### CAUSE NUMBER 12-15-00074-CR

IN THE COURT OF APPEALS FOR THE TWELFTH APPELLATE DISTRICT OF TEXAS

AT TYLER

CHARLES BLAKE DEFORE

VS. 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.corn Counsel for Appellant ACCEPTED 12-15-00074-CR TWELFTH COURT OF APPEALS

TYLER, TEXAS 9/7/2015 6:40:55 PM

Pam Estes CLERK

### 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:

Trial Defendant's Counsel: Charles Blake DeFore 1200 East Lacy Street Palestine, Texas 75801 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:

Appellant'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: 903-723-0269S I OZ-L0-60



### Appellee's Counsel: Scott Holden Assistant Criminal District Attorney Anderson County Courthouse 500 North Church Street Palestine, Texas 75801 Telephone: 903-723-7400 Facsimile: 903-723-7818TABLE 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 15INDEX 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 [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 3 8.1(a), Texas Ru]Les ofAppellate Procedure 2 Rule 3 8.1(e), Texas Rules of Appellate Procedure 8



### 51STATEMENT OF THE CASE

On the 27 th

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 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) 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 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 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).

### 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 ArgumentS 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.S I OZ-L0-60

### 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 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.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). TheS I OZ-L0-60

### 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 [1 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 find the Judgment is not final, and dismiss the instant appeal for want of jurisdiction.S I OZ-L0-60



# (3,

### 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,S I OZ-L0-60



### 513 North Church Street Palestine, Texas 75801-2962 COLIN D. FALL Attorney at Law Texas Bar Number: Telephone: 903-723-1923 Facsimile: 903-723-0269 24027498 Email: cmcfall@mcfall-law-office.comCERTIFICATE 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 14 th day of April 2014. RESPECTFULLY SUBMITTED,

,140 COLIN D. CFALL Attorney at Law Texas Bar Number: 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 24027498 Email: cmcfall@mcfall-law-office.com