com
        State Bar of Texas No.: 00783541

    Attorney for Appellant, Kelton Derek Wilson
                   IDENTITIES OF PARTIES AND COUNSEL

State of Texas, Appellee
Prosecutor in Trial Court

Kelton Derek Wilson, Appellant
Defendant in Trial Court

TRIAL COURT COUNSEL

Mr. Mark Hall, Attorney for State
125 N. Prairieville St.
Athens, Texas 75751

Mr. Scott Williams, Attorney for Defendant
100 East Tyler Street,
Athens, Texas 75751


APPELLATE COUNSEL

Linda Altier, Attorney for Appellant
1527 E. Fifth St.
Tyler, Texas 75701

Mark Hall, Attorney for State
125 N. Prairieville St.
Athens, Texas 75751




                                       i
                      TABLE OF CONTENTS

Identity of Parties and Counsel …………………………………………………….i

Index of Authorities ………………………………………………………………iii

Statement of the Case …………………………………………………………….. 2

Issues Presented ……………………………………………………………………3

    POINT OF ERROR:

THE TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING AN
UNADJUDUCATED JUVENILE FELONY OFFENSE IN SENTENCING
DEFENDANT.

Statement of Facts ………..………………………………………………………. 3

Point of Error One Restated. ………………………………………………………3

Summary of the Argument.……………………………………………………….. 4

Argument and Authority ………………………………………………………….. 4

Certificate of Service……………………………………………………………… 6

Certificate of Compliance………………………………………………………… 7




                            ii
                          INDEX OF AUTHORITIES

CASES:                                                                          Page

Flowers v. State, 220 S.W.3d 919 (Tex.Crim.App. 2007). . …………………….5

Strasser v. State, 81 S.W.3d 468 (Tex.App.-Eastland 2002) …………………….5


STATUTES AND RULES:

Texas Code of Criminal Procedure, Article 37.07 §3 ….………..……………… 4

Texas Rules of Evidence,403 . . . . . . . . . . . . . . . . . . . . . . .………………………..5




                                       iii
                       CASE NO. 12-15-00010-CR

                                 IN THE

                    TWELFTH COURT OF APPEALS

                              TYLER, TEXAS

                   _______________________________

                     KELTON DEREK WILSON, Appellant
                                 vs.
                     THE STATE OF TEXAS, Appellee
                   _______________________________

                          On Appeal from the
                         rd
                        3 Judicial District Court
                        Henderson County, Texas

                   (Trial Court Case Number: C-20,914)

             Honorable Judge Mark Calhoon, Judge Presiding


                         BRIEF OF APPELLANT


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW KELTON DEREK WILSON, hereinafter sometimes referred

to as Appellant, and submits his Brief on Appeal in the above entitled and

numbered Cause, pursuant to the provisions of the Texas Rules of Appellate

Procedure.



                                      1
                         STATEMENT OF THE CASE

                APPELLANT WAIVES ORAL ARGUMENT

      On December 5, 2013, a grand jury indicted Kelton Derek Wilson,

hereinafter sometimes referred to as Appellant, for Evading Arrest or Detention

With a Motor Vehicle, a Third Degree Felony, (CR1:1). On August 18, 2014

Appellant waived his right to a jury in this case and elected to have punishment set

by the Court (CR 1:7). On August 22, 2014 Appellant entered his plea of guilty to

the Court (CR 1:8-9). The Court ordered a presentence investigation report to be

completed by October 13, 2014, for sentencing purposes (CR 1:11-12). On

December 17, 2014 the Court Adjudicated Appellant guilty and after hearing the

evidence, sentenced him to Ten (10) years confinement in the Texas Department of

Corrections Institutional Division, (CR 1:109-110). Appellant filed his Notice of

Appeal on December 29, 2014 (CR 1:112-113).

                         STATEMENT OF JURISDICTION

      Therefore, the Twelfth Court of Appeals holds jurisdiction.

__________________________________________________________________
Note:        For purposes of this Appeal Brief, all references to the Clerk’s Record
will be noted as “CR,” followed by the volume number and page number.
References to the Reporter’s Record will be noted as “RR,” followed by the
volume number, page number and line as necessary. Any emphasis added by this
writer will be noted as same immediately following the word or phrase emphasized
by italics.

                                      2
                               ISSUES PRESENTED

      POINT OF ERROR:

    THE TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING
AN UNADJUDUCATED JUVENILE FELONY OFFENSE IN SENTENCING
DEFENDANT.

