                                                                    ACCEPTED




                                                                           S 10Z-80-60
                                                                12-15-00075-CR
                                                   TWELFTH COURT OF APPEALS
                                                                 TYLER, TEXAS
                                                            9/8/2015 6:07:20 PM
                                                                      Pam Estes
                                                                         CLERK

    CAUSE NUMBER 12-15-00075-CR

                                          RECEIVED IN
                                    12th COURT OF APPEALS
  IN THE   COURT OF APPEALS FOR THE      TYLER, TEXAS
                                     9/8/2015 6:07:20 PM
TWELFTH    APPELLATE DISTRICT OF TEXAS PAM ESTES
                                             Clerk

                AT TYLER
                                                9/8/2015


      CHARLES BLAKE DEFORE

                    VS.

           THE STATE OF TEXAS



           CAUSE NUMBER 31,077

 IN THE 3RD JUDICIAL DISTRICT COURT

     ANDERSON COUNTY, TEXAS


           APPELLANT'S BRIEF


                  Colin D. McFall
                  Attorney at Law
                  513 North Church Street
                  Palestine, Texas 75801-2962
                  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:

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

Trial Defendant's Counsel:      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
                                                              SIOZ-80-60
Appellant:             Charles Blake DeFore
                       Hutchins Unit
                       1500 East Langdon Road
                       Dallas, Texas 75241

Appellant's Counsel:   Colin D. McFall
                       Attorney at Law
                       513 North Church Street
                       Palestine, Texas 75801-2962
                       Telephone: 903-723-1923
                       Facsimile: 903-723-0269

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

ISSUES PRESENTED

    I. THE TRIAL COURT FAILED TO ADJUDICATE APPELLATE

         GUILTY OF COUNT II, 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)        11

        Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978)          11

        Warren v. State, 784 S.W.2d 56 (Tex. App.— Houston [1St Dist.]

              1989), rev'd on other grounds....                          12

RULES AND STATUTES                                                PAGE

    TEXAS CODE OF CRIMINAL PROCEDURE

        Article 42.12, § 5(b), Texas Code of Criminal Procedure          12

    TEXAS RULES OF APPELLATE PROCEDURE

        Rule 9.4(i)(3), Texas Rules of Appellate Procedure               14

        Rule 38.1(a), Texas Rules ofAppellate Procedure                   2

        Rule 3 8.1(e), Texas Rules of Appellate Procedure                 7
                          STATEMENT OF THE CASE

      On the 27th day of September 2012, an Anderson County Grand Jury returned

a two count Indictment, charging Appellant withManufacture or Delivery of

Substance in Penalty Group 1, four (4) grams or more, but less than two hundred

(200) grams, in Count I, and Tampering with or Fabricating Physical Evidence

(with intent to impair), in Count II. (C.R., Vol. 1, Pg. 6). On the 22hd day of

February 2013, Appellant plead guilty toManufacture or Delivery of Substance in

Penalty Group 1, four (4) grams or more, but less than two hundred (200) grams in

County I, and Tampering with or Fabricating Physical Evidence (with intent to

impair), in Count II. (C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg. 59). The Trial Court

deferred a finding of Guilt and placed Appellant onCommunity Supervision forten

(10) years, in each count (C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg. 59).

      On the 7th day of January 2015, Appellee filed a Motion to Proceed with

Adjudication of Guilt and Sentence (C.R., Vol. 1, Pg. 95). On the 13th day of

February 2015, the Court conducted a hearing, consolidatedwith a Motion to

Proceed with Adjudication of Guilt and Sentence in causenumber 31,070.

      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).
                                                                                SIOZ-80-60
             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




                                       2
                                                            SIOZ-80-60
                 ISSUE PRESENTED

The Trial Court failed to adjudicate Appellant guiltyin
County II, prior to sentencing, rendering a void judgment
and depriving the Appellate Court of jurisdiction.
                             STATEMENT OF FACTS

       On the 13th 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 found the allegations

true (R.R., Vol. 1, Pg. 28, L. 17), and adjudicated Appellant guiltyon Count I

(R.R., Vol. 1, Pg. 28, L. 21) (R.R., Vol. 1, Pg. 28, L. 23). The Court then sentenced

Appellant to thirty (30) years in cause numbers31,070 and 31,077. (R.R., Vol. 1,

Pg. 36, L. 7).
                        SUMMARY OF THE ARGUMENT

              The Trial Court failed to adjudicate Appellant guiltyin
              County II, 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 a presumption of

regularity. Such presumption attains until the contrary appear. Appellant can

overcome this presumption when the record affirmatively reflects error.

