                                                                                   ACCEPTED
                                                                               12-15-00075-CR
                                                                  TWELFTH COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                        10/16/2015 12:23:15 PM
                                                                                     Pam Estes
                                                                                        CLERK

ORAL ARGUMENT NOT REQUESTED

                  CAUSE NO. NO. 12-15-00075-CR                 FILED IN
                                                       12th COURT OF APPEALS
                                                             TYLER, TEXAS
                           IN THE                      10/16/2015 12:23:15 PM
                     COURT OF APPEALS                         PAM ESTES
                  TWELFTH DISTRICT OF TEXAS                     Clerk
                        TYLER, TEXAS

__________________________________________________________________

                    CHARLES BLAKE DEFORE,
                                Appellant

                               VS.

                      THE STATE OF TEXAS,
                                    Appellee
__________________________________________________________________

                      Appeal in Cause No. 31077
            On Appeal from the Third Judicial District Court
                      of Anderson County, Texas
__________________________________________________________________

                        BRIEF FOR STATE
__________________________________________________________________


                                     Scott C. Holden
                                     1st Asst. Criminal District Attorney
                                     Anderson County, Texas
                                     Anderson County Courthouse
                                     Palestine, Texas 75801
                                     Texas Bar No. #24036795
                                     903/723-7400



                                 i
            IDENTITY OF PARTIES AND COUNSEL

JUDGE PRESIDING:

    THE HONORABLE BASCOM W. BENTLEY III

DEFENDANT/APPELLANT:

    CHARLES BLAKE DEFORE

FOR THE DEFENDANT:

    APPELLATE ATTORNEY
    COLIN MCFALL
    513 N. CHURCH ST.
    PALESTINE, TEXAS 75801

    TRIAL COUNSEL
    JEFF HERRINGTON
    509 N. CHURCH ST.
    PALESTINE, TX 75801


FOR THE STATE:


    SCOTT C. HOLDEN
    1ST ASSISTANT CRIMINAL DISTRICT ATTORNEY
    ANDERSON COUNTY COURTHOUSE
    500 N. CHURCH STREET, RM. 38
    PALESTINE, TX 75801
    sholden@co.anderson.tx.us
    (903) 723-7400




                             ii
                             TABLE OF CONTENTS

                                                                    PAGE

Identity of Parties and Counsel .     .         .   .   .   .   .   ii

Table of Contents .      .      .     .         .   .   .   .   .   iii

Index of Authorities     .      .     .         .   .   .   .   .   iv

Statement of the Case    .      .     .         .   .   .   .   .   1

Issues Presented   .     .      .     .         .   .   .   .   .   1

Statement of Facts .     .      .     .         .   .   .   .   .   1

Summary of Argument .           .     .         .   .   .   .   .   2

State’s Reply to Appellant’s Point of Error 1       .   .   .   .   2-4

Prayer       .     .     .      .     .         .   .   .   .   .   5

Certificate of Service   .      .     .         .   .   .   .   .   6

Certificate of Word Count       .     .         .   .   .   .   .   6




                                          iii
                         INDEX OF AUTHORITIES

Cases                                                                    Page

Jones v. State, 795 S.W.2d 199 (Tex. Crim. App. 1990)         .   .      3

Parks v. State, 960 S.W.2d 234 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd)
.     .     .      .    .    .     .     .    .     .      .     .      3

Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978)       .   .      2,3


Statutes and Rules

Tex. Penal Code Ann. § 12.34(a).     .        .   .       .   .   .     4

Tex. Penal Code Ann. § 37.09(c).     .        .   .       .   .   .     4




                                         iv
                         STATEMENT OF THE CASE


         The Statement of the case is as stated in appellant’s brief page 6. The

Reporter’s Record will be referred to as “V1, V2, etc.” unless otherwise

noted.     The Clerk’s Record will be referred to as “CR1” or “CR2”.

Appellant’s Brief will be referred to as “AB” unless otherwise noted.

Appellee is referred to as “State”.



                             ISSUES PRESENTED



POINT OF ERROR 1:

         Appellant contends the trial court failed to adjudicate appellant guilty

prior to sentence rendering the judgment void.



STATEMENT OF FACTS

         Are as stated in Appellant’s brief.




