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TO: Court of Criminal AppeSalS
Abel AcoSta4Clerk
P.O.Box 12308
Capitol Station
AuStin/Texas 78711

FROM: male Richard Adams #1653939 ' ' RECE|VED|N
2661 FM 2054 coffield unit CQURTOFCRlMlNALAPPEALS

TenneSSee Colony, Texas 75884
NUV 19 2015

RE: Enclosure

Abel Acosta, C|erk

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

/;¢52//@¢%/"

Dale Richard AdamS
#1653939

EXPARTE § 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

 

 

RECE|VED IN
COURT OF CR|M|NAL APPEALS

NUV 19 2015

Abe| Acosta, C|erk,

FACTS IN SUPPORT OF THE
APPLICATION FOR

WRIT OF DOUBLE JEOPARDY

 

GROUND lt DOUBLE JEOPARDY

FACTS SUPPORTING GROUND l:

l.In the 2nd Judicial District Court of Cherokee

County/ Tean, 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 DiStric Court of Cherokee
Count, Tean/ 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.EExhibit (B).

3.In the 2nd Judicial DiStrict Court of Cherokee
County/ Tean, on July l-ZOlO, Judge Dwight L. Phifer in aep
NUnc Pro Tunc Convicted Applicant of Indecency with a child.
Exhinit (C).

4. Arrest of Judgement. Exhibit (D).

(SEE ALSO MEMORANDUM OF LAW SUPPORTING GROUND ONE)

Writ No..

EXPARTE § IN THE COURT OF CRIMINAL
DALE RICHARD ADAMS § APPEALS FOR THE
APPLICANT § STATE OF TEXAS

 

MEMORANDUM OF LAW IN SUPPORT OF THE

APPLICATION FOR WRIT OF DOUBLE JEOPARDY

 

MEMORANDUM OF LAW IN SUPPORT

OF THE APPLICATION FOR

WRIT OF DOUBLE JEOPARDY

 

GROUND l: DOUBLE JEOPARDY

THE ARGUMENT

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

The Double Jeopardy Cause"QQ§§" prevent retrial under the
following circumstances;

l. 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.Zd 33 (Tex Crim App 1984).

In the 2nd Judicial District Court of Cherokee County,Texas/on
July l-ZOlO,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.Zd 929(TexCrimApp 1990).

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 Bergain.
§ S.UM:MIA:R;§@/~

Byvthe 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!

INMATE ' S DECLARATION

I, Dale Richard Adams, am the applicant and being presently

incarcerated in IDCJ Coffield Unit,=declare under penalty of

 

 

 

perjury that, according to my belief,the facts stated in themabove

application are true and correct.

Dale Richard Adams
#1653939

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 !

EXhibit A

/`\

\ _ /A,_(

CAUSE NO. 17661 COUNT I

TRN# 9182797293 A001
THE STATE OF TEXAS § IN_ THE SECONI) JUDICIAL
vS. . ` § DISTRICT COURT oF

DALE RICHARD ADAMS § ' CHEROKEE COUNTY, TEXAS
SID# 07792187 .

PLEA BARGAIN' AGREEMENT AND DEFENDANT’S
WAIVER AND STATEMENTS

oFFENSE CHARGED IN INDICTMENT= COUNT I= AGGMMXML
A§sAUL:ileF-emw m gee E,\/Q\( gym A_ @N/¢,_>

 

    

oFFENSE COUNT I§ _ y

~ Jail _Enhancement

  
  

_‘§§_First Degree 58

 

FINE TN THE AMO

i

PAYABLE AT TIME oF PLEA __ PAYABLE As A cGNDITloN oF
PROBATION `

CONFINEMENT IN THE INSTITUTIONAL DIVISION OF THE TEXAS
DEPARTMENT OF CRIMINAL JUSTICE FOR TWEN'I`Y (20) YEARS.

CONFINEMENT IN A STATE IAIL FACILITY FOR

 

PROBATION OF THE ABOVE CONFINEMENT FOR YEARS

DEFERRED ADJUDICATION PROBATION FOR YEARS

RESTITUTION IN THE AMOUNT OF $» PAYABLE AS FOLLOWSZ "

ATTORNEY FEES OF $ . PAID TC CHEROKEE COUNTY

DISMISSAL OFZ ~O- ’» f “ P"`
“§>»M

  

\§1/ \
SIGNED this the day Of _M,Q)/| _' ,
4 l

205

  

 

' coUNSEL FGWENDANT

py//Q/ AW

DEFENDANT
M>

° CbUN§EL F“OR STATE

@)_/
JUD PRgS/II)ING

 

