Case Information

*1

19,18-23

TO: Court of Criminal Appesals Abel Acosta ; Clerk P.O.Box 12308

Capitol Station Austin, Texas 78711

FROM: Dale Richard Adams #1653939 2661 FM 2054 Coffield Unit Tennessee Colony, Texas 75884

RECEIVED IN COURT OF CRIMINAL APPEALS

NOV 192015

RE: Enclosure Abel Acosta, Clerk

Dear Court of Criminal Appeals: Please find enclosed an original copy of the Application for Writ of Double Jeopardy to be filed in your office. Thank you for your time and GOD BLESS.

Cordially

*2

Writ No.

EXPARTE $\S$ IN THE COURT OF CRIMINAL

DALE:RICHARD ADAMS § APPEALS FOR THE

APPLICANT § STATE OF TEXAS

FACTS IN SUPPORT OF THE APPLICATION FOR WRIT OF DOUBLE JEOPARDY

RECEIVED IN COURT OF CRIMINAL APPEALS

NOV 192015

Abel Acosta, Clerk

*3 FACTS IN SUPPORT OF THE APPLICATION FOR WRIT OF DOUBLE JEOPARDY

GROUND 1: DOUBLE JEOPARDY FACTS SUPPORTING GROUND 1:

1.In the 2nd Judicial District Court of Cherokee County, Texas, on July 1-2010, Judge Dwight L. Phifer in case #17661 Convicted Applicant in the Plea Bargain of Indecency with a child. Exhibit (A).

2.In the 2nd Judicial District Court of Cherokee Count, Texas, on July 1-2010, Judge Dwight L. Phifer in case #17661 Convicted Applicant of a higher level offense of Aggrivated Sexual Assault of a Child. Exhibit (B).

3.In the 2nd Judicial District Court of Cherokee County, Texas, on July 1-2010, Judge Dwight L. Phifer in a NUnc Pro Tunc Convicted Applicant of Indecency with a child. Exhibit (C).

1. Arrest of Judgement. Exhibit (D).

*4

Writ No.

EXPARTE $\S$ IN THE COURT OF CRIMINAL

DALE RICHARD ADAMS $\S$ APPEALS FOR THE

APPLICANT $\S$ STATE OF TEXAS

MEMORANDUM OF LAW IN SUPPORT OF THE APPLICATION FOR WRIT OF DOUBLE JEOPARDY

*5

THE ARGUMENT

In Bench trials, Jeopardy attaches when both sides announce ready and the defendant pleads to the indictment.

The Double Jeopardy Cause"DOES" prevent retrial under the following circumstances:

1. A conviction of a lesser included offense"PREVENTS,(to keep from occuring.)", the PROSECUTION,(to conduct legal proceedings against.)"of a higher level offense. The reverse is also true. Example; Prior Conviction of the main offense prohibits the prosecution of a lesser included offense.See Exparte Jefferson, 681 S.W.2d 33 (Tex Crim App 1984).

In the 2nd Judicial District Court of Cherokee County, Texas,on July 1-2010, Judge Dwight L. Phifer in case #17661 Convicted Applicant in the Plea Bargain of a lesser included offense of Indecency with a child. Exhibit (A).

Also in the 2nd Judicial District Court of Cherokee County, Texas, on July 1-2010 Dwight L. Phifer in case #17661 Convicted Applicant of a higher level offense of Aggrivated Sexual Assault of Child. Exhibit (B).

Double Jeopardy objections are not waived simply because the issue was not raised earlier on appropriate occassions.Objections can be raised at any time.A guilty plea does not bar relief from Double Jeopardy Violations. Exparte Fortune, 797 S.W.2d 929(TexCrimApp 1990).

*6 The Fifth Amendment of the United States Constitution prohibits a person from being subject to Two Trials, ( the HEARING and DECIDING OF A CASE IN A Court of Law.), for the same offense.

In the 2nd Judicial District Court of Cherokee County, Texas, on November 23-20110, Judge Dwight L. Phifer Granted a Nunc Pro Tunc Convicting Applicant of Indecency with a child.Exhibit (C).

By the Court using the Nunc Pro Tunc,(a proceeding in a criminal case), after the courts. Arrest of Judgment, Exhibit (D), put Applicant in Jeopardy of Two Trials. Because the Applicants Arrest of Judgment in Plea Bargain. Then by Order Granting Nunc Pro Tunc(a proceeding in a criminal case) the Court HEARD and DECIDED, (TRIAL), to Grant the Nunc Pro Tunc. Subjecting Applicant to a second Trial. Convicting Applicant of Indecency with a child. The same offense of conviction in Plea Bargain.

