ACCEPTED
S 10Z-80-60 12-15-00075-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/8/2015 6:07:20 PM Pam Estes CLERK
CAUSE NUMBER 12-15-00075-CR
RECEIVED IN 12th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE TYLER, TEXAS 9/8/2015 6:07:20 PM TWELFTH APPELLATE DISTRICT OF TEXAS PAM ESTES Clerk
AT TYLER 9/8/2015
CHARLES BLAKE DEFORE
VS.
THE STATE OF TEXAS
CAUSE NUMBER 31,077
IN THE 3RD JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
APPELLANT'S BRIEF
Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 Email: cmcfall@mcfall-law-office.com Counsel for Appellant IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appellint
provides a complete list of all parties and the names and addresses of Counsel:
Trial Defendant: Charles Blake DeFore 1200 East Lacy Street Palestine, Texas 75801
Trial Defendant's Counsel: Jeffrey D. Herrington Attorney at Law 509 North Church Street Palestine, Texas 75801 Telephone: 903-723-1212 Facsimile: 903-723-3434
Trial State's Counsel: Scott Holden Assistant Criminal District Attorney Anderson County Courthouse 500 North Church Street Palestine, Texas 75801 Telephone: 903-723-7400 Facsimile: 903-723-7818 SIOZ-80-60 Appellant: Charles Blake DeFore Hutchins Unit 1500 East Langdon Road Dallas, Texas 75241
Appellant's Counsel: Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269
Appellee's Counsel: Scott Holden Assistant Criminal District Attorney Anderson County Courthouse 500 North Church Street Palestine, Texas 75801 Telephone: 903-723-7400 Facsimile: 903-723-7818 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 4
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 6
STATEMENT REGARDING ORAL ARGUMENT 7
ISSUES PRESENTED
I. THE TRIAL COURT FAILED TO ADJUDICATE APPELLATE
GUILTY OF COUNT II, PRIOR TO SENTENCING, RENDERING
A VOID JUDGMENT, AND DEPRIVING THE APPELLATE
COURT OF JURISDICTION 8
STATEMENT OF FACTS 9
SUMMARY OF THE ARGUMENT 10
ARGUMENT 11
PRAYER 13
CERTIFICATE OF COMPLIANCE 14
CERTIFICATE OF SERVICE 15 INDEX OF AUTHORITIES
CASES PAGE
TEXAS
Breazeale v. State, 683 S.W.2d 446 (Tex. Crim. App. 1984) 11
Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978) 11
Warren v. State, 784 S.W.2d 56 (Tex. App.— Houston [1St Dist.]
1989), rev'd on other grounds.... 12
RULES AND STATUTES PAGE
TEXAS CODE OF CRIMINAL PROCEDURE
Article 42.12, § 5(b), Texas Code of Criminal Procedure 12
TEXAS RULES OF APPELLATE PROCEDURE
Rule 9.4(i)(3), Texas Rules of Appellate Procedure 14
Rule 38.1(a), Texas Rules ofAppellate Procedure 2
Rule 3 8.1(e), Texas Rules of Appellate Procedure 7 STATEMENT OF THE CASE
On the 27th day of September 2012, an Anderson County Grand Jury returned
a two count Indictment, charging Appellant withManufacture or Delivery of
Substance in Penalty Group 1, four (4) grams or more, but less than two hundred
(200) grams, in Count I, and Tampering with or Fabricating Physical Evidence
(with intent to impair), in Count II. (C.R., Vol. 1, Pg. 6). On the 22hd day of
February 2013, Appellant plead guilty toManufacture or Delivery of Substance in
Penalty Group 1, four (4) grams or more, but less than two hundred (200) grams in
County I, and Tampering with or Fabricating Physical Evidence (with intent to
impair), in Count II. (C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg. 59). The Trial Court
deferred a finding of Guilt and placed Appellant onCommunity Supervision forten
(10) years, in each count (C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg. 59).
On the 7th day of January 2015, Appellee filed a Motion to Proceed with
Adjudication of Guilt and Sentence (C.R., Vol. 1, Pg. 95). On the 13th day of
February 2015, the Court conducted a hearing, consolidatedwith a Motion to
Proceed with Adjudication of Guilt and Sentence in causenumber 31,070.
