The opinion
PD-0572-14, PD-0573-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/11/2015 12:25:23 PM
May 11, 2015 Accepted 5/11/2015 1:27:43 PM
ABEL ACOSTA
CAUSE NO. PD-0572-14 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. F10-00433-S
and
The Court of Appeals for the Fifth District of Texas at Dallas
Appellate Cause No. 05-13-00598-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. §32.32....................................................................2
TEX. PENAL CODE ANN. §32.32 (c)(4).........................................................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-0572-14
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. F10-00433-S
and
The Court of Appeals for the Fifth District of Texas at Dallas
Appellate Cause No. 05-13-00598-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 False
Statement to Obtain Property. 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 False Statement to Obtain Property
in violation of TEX. PENAL CODE ANN. §32.32. Because the alleged value of the
property obtained was more than $1500.00 but less than $20,000.00, the offense was
classified as a State Jail Felony offense. TEX. PENAL CODE ANN. §32.32 (c)(4). 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 False Statement to Obtain
Property in violation of TEX. PENAL CODE ANN. §32.32. [CR 1 - 5]. Because the
alleged value of the property obtained was more than $1500.00 but less than
$20,000.00, the offense was classified as a State Jail Felony offense. TEX. PENAL
CODE ANN. §32.32 (c)(4). 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- 14); [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].
3
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
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
4
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
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
5
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
me. The Court has considered the arguments of counsel.
Court announces the verdict as such: In Cause Number
F10-00448, [the sister 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 instant 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
6
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. [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
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 3898 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
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