                          STATEMENT OF FACTS

      On August 18, 2014 Appellant waived his right to a jury in this case (CR

1:7). The Court ordered a presentence investigation report to be completed for

sentencing (CR 1:11-12). On December 17, 2014 the Court heard evidence,

including the presentence investigation report and testimony from witnesses and

Appellant. During opening statements to the Court, the State urged the Court to

consider Appellant’s unindicted juvenile felony to which Appellant’s trial

attorney objected (CR 1:9-15). Following testimony the Court Adjudicated

Appellant guilty and sentenced him to Ten (10) years confinement in the Texas

Department of Corrections Institutional Division, (CR 1:109-110).


      POINT OF ERROR, (Restated):

    THE TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING
AN UNADJUDICATED JUVENILE FELONY OFFENSE IN SENTENCING
DEFENDANT.




                                     3
                      SUMMARY OF THE ARGUMENT

      The Trial Court abused its discretion by considering the un-adjudicated

offense of Appellant, alleged to have been committed when he was a juvenile

because the State failed to meet its burden of proof, beyond a reasonable doubt,

that Appellant was the same person who committed the juvenile offenses as listed

in the pre-sentence investigation record; or that Appellant was adjudicated for the

offense.   Over objection of Appellant’s attorney, the juvenile record was

considered by the trial Court which resulted in Appellant receiving the maximum

sentence of ten years in prison for the third degree felony of Evading

Arrest/Detention with a Motor Vehicle.

                       ARGUMENT AND AUTHORITY

      At Appellant’s sentencing hearing before the 3rd Judicial District Court, on

December 17, 2014, Appellant’s trial attorney objected to the Court considering a

non-conviction or un-adjudicated offense that Appellant was alleged to have

committed when Appellant was eleven years old (RR 1:6:9-21). Appellant argues

that Texas C.C.P. Art. 37.07 Sec. 3 (a)(1) mandates that even though evidence may

be offered by the State of a defendant’s prior criminal record, any evidence of an

extraneous crime or bad act must be shown beyond a reasonable doubt (emphasis

added) to have been committed by the defendant.

                                      4
      In Strasser v. State, the Eastland Court of Appeals referred to the trial

Court’s admonition to the State that if the State was going into other bad acts, it

was going to have to establish beyond a reasonable doubt that the Defendant was

the one who did the act and prove Defendant’s identity. Strasser v. State,

81S.W.3d 468 (Tex. App.-Eastland 2002).        Appellant complains that the trial

Court erred when it considered un-adjudicated juvenile records during the

sentencing hearing without the State establishing beyond a reasonable doubt that

the Defendant committed the offense of burglary of an occupied dwelling (that a

prior conviction existed) and that he was finally adjudicated of said offense (that

defendant was linked to that conviction). These two prongs as set out in the

parentheses above are established in Flowers v. State, 220 S.W.3d 919

(Tex.Crim.App.2007).     Appellant argues that his juvenile records that were

admitted were more prejudicial than they were probative pursuant to Tex. R. Evid.

403, resulting in an excessive sentence from the trial Court. The trial Court’s

decision to admit the un-adjudicated juvenile records without establishing that

defendant committed an offense or proved his identity in the offense as required by

Flowers is an abuse of discretion by the trial court. Therefore, this case should be

reversed and remanded to the trial Court for sentencing.



                                      5
                                 PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this Honorable Court hold that the trial court abused its discretion, reverse and

remand this case for rehearing of sentencing.

                                                Respectfully Submitted,

                                                ALTIER LAW OFFICES
                                                1527 E. Fifth St.
                                                Tyler, Texas 75701
                                                Tel: 903-595-4232
                                                Fax: 903-595-0031
                                                altierlaw@gmail.com



                                                By: /s/ Linda A. Altier
                                                TSBN: 00783541
                                                Attorney for Appellant



                          CERTIFICATE OF SERVICE

             The undersigned hereby certifies that a true and correct copy of the

foregoing Appellant’s Brief has been served on Mark Hall, Attorney for the State,

and R. Scott McKee, Henderson County District Attorney, 109 W. Corsicana St.,

Ste. 103, Athens, Texas, by e-mail to mwhall@co.henderson.tx.us, on June 23,

2015.

                                                /s/ Linda A. Altier

                                       6
                           CERTIFICATE OF COMPLIANCE

             In compliance with TRAP 9.4(i), the undersigned hereby certifies that

the number of words contained in the above Brief of Appellant are 588; excluding

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, signature, proof of service, certification, and certificate of

compliance, which is less than the maximum allowed of 15,000 words.



                                               /s/ Linda A. Altier




                                         7