SUMMARY:

By the Court Convicting Applicant in Plea Bargain of Indecency with a child,(a lesser included offense) and then a Conviction of Aggrivate Sexual Assault of a Child,(a higher level offense), and the Court Granting the Nunc Pro Tunc after the Courts. Arrest of Judgment of Plea Bargain did put Applicant in a second Trial, (HEARING and DECIDING of a Case in a Court of Law). The Facts in above application will show that the Applicant was put in Double Jeopardy, not once but twice!

*7

INMATE'S DECLARATION

I, Dale Richard Adams, am the applicant and being presently incarcerated in TDCJ Coffield Unit, =declare under penalty of perjury that, according to my belief, the facts stated in thez above application are true and correct.

Dale

Dale Richard Adams #1653939

Date $11-15-{2215}^{-}$

*8 PRAYER

Comes now, Dale Richard Adams, in Application above and Prays the Court will Grant the Writ of Double Jeopardy and the relief to which he may be entitled in this Application. GOD BLESS EVERYONE AND THEIR FAMLIES!

*9 Exhibit A

*10

CAUSE NO. 17661 COUNT I
TRN# 9182797293 A001

THE STATE OF TEXAS VS. DALE RICHARD ADAMS SID# 07792187 $\begin{array}{cccc}\text{§}\hfill & amp;\text{IN THE SECOND JUDICIAL}\text{§}\hfill & amp;\text{DISTRICT COURT OF}\text{§}\hfill & amp;\text{CHEROKEE COUNTY, TEXAS}\hfill \end{array}$

*11

SIGNED this the $$ day of $$ $20\mathrm{m}$ .

Dalle Aline

DEFENDANT

JUDGE PRESIDING

*12 Exhibit B

*13 | TABLE RICHARD ADAMS | | | | :--: | :--: | :--: | | STATE ID No.: TX07792187 | | |

| TABLE WICHARD JUDICIAL | | | :-- | :-- | | $\$$ | DISTRICT COURT OF | | $\$$ | | | $\$$ | CHEROKEE COUNTY, TEXAS | | $\$$ | |

JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL

| Judge Presiding: | Hon. DWIGHT L. PHIFER | Date Judgment Entered: | 7/1/2010 | | :--: | :--: | :--: | :--: | | Attorney for State: | RACHEL L. PATTON | Attorney for Defendant: | TONDA L. CURRY |

Offense for which Defendant Convicted: COUNT I: AGGRAVATED SEXUAL ASSAULT OF CHILD

| Charging Instrument: | Statute for Offense: | | :--: | :--: | | INDICTMENT | 22.021 (a) (2) (B) Penal Code |

Date of Offense: $6/15/2007$ Degree of Offense: 1ST DEGREE FELONY Terms of Plea Bargain: TWENTY (20) YEARS INSTITUTIONAL DIVISION, TIDCJ Plea to $1^{\text{st}}$ Enhancement vragraph: Mlings on 1st Enhancement Cagraph: Date Sentence Imposed: 7/1/2010 Punishment and Place of Confinement: TWENTY YEARS INSTITUTIONAL DIVISION, TDCJ THIS SENTENCE SHALL RUN CONCURRENTLY.

SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR N/A

| Pins: | Court Costs: | Restitution: | Restitution Payable to: | | :--: | :--: | :--: | :--: | | | $\$440$ | $ | $◻$ VICTIM(s) (see below) | | | | | $ | | | | | $◻$ AGENCY/AGENT (see below) | | | | | DPS Lab $ | | | | | Cherokee County for Court Appointed Attorney fees | | | | | $ |

Sex Offender Registration Requirements apply to the Defendant. Tex. Code CRIm. Proc. chapter 62 The age of the victim at the time of the offense was $\S$ Time Credited: $0.5$ DAYS

If Defendant is to serve sentence in county jail or is given credit toward fine and costs, enter days credited below. N/A DAYS NOTES: N/A All pertinent information, names and assessments indicated above are incorporated into the language of the judgment below by residence.

*14

This cause was called for trial in Cheroke County, Texas. The State appeared by her strict Attorney.

Counsel / Waiver of Counsel (select one)

Defendant appeared in person with Counsel. Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court. Both parties announced ready for trial. Defendant waived the right of trial by jury and entered the plea indicated above. The Court then admonished Defendant as required by law. It appeared to the Court that Defendant was mentally competent to and trial, made the plea freely and voluntarily, and was aware of the consequences of this plea. The Court received the plea and tered it of record. Having heard the evidence submitted, the Court found Defendant guilty of the offense indicated above. In the presence of Defendant, the Court pronounced sentence against Defendant.

