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 3RDJUDICIAL 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

 RECEIVED IN 12th 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: 903-723-0269 

S 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: 903-723-7818 
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 [1stDist.] 

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 27thday 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 22ndday 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 7thday of January 2015, Appellee filed a Motion to Proceed with 

Adjudication of Guilt and Sentence (C.R., Vol. 1, Pg. 64). On the 13thday 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 Argument 

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ISSUE PRESENTED 

The Trial Court failed to adjudicate Appellant guilty, prior to sentencing, 

rendering a void judgment and depriving the Appellate Court of jurisdiction. 

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STATEMENT OF FACTS 

On the 13thday 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). The 

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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 [1stDist.] 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. 

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(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.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 14thday 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