                                        -1-
                       SUMMARY OF ARGUMENT



POINT OF ERROR 1 RESTATED:

      Appellant contends the trial court failed to adjudicate appellant guilty

prior to sentence rendering the judgment void.

                                 ARGUMENT

      The court memorializing the sentence in the written judgment and the

finding appellant guilty is sufficient.



      STATE’S REPLY TO APPELLANT’S POINT OF ERROR:

      When the trial court conducts a hearing on the adjudication of guilt

and then holds the assessment of punishment in abeyance and orders a

presentence investigation, the court necessarily implies that it has found the

defendant guilty. Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App.

1978). The court of criminal appeals has observed that beyond the

pronouncement of sentence "no further ritual or special incantation from the

bench is necessary to accomplish an adjudication of guilt." Jones v. State,

795 S.W.2d 199, 201 (Tex. Crim. App. 1990). Further, a written judgment

is valid even in the absence of an express oral pronouncement of guilt by the


                                          -2-
trial court. Parks v. State, 960 S.W.2d 234, 238 (Tex. App.--Houston [1st

Dist.] 1997, pet. ref'd) (citing Villela v. State, 564 S.W.2d 750, 751 (Tex.

Crim. App. 1978)).

      In the case at bar, the trial court held hearings on both cause numbers

31070 and 31077 at the same time. Witnesses testified to the facts alleged in

both motions to adjudicate and at the conclusion of the hearings. At the

conclusion of the motion to adjudicate hearing the trial court affirmatively

stated, “I find the allegations, including the allegation of failure to report the

arrest, to be true. All the allegations as amended from the testimony are

granted.” (V2, P28, L17-20)          Clearly granting the State’s Motions to

Adjudicate.

      The trial court then stated:

              In Cause Number 31,077, the Court hereby finds and
      adjudges you guilty as charged of the offense of manufacture
      and delivery of a controlled substance.
              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 it, as well. Same and all
      shall be the order and judgment of this Court. So ordered.
      (V2, P28-29, L21-7)




                                       -3-
This is show later in the sentencing hearing the court pronounced “All right.

Having found and adjudged you guilty in both of these causes, I hereby

assess your punishment in both causes to 30 years in the Institutional

Division of the Texas Department of Corrections.” (V2, P36, L6-10) and the

judgment in this cause reflects the appellant was sentenced to 30 years.

(CR127) as does the docket sheet. (CR130)

      The trial court clearly adjudicated the defendant guilty and sentenced

him to 30 years TDCJ. However, Count 2, Tampering with Evidence has a

sentencing range of 2 to 10 years in TDCJ. Tex. Penal Code Ann. §

37.09(c); Tex. Penal Code Ann. § 12.34(a). As it is unclear what sentence

the trial court gave the defendant in Count 2, this Court should remand the

case back down to the trial court for a pronouncement of sentence within the

punishment range of Count 2.




                                    -4-
                                  PRAYER

      WHEREFORE the Appellee prays that the Court upon consideration

hereof affirm the decision of the Trial Court as to adjudication and remand

the case to the trial court for sentencing within the proper punishment range.



                                       Respectfully submitted by,




                                       SCOTT C. HOLDEN
                                       1st Asst. Criminal District Attorney
                                       Anderson County, Texas
                                       Anderson County Courthouse
                                       500 N. Church Street, RM 38
                                       Palestine, Texas 75801
                                       Texas Bar No. #24036795
                                       (903)723-7400




                                     -5-
                       CERTIFICATE OF SERVICE


      I hereby certify that a true copy of the foregoing Brief for the State

has been delivered via fax/email to: Colin McFall on this the 16th day of

October, 2015, in accordance with the provisions of the Texas Rules of

Criminal and Appellate Procedure.



                           ___________________________________
                           SCOTT C. HOLDEN, 1ST ASSISTANT
                           CRIMINAL DISTRICT ATTORNEY



                   CERTIFICATE OF WORD COUNT


I also certify that the entire word count of the State’s reply brief is 1118
words.


                           ___________________________________
                           SCOTT C. HOLDEN, 1ST ASSISTANT
                           CRIMINAL DISTRICT ATTORNEY




                                      -6-