At the conclusion of the hearing, theCourt sentenced Appellantto thirty (30)
years confinement in the Texas Department of Criminal Justice, Institutional
Division (R.R., Vol. 1, Pg. 36, L. 6). SIOZ-80-60 STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 38.1 (e), Texas Rules of Appellate Procedure, Appellant
provides the following Statement Regarding Oral Argument
Appellant does not requestOral Argument
2 SIOZ-80-60 ISSUE PRESENTED
The Trial Court failed to adjudicate Appellant guiltyin County II, prior to sentencing, rendering a void judgment and depriving the Appellate Court of jurisdiction. STATEMENT OF FACTS
On the 13th day of February 2015, the Trial Court called Cause Number
31,070, the State of Texas vs. Charles Blake DeFore, and Cause Number 31,077,
State of Texas vs. Charles Blake DeFore, for announcements (R.R., Vol. 1, Pg. 1,
L. 5). Appellant plead "Not True" to the allegations contained withinboth Motions
to Proceed with Adjudication of Guilt and Sentence (R.R., Vol. 1, Pg. 6, L. 7),
(R.R., Vol. 1, Pg. 6, L. 13). The Court proceeded with a consolidated hearing in
Cause Numbers 31,070 and 31,077.
Appellee called Anderson County Adult Community Supervision Officer
David Purcell as its first witness (R.R., Vol. 1, Pg. 6, L. 16), Angela Sheely as its
second witness (R.R., Vol. 1, Pg. 22, L. 16), and T.J. Choate as its third witness
(R.R., Vol. 1, Pg. 25, L. 14).
At the conclusion of the testimony, the court heardclosing arguments and
announced its ruling. (R.R., Vol. 1, Pg. 28, L. 16). The Court found the allegations
true (R.R., Vol. 1, Pg. 28, L. 17), and adjudicated Appellant guiltyon Count I
(R.R., Vol. 1, Pg. 28, L. 21) (R.R., Vol. 1, Pg. 28, L. 23). The Court then sentenced
Appellant to thirty (30) years in cause numbers31,070 and 31,077. (R.R., Vol. 1,
Pg. 36, L. 7). SUMMARY OF THE ARGUMENT
The Trial Court failed to adjudicate Appellant guiltyin County II, prior to sentencing, rendering a void judgment and depriving the Appellate Court of jurisdiction.
In the absence of an express, oral pronouncement of adjudication, followed
by the Trial Court's sentencing, the Appellate Court necessarily implies the Trial
Court found Appellant guilty. Recitals in the Judgment create a presumption of
regularity. Such presumption attains until the contrary appear. Appellant can
overcome this presumption when the record affirmatively reflects error.
The Reporter's Record affirmativelyreflects error. The Court adjudicated
Appellant's guilt in Count I. However, contrary to the Judgment in Cause Number
31,077 reciting Adjudication of guilt,the Court failed to orally pronounce
Appellant's adjudication of guiltin Count II.
Despite the Court's failure toorally pronounce an adjudication ofAppellant's
guilt in Count II, the Court sentenced Appellant, in cause number 31,077, to thirty
(30) years confinement.
Because the Trial Court sentenced Appellant without first finding him guilty
in Count II, the Judgment in Count II is not final. Because the Judgment in Count
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ACCEPTED
S 10Z-80-60 12-15-00075-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/8/2015 6:07:20 PM Pam Estes CLERK
CAUSE NUMBER 12-15-00075-CR
RECEIVED IN 12th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE TYLER, TEXAS 9/8/2015 6:07:20 PM TWELFTH APPELLATE DISTRICT OF TEXAS PAM ESTES Clerk
AT TYLER 9/8/2015
CHARLES BLAKE DEFORE
VS.
THE STATE OF TEXAS
CAUSE NUMBER 31,077
IN THE 3RD JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
APPELLANT'S BRIEF
Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 Email: cmcfall@mcfall-law-office.com Counsel for Appellant IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appellint
provides a complete list of all parties and the names and addresses of Counsel:
Trial Defendant: Charles Blake DeFore 1200 East Lacy Street Palestine, Texas 75801
Trial Defendant's Counsel: Jeffrey D. Herrington Attorney at Law 509 North Church Street Palestine, Texas 75801 Telephone: 903-723-1212 Facsimile: 903-723-3434
Trial State's Counsel: Scott Holden Assistant Criminal District Attorney Anderson County Courthouse 500 North Church Street Palestine, Texas 75801 Telephone: 903-723-7400 Facsimile: 903-723-7818 SIOZ-80-60 Appellant: Charles Blake DeFore Hutchins Unit 1500 East Langdon Road Dallas, Texas 75241
Appellant's Counsel: Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269
Appellee's Counsel: Scott Holden Assistant Criminal District Attorney Anderson County Courthouse 500 North Church Street Palestine, Texas 75801 Telephone: 903-723-7400 Facsimile: 903-723-7818 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 4
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 6
STATEMENT REGARDING ORAL ARGUMENT 7
ISSUES PRESENTED
I. THE TRIAL COURT FAILED TO ADJUDICATE APPELLATE
GUILTY OF COUNT II, PRIOR TO SENTENCING, RENDERING
A VOID JUDGMENT, AND DEPRIVING THE APPELLATE
COURT OF JURISDICTION 8
STATEMENT OF FACTS 9
SUMMARY OF THE ARGUMENT 10
ARGUMENT 11
PRAYER 13
CERTIFICATE OF COMPLIANCE 14
CERTIFICATE OF SERVICE 15 INDEX OF AUTHORITIES
CASES PAGE
TEXAS
Breazeale v. State, 683 S.W.2d 446 (Tex. Crim. App. 1984) 11
Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978) 11
Warren v. State, 784 S.W.2d 56 (Tex. App.— Houston [1St Dist.]
