                                                                    ACCEPTED
                                                                12-15-00074-CR
                                                   TWELFTH COURT OF APPEALS
                                                                 TYLER, TEXAS
                                                            9/7/2015 6:40:55 PM
                                                                      Pam Estes
                                                                         CLERK

     CAUSE NUMBER 12-15-00074-CR

                                        RECEIVED IN
                                  12th COURT OF APPEALS
  IN THE COURT OF APPEALS FOR THE      TYLER, TEXAS
                                   9/7/2015 6:40:55 PM
TWELFTH APPELLATE DISTRICT OF TEXAS PAM ESTES
                                           Clerk

               AT TYLER

                                                9/7/2015

        CHARLES BLAKE DEFORE

                  VS.

         THE STATE OF TEXAS



         CAUSE NUMBER 31,070

  IN THE 3RD JUDICIAL DISTRICT COURT

      ANDERSON COUNTY, TEXAS


         APPELLANT'S BRIEF


                 Colin D. McFall
                 Attorney at Law
                 513 North Church Street
                 Palestine, Texas 75801-2965
                 Telephone: 903-723-1923
                 Facsimile: 903-723-0269
                 Email:       cmcfall@mcfall-law-office.corn
                 Counsel for Appellant
                   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:                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
                                                              S I OZ-L0-60
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

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 [1st 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




                                     51
                           STATEMENT OF THE CASE

       On the 27th 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 22nd 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 7th day of January 2015, Appellee filed a Motion to Proceed with

Adjudication of Guilt and Sentence (C.R., Vol. 1, Pg. 64). On the 13th 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).
                                                                                S I OZ-L0-60
             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 request Oral Argument
                                                                                    S 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.
                             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 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.
                                                                                     S I OZ-L0-60
                                   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
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 [1st Dist.] 1989), rev' d on other grounds.
                                                                                        S I OZ-L0-60
                                      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.




                                           (3,
                                                                                    S I OZ-L0-60
                      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,


                                   513 North Church Street
                                   Palestine, Texas 75801-2962
COLIN D. FALL                      Telephone: 903-723-1923
Attorney at Law                    Facsimile: 903-723-0269
Texas Bar Number:        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 14th day of

April 2014.

RESPECTFULLY SUBMITTED,


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