Charles Blake Defore v. State ( 2015 )

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.
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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.
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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
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