The Court Finds Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is GUILTY of the above offense. The Court Finds the Presentence Investigation, if so ordered, was done according to the applicable provisions of Tex. Code Crim. Proc. art. $42.12\$9$ .

The Court Orders Defendant punished as indicated above. The Court Orders Defendant to pay all fines, court costs, and restitution as indicated above.

Punishment Options (select one)

Confinement in Institutional Division. The Court Orders the authorized agent of the State of Texas or the Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court Orders Defendant to be confined for the period and in the manner indicated above. The Court Orders Defendant remanded to the custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence. The Court Orders that upon release from confinement, Defendant proceed immediately to the Office of the Cherokee County District Clerk, Rusk, Texas. Once there, the Court Orders Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. County Jail-Confinement / Confinement in Lieu of Payment. The Court Orders Defendant immediately committed to the custody of the Sheriff of Cherokee County, Texas on the date the sentence is to commence. Defendant shall be confined in the Cherokee County Jail for the period indicated above. The Court Orders that upon release from confinement, Defendant shall proceed immediately to the Office of the Cherokee County District Clerk, Rusk, Texas. Once there, the Court Orders Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. Fine Only Payment. The punishment of the Court Orders Defendant to proceed immediately to the Office of the Cherokee County District Clerk, Rusk, Texas. Once there, the Court Orders Defendant to pay or make arrangements to pay all fines, court costs, and restitution as ordered by the Court of the Cause.

Execution / Suspension of Sentences

The Court Orders Defendant's sentence to the Court Orders Defendant's sentence to the legal agent of the State of Texas. 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291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 299999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 299999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 299999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 299999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 2999999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999999st of the 291st of the 292st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 29999999999999999999999999999992st of the 293st of the 294st of the 295st of the 296st of the 297st of the 298st of the 299999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999

*15 Exhibit C

*16

NO. 17661

THE STATE OF TEXAS VS DALE RICHARD ADAMS

IN THE $2^{\text{ND}}$ JUDICIAL

§ DISTRICT COURT OF § CHEROKEE COUNTY, TEXAS

MOTION NUNC PRO TUNC

TO THE HONORABLE JUDGE OF SAID COURT:

$$ COMES NOW, the State of Texas and moves the Court to reform the Judgment of Conviction by court-Waiver of Jury Trial in this cause to correctly reflect that the offences for which the defendant convicted be indecency with a child.

On or about the $1^{\text{st}}$ day of July, 2010, the Judgment of Conviction by court-Waiver of Jury Trial was signed by Judge Dwight Phifer of the $2^{\text{nd}}$ Judicial District Court. Said Judgment should correctly reflect that the offense for which the defendant convicted be Indecency with a child.

WHEREFORE, the State prays and moves this Honorable Court to correctly reflect that the offense for which the defendant convicted be Indecency with a child.

RESPECTFLLY SUBMITTED,

ATTORNEY FOR STATE P. O. BOX 450

RUSK, TEXAS 75785 STATE OF TEXAS BAR NO. RACHEL 24039030

*17

NO. 17661

THE STATE OF TEXAS VS DALE RICHARD ADAMS $\S$ IN THE $2^{\mathrm{N}\mathrm{D}}$ JUDICIAL § DISTRICT COURT OF § CHEROKEE COUNTY, TEXAS

ORDER GRANTING NUNC PRO TUNC

Came to be heard this date the Motion for Nunc Tunc and same being approved by the Court, IT IS THEREFORE ORDERED that the Judgment correctly reflect that the offense for which the defendant convicted be Indecency with a child.

SIGNED AND ENTERED this the day of $\underset{\text{s}}{\text{Comerend}}$

*18 Exhibit D

*19

47

CAUSE NO. 17661

THE STATE OF TEXAS VS.

TALE RICHARD ADAMS

$\S$
IN THE $2^{\text{ND}}$ JUDICIAL

$\S$
DISTRICT COURT OF

&; CHEROKEE COUNTY, TEXAS

WAIVER OF TIME TO FILE MOTION FOR NEW TRIAL AND ARREST OF JUDGMENT

COMES NOW, the Defendant after punishment has been assessed and before sentence has been imposed, and in writing and in open Court, waives the time provided in the Texas Code of Criminal Procedure, for the filing of a motion in Arrest of Judgment or Motion for New Trial.

WAIVER OF APPEAL

I, the undersigned Defendant, in writing and in open Court, and joined by my counsel and after being duly sentenced in accordance with the punishment assessed, state that I understand my right to appeal the conviction herein, as provided in the Texas Code of Criminal Procedure, and that if I am indigent and desire to appeal, counsel will be appointed at no cost to me. I, the undersigned defendant, understanding all rights in this connection, freely, voluntarily and intelligently waive and abandon my right of appeal in this case.