 

 

  

}, __
LERs< fxsTf'CT couRT
cgERo EE co NTY, ~rE)<As
BY DEPUTY

 

y Exhibit B

CAUSE NO. 17661 COUNTI ‘
TRN¢ 9182797293 A001

 

IN TH_E sECOND JUDICIAL

 

 

 

_`THE STATE OF TEXAS §
.. v § DISTRICT COURT oF `
DALE RICHARD ADAMS § CHEROKEE COUNTY, TEXAS
S'FATE ID No.; TXO7792187 §
JUDGMENT oF CONVICTIGN BY COURT+WAIVER oF JURY TRIAL
111de Presidiug; 4 HON. DWIGHT L. PHIFER ED:§:I‘;§§*€’“€“¢ 7/1/2010
Attom@y for state RACHEL L. PATTON §;§:;‘§§nf‘jl` - ToNDA L. CURRY

 

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

Charging lnstrument; Statute for Offense; l
INDICTMENT 1 . 22.021(3) (2) (B) Penal 0on
Date of Off`ense: ' ~ ~

6/15/2()07

 

 

 

Findings on Deadlv Weapon:

Degree of Oi`i"ense;
N/A

lST DEGREE FELONY

lel_f!ls_@f_l”l@_l@ga_m_ §§ '
TWENTY (20) YEARS INSTITU l

 
  

 

Plea to lstEnhancement *` * .` .,,;;; - ~ ' ,
"` magiaph: N/A" iii ` j ` N/A

`ngs on lSt Enhancenient

 

‘agraph: N/A; ` ”
1 1
-Date Sentence Imposed: 7/1/2010

    

 

 

P“‘Zish¥“@nt a“_d Place TWENTY YEARS`INSTITUTION l DIvIsIoi\I ' TDCJ
of Lonfmement.
' THIS sENTENCE sHALL RUN CONCURRENTLY_.

l:' SENTEN CE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR N/A.

 

 

ineF.’ _C(>_ur_t_g)it§ Restitution: Restitution Pavable to:
. a¢;//// ' [:\ VICTIM(s) (see below)
3 5 / 919 3
4 $
l:} AGENCY/AGENT (see below)
DPs Lab $

Cherokee County for Court Appointed
Attorney fees
$

 

Sex Off`ender Registration Requirements apply to the Def'endant. TEX CODE CRIM. PROC chapter 62

The age of the victim at the time of the offense was 8

Tiine "
`Qredited: (Qé DAYS

 

 

 

If Defendant is to serve sentence in countv jail or is given credit toward fine and'costs enter days credited below. l
~ .»

j_. N/A DAYS NOTES: N/A \ ` '
All pertinent information, names and assessments indicated above are incorporated into the language of the judgment belo!y§b/!?ie_f§oqp%e:”

  

judgement.doc Page lof 2

`,Hns cause was called for trial in Cherok`ev County, Texas. 'l`~he State appeared by her i_istrict Attorney.
Counsel /Waiver of Counsel (select one)
.Defendant appeared in person With Counsel. .
ij 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 la\v. lt appeared to the Court that Defendant was_me.ntally competent to
tend trial, made the plea freely and voluntarily, and was aware of the consequences of this plea. The Court received the plea and
.1tered it of record. Having heard the evidence submitted the Court found Defendant guilty of the offense indicated above In the
presence ofDefendant, the Court pi‘onounced'sentence against Defendant. ’
The Court FINDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is
GUILTY oi` the above offense. The Court FINDS the Presentence lnvestigation, 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 iines, court costs, and
restitution as indicated above.
Punishment Ontions (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 Sherift` can obey the directions of this sentence The Conrt ORDERS that upon release from
coanenient, Defendant proceed immediately to the Off“lce of the Cherokee County District Clerk, Rusk, Texas. Once there,
the Court ORDERS Dei`endant to pay, or make arrangements to pay, any remaining unpaid §nes, court costs, and restitution as
ordered by the Court above.
' m 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

      
 

    
  

       

 

above. ;~ .~;,
Y'~'~
'_,_a ';

    
 
  
 
  
 
  
 
 
 
  
  
   

proceed immediately to the Office of the..Cheroke¢.Co.unty. Distri 1 Once there, the Court ORDERS
Defendant to pay, or make arrangements{;lq.¢a §§ . §§ ' n~n.~; u maidsiignesl~ " zeiss d restitution as ordered by the Court