1989), rev'd on other grounds.... 12
RULES AND STATUTES PAGE
TEXAS CODE OF CRIMINAL PROCEDURE
Article 42.12, § 5(b), Texas Code of Criminal Procedure 12
TEXAS RULES OF APPELLATE PROCEDURE
Rule 9.4(i)(3), Texas Rules of Appellate Procedure 14
Rule 38.1(a), Texas Rules ofAppellate Procedure 2
Rule 3 8.1(e), Texas Rules of Appellate Procedure 7 STATEMENT OF THE CASE
On the 27th day of September 2012, an Anderson County Grand Jury returned
a two count Indictment, charging Appellant withManufacture or Delivery of
Substance in Penalty Group 1, four (4) grams or more, but less than two hundred
(200) grams, in Count I, and Tampering with or Fabricating Physical Evidence
(with intent to impair), in Count II. (C.R., Vol. 1, Pg. 6). On the 22hd day of
February 2013, Appellant plead guilty toManufacture or Delivery of Substance in
Penalty Group 1, four (4) grams or more, but less than two hundred (200) grams in
County I, and Tampering with or Fabricating Physical Evidence (with intent to
impair), in Count II. (C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg. 59). The Trial Court
deferred a finding of Guilt and placed Appellant onCommunity Supervision forten
(10) years, in each count (C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg. 59).
On the 7th day of January 2015, Appellee filed a Motion to Proceed with
Adjudication of Guilt and Sentence (C.R., Vol. 1, Pg. 95). On the 13th day of
February 2015, the Court conducted a hearing, consolidatedwith a Motion to
Proceed with Adjudication of Guilt and Sentence in causenumber 31,070.
At the conclusion of the hearing, theCourt sentenced Appellantto thirty (30)
years confinement in the Texas Department of Criminal Justice, Institutional
Division (R.R., Vol. 1, Pg. 36, L. 6). SIOZ-80-60 STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 38.1 (e), Texas Rules of Appellate Procedure, Appellant
provides the following Statement Regarding Oral Argument
Appellant does not requestOral Argument
2 SIOZ-80-60 ISSUE PRESENTED
The Trial Court failed to adjudicate Appellant guiltyin County II, prior to sentencing, rendering a void judgment and depriving the Appellate Court of jurisdiction. STATEMENT OF FACTS
On the 13th day of February 2015, the Trial Court called Cause Number
31,070, the State of Texas vs. Charles Blake DeFore, and Cause Number 31,077,
State of Texas vs. Charles Blake DeFore, for announcements (R.R., Vol. 1, Pg. 1,
L. 5). Appellant plead "Not True" to the allegations contained withinboth Motions
to Proceed with Adjudication of Guilt and Sentence (R.R., Vol. 1, Pg. 6, L. 7),
(R.R., Vol. 1, Pg. 6, L. 13). The Court proceeded with a consolidated hearing in
Cause Numbers 31,070 and 31,077.
Appellee called Anderson County Adult Community Supervision Officer
David Purcell as its first witness (R.R., Vol. 1, Pg. 6, L. 16), Angela Sheely as its
second witness (R.R., Vol. 1, Pg. 22, L. 16), and T.J. Choate as its third witness
(R.R., Vol. 1, Pg. 25, L. 14).
At the conclusion of the testimony, the court heardclosing arguments and
announced its ruling. (R.R., Vol. 1, Pg. 28, L. 16). The Court found the allegations
true (R.R., Vol. 1, Pg. 28, L. 17), and adjudicated Appellant guiltyon Count I
(R.R., Vol. 1, Pg. 28, L. 21) (R.R., Vol. 1, Pg. 28, L. 23). The Court then sentenced
Appellant to thirty (30) years in cause numbers31,070 and 31,077. (R.R., Vol. 1,
Pg. 36, L. 7). SUMMARY OF THE ARGUMENT
The Trial Court failed to adjudicate Appellant guiltyin County II, prior to sentencing, rendering a void judgment and depriving the Appellate Court of jurisdiction.
In the absence of an express, oral pronouncement of adjudication, followed
by the Trial Court's sentencing, the Appellate Court necessarily implies the Trial
Court found Appellant guilty. Recitals in the Judgment create a presumption of
regularity. Such presumption attains until the contrary appear. Appellant can
overcome this presumption when the record affirmatively reflects error.
