Charles Blake Defore v. State, 12-15-00074-CR

Charles Blake Defore v. State

12-15-00074-CR

| Tex. App. | Sep 7, 2015

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Case Information

CAUSE NUMBER 12-15-00074-CR

THE STATE OF TEXAS

CAUSE NUMBER 31,070 IN THE $3^{RD}$ 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.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:

*3 Appellant:

Appellant's Counsel:

Appellee's Counsel:

Charles Blake DeFore Hutchins Unit 1500 East Langdon Road Dallas, Texas 75241 Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 Scott Holden Assistant Criminal District Attorney Anderson County Courthouse 500 North Church Street Palestine, Texas 75801 Telephone: 903-723-7400 Facsimile: 903-723-7818

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, 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

$\underset{―}{PAGE}$

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.2d 56 (Tex. App. - Houston [1 $^{st}$ 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 38.1(a), Texas Rules of Appellate Procedure ..... 2 Rule 38.1(e), Texas Rules of Appellate Procedure ..... 8

STATEMENT OF THE CASE

On the $27^{th}$ day of September 2012, an Anderson County Grand Jury returned 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 $22^{nd}$ 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) grams.(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 $7^{th}$ day of January 2015, Appellee filed a Motion to Proceed with Adjudication of Guilt and Sentence (C.R., Vol. 1, Pg. 64). On the $13^{th}$ day of February 2015, the Court conducted a hearing, 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).

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 guilty, prior to sentencing, rendering a void judgment and depriving the Appellate Court of jurisdiction.

STATEMENT OF FACTS

On the $13^{th}$ 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 heard closing 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).

*10

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 reflectserror.

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 toorally 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.

*11

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 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 overcome the 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 31,07\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

*12 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 guilt, he Court sentence Appellant, in cause number 31,070 , to thiry (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 [1 $^{st}$ Dist.] 1989), rev'd on other grounds.

*13

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.

*14

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,

COLIN D. MCFALL Attorney at Law Texas Bar Number: 24027498 24027498 Email: cmcfall@mcfall-law-office.com

*15

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 $14^{th}$ day of April 2014.

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@mcfall-law-office.com

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