ACCEPTED 12-15-00074-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/7/2015 6:40:55 PM Pam Estes CLERK
CAUSE NUMBER 12-15-00074-CR
RECEIVED IN 12th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE TYLER, TEXAS 9/7/2015 6:40:55 PM TWELFTH APPELLATE DISTRICT OF TEXAS PAM ESTES Clerk
AT TYLER
9/7/2015
CHARLES BLAKE DEFORE
VS.
THE STATE OF TEXAS
CAUSE NUMBER 31,070
IN THE 3RD JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
APPELLANT'S BRIEF
Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2965 Telephone: 903-723-1923 Facsimile: 903-723-0269 Email: cmcfall@mcfall-law-office.corn Counsel for Appellant IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appellint
provides a complete list ofall 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 S I OZ-L0-60 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
IS SUES PRESENTED
I. THE TRIAL COURT FAILED TO ADJUDICATE APPELLATE
GUILTY, 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) 13
Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978) 13
Warren v. State, 784 S.W.2d56 (Tex. App. — Houston [1st Dist.]
1989), rev'd on other grounds.... 14
RULES AND STATUTES PAGE
TEXAS CODE OF CRIMINAL PROCEDURE
Article 42.12, § 5(b), Texas Code of Criminal Procedure 11, 14
TEXAS RULES OF APPELLATE PROCEDURE
Rule 9.4(i)(3), Texas Rules of Appellate Procedure 16
Rule 3 8.1(a), Texas Ru]Les ofAppellate Procedure 2
Rule 3 8.1(e), Texas Rules of Appellate Procedure 8
51 STATEMENT OF THE CASE
On the 27th day of September 2012, an Anderson County Grand Juryreturned
an Indictment, charging Appellant withManufacture or Delivery of Substance in
Penalty Group 1, four (4) grams or more, but less than two hundred (200) grams.
(C.R., Vol. 1, Pg. 6). On the 22nd day of February 2013, Appellant plead guilty to
Manufacture or Delivery of Substance in Penalty Group 1, four (4) grams or more,
but less than two hundred (200) grarns.(C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg.
59). The Trial Court deferred a finding ofGuilt and placed Appellant on
Community Supervision forten (10) years. (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. 64). On the 13th day of
February 2015, the Court conducted ahearing, consolidated with a Motion to
Proceed with Adjudication of Guilt and Sentence in causenumber 31,077.
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). S I OZ-L0-60 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 request Oral Argument S I OZ-L0-60 ISSUE PRESENTED
The Trial Court failed to adjudicate Appellant guilty, 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 then sentenced
Appellant to thirty (30) years in cause numbers 31,070 and 31,077. (R.R., Vol. 1,
Pg. 36, L. 7). SUMMARY OF THE ARGUMENT
The Trial Court failed to adjudicate Appellant guilty, 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 apresumption of
regularity. Such presumption attains untilthe contrary appears. Appellant can
overcome this presumption when the record affirmatively reflects error.
The Reporter's Record affirmativelyreflects error. The Court adjudicated
Appellant's guilt in companion cause number 31,077 However, contrary to the
Judgment in Cause Number 31,070 reciting Adjudication of guilt,the Court failed
to orally pronounce Appellant's adjudication of guilt.
Despite the Court's failure to orally pronounce an adjudication ofAppellant's
guilt, the Court sentenced Appellant, in cause number 31,070, to thirty (30) years
confinement
As a result of the Trial Court sentencing Appellant, without first finding him
guilty, the Judgment is not final. Because the Judgment is not final, the Appellate
Court lacks jurisdiction. Without jurisdiction, theAppellate Court must dismissthe
instant appeal for want of jurisdiction. S I OZ-L0-60 ARGUMENT
The Trial Court failed to adjudicate Appellant guilty, 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 a sentencing, the Appellate Court necessarily implies the Trial Court
found Appellant guilty. See Villela v.
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ACCEPTED 12-15-00074-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/7/2015 6:40:55 PM Pam Estes CLERK
CAUSE NUMBER 12-15-00074-CR
RECEIVED IN 12th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE TYLER, TEXAS 9/7/2015 6:40:55 PM TWELFTH APPELLATE DISTRICT OF TEXAS PAM ESTES Clerk
AT TYLER
9/7/2015
CHARLES BLAKE DEFORE
VS.
THE STATE OF TEXAS
CAUSE NUMBER 31,070
IN THE 3RD JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
APPELLANT'S BRIEF
Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2965 Telephone: 903-723-1923 Facsimile: 903-723-0269 Email: cmcfall@mcfall-law-office.corn Counsel for Appellant IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appellint
provides a complete list ofall 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 S I OZ-L0-60 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
IS SUES PRESENTED
I. THE TRIAL COURT FAILED TO ADJUDICATE APPELLATE
GUILTY, 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) 13
Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978) 13
Warren v. State, 784 S.W.2d56 (Tex. App. — Houston [1st Dist.]