The Reporter's Record affirmativelyreflects error. The Court adjudicated
Appellant's guilt in Count I. However, contrary to the Judgment in Cause Number
31,077 reciting Adjudication of guilt,the Court failed to orally pronounce
Appellant's adjudication of guiltin Count II.
Despite the Court's failure toorally pronounce an adjudication ofAppellant's
guilt in Count II, the Court sentenced Appellant, in cause number 31,077, to thirty
(30) years confinement.
Because the Trial Court sentenced Appellant without first finding him guilty
in Count II, the Judgment in Count II is not final. Because the Judgment in Count
II is not final, the Appellate Court lacksjurisdiction. Without jurisdiction, the
Appellate Court must dismiss theappeal in Count II, for want of jurisdiction.
IC ARGUMENT
The Trial Court failed to adjudicateAppellant guilty in Count II, prior to sentencing, rendering a void judgment and depriving the Appellate Court of jurisdiction.
In the absence of an express, oral pronouncementof a finding of guilt,
followed by sentencing, the Appellate Court necessarily implies the Trial Court
found Appellant guilty. See Villela v. State, 564 S.W.2d 750 (Tex. Crim. App.
1978). Recitals in the Judgment create apresumption of regularity See Breazeale
v. State, 683 S.W.2d 446 (Tex. Crim. App. 1984). Thus, recitals in the records of
the Trial Court, such as formal Judgments, are binding, in the absence of direct
proof of their falsity. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App.
1984). Such a presumption attains until and uness the contrary is made to appear.
However, Appellant can overcome the presumption of regularitywhen the
record affirmatively reflects error. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.
Crim. App. 1984).
The Reporter's Record affirmatively demonstraes error. The Court
adjudicated Appellant's guilt inCount I (R.R., Vol. 1, Pg. 28, L. 21), (R.R., Vol. 1,
Pg. 28, L. 23). However, contrary to the Judgment in Cause Number 31,07
reciting Adjudication of guiltin Count II, the Court failed to orally pronounce
Appellant's adjudication of guiltin Count II. (R.R., Vol. 1, Pg. 29, L. 2). The Court found the allegations contained within both Motions to Proceed with Adjudication
of Guilt and Sentence to be true(R.R., Vol. 1, Pg. 28, L. 17). However, finding an
allegation true is not an adjudication of guilt. Regarding Count II, the Court made
the following statement:
"Now, folks, what about Count 2? I didn't — I didn't address Count 2. I grant the motion as to Count 2. The evidence was sufficient to support i, as well."
Despite the Court's failure to pronounce an adjudication of guiltin Count II,
the Court sentence Appellant, in cause number 31,07, to thirty (30) years
confinement (R.R., Vol. 1, Pg. 36, L. 6).
After an adjudication of guilt, all proceedings, including asessment of
punishment, pronouncement of sentence, granting of community supervision, and
the Defendant's appeal, continue as if the adjudication of guilt had not been
deferred. Article 42.12, Section 5(b), Texas Code of Criminal Procedure.
The Court failed to adjudicate Appellant's guiltin Count II. Because the
Trial Court sentenced Appellant, without first finding him guilty in Count II, the
Judgment is not final, in Count II. Because the Judgment in Count II is not final,
the Appellate Court lacks jurisdiction, in Count II. Without jurisdictionin Count II,
the Appellate Court must dismissthe appeal in Count II. Warren v. State, 784
S.W.2d 56 (Tex. App.-Houston [1st Dist.] 1989), rev'd on other grounds. SIOZ-80-60 PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays the Appellate
Court find the Trial Court failed to adjudicate Appellant guilty in Count II, find the
Judgment in Count II is not final, and dismiss the appeal in Count II for want of
jurisdiction. CERTIFICATE OF COMPLIANCE
I, Colin D. McFall, Attorney of Record for the above styled Appellant,
pursuant to Rule 9.4(0(3), Texas Rules of Appellate Procedure, hereby certify the
number of words within Appellant's Brief atone thousand, seven hundred, two
(1,702).
RESPECTFULLY SUBMITTED,
" 14V COLIN D. M ALL Attorney at Law rifigi r 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 Texas Bar Number: 24027498 Email: cmcfall@mcfall-law-office.com
i14, S 10Z-80-60 CERTIFICATE OF SERVICE
I, Colin D. McFall, Attorney of Record for the above styled Appellant,
hereby certify service of a true and correct copy of the above and foregoing
document upon Anderson County Assistant Criminal District AttomeyScott
Holden, at sholden@co.anderson.tx.u4 by email transmission, on thee day of
September 2015.
513 North Church Street Palestine, Texas 75801-2962 COLIN D. MCFALL Telephone: 903-723-1923 Attorney at Law Facsimile: 903-723-0269 Texas Bar Number: 24027498 Email: cmcfall@mcfall-law-office.com