Opinion issued November 20, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00005-CR
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JESSE LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1296762
OPINION
A jury convicted appellant, Jesse Lopez, of the third-degree felony offense
of driving while intoxicated—third offense. 1 After finding the allegations in two
1
See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (Vernon Supp. 2014).
enhancement paragraphs true, the trial court assessed punishment at thirty-five
years’ confinement. In his sole issue on appeal, appellant contends that the trial
court violated Texas Code of Criminal Procedure article 36.01 by failing to receive
a plea of “true” or “not true” to the allegations in the enhancement paragraphs
before assessing appellant’s sentence.
We affirm.
Background
On February 23, 2011, appellant drove a van wildly around a corner onto a
residential street in Katy, Texas and smashed into a parked truck and a basketball
goalpost in a driveway before crashing into a neighboring house. Harris County
Sheriff’s Department deputies spoke with appellant, who admitted to drinking two
beers, observed appellant swaying as he stood, and detected the smell of alcohol on
appellant’s breath. Deputies administered field sobriety tests to appellant, who
demonstrated numerous clues of intoxication on each of the tests.
Because appellant had at least two prior convictions for driving while
intoxicated (“DWI”), a grand jury indicted appellant for felony DWI—third
offense under Penal Code sections 49.04(a) and 49.09(b)(2). See TEX. PENAL
CODE ANN. §§ 49.04(a), 49.09(b)(2) (Vernon Supp. 2014). This offense carries a
penalty range of two to ten years’ confinement if not enhanced. See id. § 12.34(a)
(Vernon 2011). If enhanced, this offense carries a penalty range of twenty-five
2
years’ to ninety-nine years’ confinement or confinement for life. See id. § 12.42(d)
(Vernon Supp. 2014).
In addition to the two prior misdemeanor DWI convictions alleged for
jurisdictional purposes, the indictment also contained two enhancement
paragraphs, alleging that appellant had two further prior convictions for felony
DWI. The indictment therefore read as follows:
The duly organized Grand Jury of Harris County, Texas, presents in
the District Court of Harris County, Texas, that in Harris County,
Texas, JESSE LOPEZ, hereafter styled the Defendant, heretofore on
or about February 23, 2011, did then and there unlawfully, operate a
motor vehicle in a public place while intoxicated.
It is further presented that before the commission of the offense
alleged above, on DECEMBER 30, 1998, the Defendant was
convicted of the offense of DRIVING WHILE INTOXICATED in
Cause No. 9827592, in THE COUNTY CRIMINAL COURT AT
LAW NO. 6, HARRIS County, Texas.
It is further presented that before the commission of the offense
alleged above, on FEBRUARY 22, 1999, the Defendant was
convicted of the offense of DRIVING WHILE INTOXICATED in
Cause No. 9907659, in THE COUNTY CRIMINAL COURT AT
LAW NO. 15, HARRIS County, Texas.
Before the commission of the offense alleged above, (hereafter styled
the primary offense), on DECEMBER 14, 1999, in Cause Number
0826246, in the 179TH DISTRICT COURT, of HARRIS County,
Texas, the Defendant was convicted of the felony of DRIVING
WHILE INTOXICATED.
Before the commission of the primary offense, and after the
conviction in Cause Number 0826246, was final, the Defendant
committed the felony of DRIVING WHILE INTOXICATED and was
finally convicted of that offense on AUGUST 2, 2004, in Cause
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Number 0996097, in the 232ND DISTRICT COURT, of HARRIS
County, Texas.
The jury found appellant guilty of felony DWI as charged in the indictment.
Appellant elected to have the trial court assess punishment. The trial court
did not begin the punishment phase of the trial by reading a copy of the indictment,
including the enhancement paragraphs, to appellant, and it did not receive, at that
time, appellant’s plea of “true” or “not true” to the allegations in the enhancement
paragraphs. Appellant did not object to the trial court’s failure to do so. Instead,
the punishment phase began with the trial court admitting into evidence appellant’s
stipulation of his prior criminal convictions plus the corresponding judgments and
sentences. The stipulation included the following:
1) I am the same JESSE LOPEZ convicted of the offense of
DRIVING WHILE INTOXICATED in the 179th DISTRICT
COURT of HARRIS COUNTY, TEXAS in Cause No.
0826246 on DECEMBER 14, 1999. I was sentenced to 4 years
in the Texas Department of Corrections.
2) I am the same JESSE LOPEZ convicted of the offense of
DRIVING WHILE INTOXICATED in the 232nd DISTRICT
COURT of HARRIS COUNTY, TEXAS, in Cause No.
0996097 on AUGUST 2, 2004. I was sentenced to 2 years in
the Texas Department of Corrections.
These two convictions contained in the stipulation correspond to the allegations in
the enhancement paragraphs of the indictment.
At the close of the punishment phase, the trial court had the following
exchange with appellant:
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The Court: Having reviewed the Stipulation of Evidence
indicating that the enhancement paragraph
allegations are true, I must ask you at this time,
those allegations contained in the indictment which
twice before you’ve been convicted of felonies, are
they true or not true?