.' The Court ORDERS Defendant to proceed
there, the Court ORDERS Defendant to

i:] Fine Only Payment. The punishm
immediately to the Office of the Chero § g '_
pay or make arrangements to pay all fine a= a lp
Execution / Suspension ofSe if ~»§"
[Xl The Court ORDERS Defendant’s sentel;i&c
J\_] The Court ORDERS Defendant’s senteh’c§\ -_ _ m . . w , ' S §Defendant placed on community
aervision for the adjudged period (abov ` l _ * . lii” 1 t ` =`olat:e the terms and conditions of

Qmunity supervision The order settin “ `~ ` " per:vision is incorporated into this

gment by reference - `
x v

The court oRDERs that nefenda " ‘: v j § ii _

Furthermo§;:?. tgsi§'o '_§Wi ii ~ cl`:”`§i-“Ti`~¥- §§ wl mr rs a l : _
PURSUANT TO TEXAS C.C.P ART l2.45 THE COURT WILL TAKE INTO QONSIEDERATION COUN'l` ll
(CONTINUGUS SEXUAL ABUSE) GF'FELONY lDlCTED CAUSE # l766l g

 

  
     
 
 

1

. " '*\"'1 . "
§ lt II o

  

    

    
 

e time spent incarcerated

  

     

 

 

Signed and entered on 7-1-10

 

 

 

Clerk.' mb

       
    

 

 

cg - y ij¢:"rc;:ouvr.
crimier couri‘rv, texas
BY 1 - DEPUTY

 

 

Right Thumbprint

judgement.doc Page 2 of 2

l Exhibit c

No. 17661

run srA'rt or TExAs § m ri-ln-zi"” .sonrcIAL
vs § msrmcr COURT or

otter manlin AoAMs §

CHEROKEE COUNT\', TEXAS
MO'|`|ON NUNC PRO TUNC

'l`() THE HONORABLE JUDGE OF SAID COURT:

0 \l{’\\_\}
~. '-:_v ‘

 

U'J

bn Qg. ¢n'
, tire utd\'_.
..W...._‘..~~m

o{Te.\:as and moves d

~~..`. s.~ ...,¢.».M.._.»~~.`,a..

re Court to reform the Judgmcm of
Conviction by coun~Waivcr ot`Jury 'l`rial in this cause to correctly reflect that the nFFMw

for which me defendant convicted be tn`d'ecen¢y \[»/irh/a’ child.

On or about the 1“ day ofluly, 2010, the Judgment otConviction by court-Waiver

ofJury ’I`rial was signed by lodge D\vight Phifer ofthe 2‘“’ Judicial District Court Said

)udgment should correctly reflect that the of`t`ense l"or which the defendant convicted be
lndecency with a Child.

WHEREFORE, the State prays and moves this Honorable Court to correctly reflect

that the offense for which the defendant convicted be lndecency with a child t

RESPECTFLLY SUBMl'l'l`ED, _ ‘
®~A\_ n Om t v @\
v _\‘-K_

o we

 

';;
v `§a§; 0 333
AiToRNeY Fo’R STATE ;?§ ~° ?3€?:1
P.o.BoX450 \ gaf § go

Rust<,'rr~.X/\S 75785 \ §Z§ to §
S'rA'rEorTEXAS BARNo_ ‘g,; ;;»;w ;,
RAC)-rl:t24039030 § §§ z
_4

,. .

DOCUMEf:J"fiS/NUNCPRO'|`UNC/

**
No. 17661
THE STATE oF Tt-:XAS § rN THE zND JUDICIAL
vs § DISTRICT COURT or
DALE RICHARD ADAMS § CHEROKEE CoUNTY, TEXAS

ORDER GRANTING NUNC PRO TUNC

Cztme to be heard this date the l\/lotion l"or Nunc 'l`unc and same being'approved by
the Court, IT lS THEREFORE ORDERED that the Judgment correctly reflect that the

offense for which the defendant convicted be lndecency With a child.

SiGNED AND ENTERED this rhetz.jw¢ day efzzm,@,@,,zo[¢.

/

~_ _ "”Jt)o;/ RESYTN€

       

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DOCUMENTS/NUNCPRO'l`UNC/

fl§l'll:l

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l va

CAUSE NO. 17661

THE sTATE oF TEXAS § tN THE zN” JUDICIAL
vs. § DISTRICT COURT oF
DALE RICHARD ADAMS ' § CHEROKEE CoUNTY, TEXAS

WAIVER OF TIME TO FILE MOTlON F()R 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 Judgrnent 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 l 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.

/Qa¢¢ %.z/

IEFENDANT

 

   

