Charles Blake Defore v. State

Case Information

CAUSE NUMBER 12-15-00075-CR

| IN THE COURT OF APPEALS FOR THE 12th COURT OF APPEALS
TYLER, TEXAS
TWELFTH APPELLATE DISTRICT OF TEXAS PAM ESTES
Clerk | | | :--: | :--: | | AT TYLER | FILED | | CHARLES BLAKE DEFORE | 9/8/2015 | | VS. | Twelfth Court of Appeals
Pam Estes
Clerk |

THE STATE OF TEXAS

CAUSE NUMBER 31,077 IN THE $3^{\mathrm{R}\mathrm{D}}$ 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, Appelhnt 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

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 [1 ${}^{\text{st}}$ 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 of Appellate Procedure ..... 2 Rule 38.1(e), Texas Rules of Appellate Procedure ..... 7

STATEMENT OF THE CASE

On the ${27}^{\text{th}}$ 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 ${22}^{\text{nd}}$ 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 $7^{\text{th}}$ day of January 2015, Appellee filed a Motion to Proceed with Adjudication of Guilt and Sentence (C.R., Vol. 1, Pg. 95). On the ${13}^{\text{th}}$ 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).

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.

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 ${13}^{\text{th}}$ 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 appea. Appellant can overcome this presumption when the record affirmatively reflectserror.

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.

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 overcomethe presumption of regularity when the record affirmatively reflects error. 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 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 $𝐭$ , as well."

Despite the Court's failure to pronounce an adjudication of guilín 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 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 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 lacksjurisdiction, in Count II. Without jurisdiction in Count II, the Appellate Court must dismiss the appeal in Count II. Warren v. State, 784 S.W.2d 56 (Tex. App.-Houston [1 ${}^{\text{st}}$ Dist.] 1989), rev'd on other grounds.

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 theappeal 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(i)(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,

COLIN D. MCFALL Attorney at Law Texas Bar Number:

24027498 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 Email: cmcfall@mcfalllaw-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.us by email transmission, on the $8^{\text{th}}$ day of September 2015.

RESPECTFULLY SUBMITTED,

Case Details

Case Name: Charles Blake Defore v. State

Court Name: Court of Appeals of Texas

Date Published: Sep 8, 2015

Docket Number: 12-15-00075-CR

Court Abbreviation: Tex. App.