1989), rev'd on other grounds.... 14
RULES AND STATUTES PAGE
TEXAS CODE OF CRIMINAL PROCEDURE
Article 42.12, § 5(b), Texas Code of Criminal Procedure 11, 14
TEXAS RULES OF APPELLATE PROCEDURE
Rule 9.4(i)(3), Texas Rules of Appellate Procedure 16
Rule 3 8.1(a), Texas Ru]Les ofAppellate Procedure 2
Rule 3 8.1(e), Texas Rules of Appellate Procedure 8
51 STATEMENT OF THE CASE
On the 27th day of September 2012, an Anderson County Grand Juryreturned
an Indictment, charging Appellant withManufacture or Delivery of Substance in
Penalty Group 1, four (4) grams or more, but less than two hundred (200) grams.
(C.R., Vol. 1, Pg. 6). On the 22nd day of February 2013, Appellant plead guilty to
Manufacture or Delivery of Substance in Penalty Group 1, four (4) grams or more,
but less than two hundred (200) grarns.(C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg.
59). The Trial Court deferred a finding ofGuilt and placed Appellant on
Community Supervision forten (10) years. (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. 64). On the 13th day of
February 2015, the Court conducted ahearing, consolidated with a Motion to
Proceed with Adjudication of Guilt and Sentence in causenumber 31,077.
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). S I OZ-L0-60 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 request Oral Argument S I OZ-L0-60 ISSUE PRESENTED
The Trial Court failed to adjudicate Appellant guilty, 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 then sentenced
Appellant to thirty (30) years in cause numbers 31,070 and 31,077. (R.R., Vol. 1,
Pg. 36, L. 7). SUMMARY OF THE ARGUMENT
The Trial Court failed to adjudicate Appellant guilty, 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 apresumption of
regularity. Such presumption attains untilthe contrary appears. Appellant can
overcome this presumption when the record affirmatively reflects error.
The Reporter's Record affirmativelyreflects error. The Court adjudicated
Appellant's guilt in companion cause number 31,077 However, contrary to the
Judgment in Cause Number 31,070 reciting Adjudication of guilt,the Court failed
to orally pronounce Appellant's adjudication of guilt.
Despite the Court's failure to orally pronounce an adjudication ofAppellant's
guilt, the Court sentenced Appellant, in cause number 31,070, to thirty (30) years
confinement
As a result of the Trial Court sentencing Appellant, without first finding him
guilty, the Judgment is not final. Because the Judgment is not final, the Appellate
Court lacks jurisdiction. Without jurisdiction, theAppellate Court must dismissthe
instant appeal for want of jurisdiction. S I OZ-L0-60 ARGUMENT
The Trial Court failed to adjudicate Appellant guilty, 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 a 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 unless the contrary is made to appear.
However, Appellant can overcomethe presumption of regularity, when the
record affirmatively reflectserror. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.
Crim. App. 1984).
The Reporter's Record affirmatively demonstrates error. The Court
adjudicated Appellant's guilt in companion cause number 31,07T R.R., Vol. 1, Pg.
28, L. 21), (R.R., Vol. 1, Pg. 28, L. 23). However, contrary to the Judgment in
Cause Number 31,070 reciting Adjudication of guilt,the Court failed to orally
pronounce Appellant's adjudication of guilt.(R.R., Vol. 1, Pg. 28, L. 16). The Court found the allegations contained within both Motions to Proceed with
Adjudication of Guiltand Sentence to be true (R.R., Vol. 1, Pg. 28, L. 17).
However, finding an allegation true is not an adjudication of guilt.
Despite the Court's failure to pronounce an adjudication of guilthe Court
sentence Appellant, in cause number 31,070, to thir' (30) years confinement within
the Institutional Division of the Texas Department of Criminal Justice(R.R., Vol.
1, Pg. 36, L. 6).
After an adjudication of guilt, all proceedings, including assessment 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 guilt. Because the Trial Court
sentenced Appellant, without first finding her guilty, theJudgment is not final.
Because the judgment is not final, the Appellate Court lacks jurisdiction. Without
jurisdiction, the Appellate Court must dismiss the instant appeal. Warren v. State, 784
S.W.2d 56 (Tex. App.-Houston [1st Dist.] 1989), rev' d on other grounds. S I OZ-L0-60 PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays the Appellate
Court find the Trial Court failed to adjudicate Appellant guilty find the Judgment is
not final, and dismiss the instant appeal for want of jurisdiction.
(3, S I OZ-L0-60 CERTIFICATE OF COMPLIANCE
I, Colin D. McFall, Attorney of Record for the above styled Appellant,
pursuant to Rule 9.4(i(3), Texas Rules of Appellate Procedure, hereby certify the
number of words within Appellant's Brief atone thousand, five hundred, forty five
(1,545).
RESPECTFULLY SUBMITTED,
513 North Church Street Palestine, Texas 75801-2962 COLIN D. FALL Telephone: 903-723-1923 Attorney at Law Facsimile: 903-723-0269 Texas Bar Number: 24027498 Email: cmcfall@mcfall-law-office.com 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 AttorneyScott
Holden, at sholden@co.anderson.tx.u4 by email transmission, on the 14th day of
April 2014.
513 North Church Street ,140 Palestine, Texas 75801-2962 COLIN D. CFALL Telephone: 903-723-1923 Attorney at Law Facsimile: 903-723-0269 Texas Bar Number: 24027498 Email: cmcfall@mcfall-law-office.com