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
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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
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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
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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
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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
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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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