       The Reporter's Record affirmativelyreflects error. The Court adjudicated

Appellant's guilt in Count I. However, contrary to the Judgment in Cause Number

31,077 reciting Adjudication of guilt,the Court failed to orally pronounce

Appellant's adjudication of guiltin Count II.

      Despite the Court's failure toorally pronounce an adjudication ofAppellant's

guilt in Count II, the Court sentenced Appellant, in cause number 31,077, to thirty

(30) years confinement.

      Because the Trial Court sentenced Appellant without first finding him guilty

in Count II, the Judgment in Count II is not final. Because the Judgment in Count

II is not final, the Appellate Court lacksjurisdiction. Without jurisdiction, the

Appellate Court must dismiss theappeal in Count II, for want of jurisdiction.




                                             IC
                                   ARGUMENT

             The Trial Court failed to adjudicateAppellant guilty in
             Count II, 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 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 uness the contrary is made to appear.

      However, Appellant can overcome the presumption of regularitywhen the

record affirmatively reflects error. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.

Crim. App. 1984).

      The Reporter's Record affirmatively demonstraes error. The Court

adjudicated Appellant's guilt inCount I (R.R., Vol. 1, Pg. 28, L. 21), (R.R., Vol. 1,

Pg. 28, L. 23). However, contrary to the Judgment in Cause Number 31,07

reciting Adjudication of guiltin Count II, the Court failed to orally pronounce

Appellant's adjudication of guiltin Count II. (R.R., Vol. 1, Pg. 29, L. 2). The Court
found the allegations contained within both Motions to Proceed with Adjudication

of Guilt and Sentence to be true(R.R., Vol. 1, Pg. 28, L. 17). However, finding an

allegation true is not an adjudication of guilt. Regarding Count II, the Court made

the following statement:

             "Now, folks, what about Count 2? I didn't — I didn't
             address Count 2. I grant the motion as to Count 2. The
             evidence was sufficient to support i, as well."

      Despite the Court's failure to pronounce an adjudication of guiltin Count II,

the Court sentence Appellant, in cause number 31,07, to thirty (30) years

confinement (R.R., Vol. 1, Pg. 36, L. 6).

      After an adjudication of guilt, all proceedings, including asessment 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 guiltin Count II. Because the

Trial Court sentenced Appellant, without first finding him guilty in Count II, the

Judgment is not final, in Count II. Because the Judgment in Count II is not final,

the Appellate Court lacks jurisdiction, in Count II. Without jurisdictionin Count II,

the Appellate Court must dismissthe appeal in Count II. Warren v. State, 784

S.W.2d 56 (Tex. App.-Houston [1st Dist.] 1989), rev'd on other grounds.
                                                                                         SIOZ-80-60
                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays the Appellate

Court find the Trial Court failed to adjudicate Appellant guilty in Count II, find the

Judgment in Count II is not final, and dismiss the appeal in Count II for want of

jurisdiction.
                      CERTIFICATE OF COMPLIANCE

      I, Colin D. McFall, Attorney of Record for the above styled Appellant,

pursuant to Rule 9.4(0(3), Texas Rules of Appellate Procedure, hereby certify the

number of words within Appellant's Brief atone thousand, seven hundred, two

(1,702).

RESPECTFULLY SUBMITTED,



            "
           14V
COLIN D. M ALL
Attorney at Law
                         rifigi r
                                      513 North Church Street
                                      Palestine, Texas 75801-2962
                                      Telephone: 903-723-1923
                                      Facsimile: 903-723-0269
Texas Bar Number:        24027498     Email: cmcfall@mcfall-law-office.com




                                       i14,
                                                                               S 10Z-80-60
                         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 AttomeyScott

Holden, at sholden@co.anderson.tx.u4 by email transmission, on thee day of

September 2015.

RESPECTFULLY SUBMITTED,


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