[Appellant]: Yes, sir.
The Court: Very well. I accept your plea of true to the two
enhancement paragraph allegations contained in
the State’s indictment. Having been charged with
a felony offense of driving while intoxicated, the
Court having found the enhancement paragraph
allegations to be true, and jury having found you
guilty, as I said before, any reason why sentence of
law should not now be pronounced against you?
[Appellant]: No, sir.
The trial court then assessed appellant’s punishment at thirty-five years’
confinement. This appeal followed.
Reading of Enhancement Allegations
In his sole issue, appellant contends that the trial court violated Code of
Criminal Procedure article 36.01 by failing to read the allegations in two
enhancement paragraphs and receive a plea of “true” or “not true” to these
allegations before assessing his sentence.
Code of Criminal Procedure article 36.01(a)(1) provides:
A jury being impaneled in any criminal action, except as provided by
Subsection (b) of this article, the cause shall proceed in the following
order:
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1. The indictment or information shall be read to the
jury by the attorney prosecuting. When prior
convictions are alleged for purposes of
enhancement only and are not jurisdictional, that
portion of the indictment . . . reciting such
convictions shall not be read until the hearing on
punishment is held . . . .
TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1) (Vernon 2007). The reading of the
charging instrument is mandatory and serves the twin purposes of informing the
accused of the charges against him and informing the jury of the charges against
the accused. Warren v. State, 693 S.W.2d 414, 415 (Tex. Crim. App. 1985).
Article 36.01 is applicable to the punishment phase of a bifurcated trial. Id. at
415–16. Thus, in a jury trial, the reading of the charging instrument setting out the
enhancement paragraphs, as well as the defendant’s plea to the enhancement
paragraphs, is mandatory during the punishment phase of the trial. See Ex parte
Sewell, 742 S.W.2d 393, 395 (Tex. Crim. App. 1987); Reed v. State, 500 S.W.2d
497, 499 (Tex. Crim. App. 1973) (“There can be no question but that the
enhancement portion of the indictment should be read to the jury if the punishment
is to be assessed by the jury in light of Article 36.01(1).”).
The Court of Criminal Appeals has also held, however, that when the
punishment phase of the trial is held before the trial court, the Code of Criminal
Procedure does not mandate the reading of the enhancement paragraphs and the
receipt of the defendant’s plea to the enhancement paragraphs. See Reed, 500
6
S.W.2d at 499; see also Davis v. State, 970 S.W.2d 747, 749 (Tex. App.—Houston
[14th Dist.] 1998, no pet.) (“[Article 36.01] does not support Davis’ argument that
the trial court erred by failing to read the indictment before the punishment hearing
because this article concerns the procedure for trial before a jury.”); Garner v.
State, 858 S.W.2d 656, 659 (Tex. App.—Fort Worth 1993, pet. ref’d) (“[T]here is
no requirement that the enhancement paragraphs be orally read to the defendant
when punishment is assessed by the trial court alone.”); Simms v. State, 848
S.W.2d 754, 755 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (“Appellant had
the trial judge assess punishment; therefore, it was not necessary for the State to
read the enhancement paragraphs, and appellant did not have to plead to them.”).
When the trial court assesses punishment, a defendant is not required to state
an oral plea to enhancement paragraphs on the record if he has previously
stipulated to the allegations in the enhancement paragraphs. Garner, 858 S.W.2d
at 659; see also Reed, 500 S.W.2d at 499 (“At the hearing on punishment, while
represented by retained counsel, appellant stipulated to the truthfulness of the
enhancement portion of the indictment. It would be difficult to say that he was
misled as to that with which he was charged.”); Davis, 970 S.W.2d at 749
(“Having stipulated to the truthfulness of these [enhancement] paragraphs, he
cannot be heard to complain that he did not know the charges against him.”).
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Here, after a jury found appellant guilty of felony DWI, the trial court
assessed appellant’s punishment. The trial court did not read the indictment
containing the two enhancement paragraphs at the beginning of the punishment
phase.2 Instead, the State introduced, and the trial court admitted, appellant’s
stipulation of his prior convictions and the corresponding judgments and sentences.
Appellant stipulated that he had committed, among other offenses, the two felonies
alleged in the enhancement paragraphs of the indictment. At the end of the
punishment phase, prior to pronouncing appellant’s sentence, the following
exchange occurred:
The Court: Having reviewed the Stipulation of Evidence
indicating that the enhancement paragraph
allegations are true, I must ask you at this time,
those allegations contained in the indictment which
twice before you’ve been convicted of felonies, are
they true or not true?
[Appellant]: Yes, sir.
The Court: Very well. I accept your plea of true to the two
enhancement paragraph allegations contained in
2
We note that appellant did not object to the trial court’s failure to read the
enhancement paragraphs and receive his plea to the enhancement paragraphs. See
Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973) (“It would also appear
that appellant may not raise the question for the first time on appeal. Had there
been an objection, the problem could have been easily remedied by reintroducing
the evidence, if any had been offered after the enhancement allegations of the
indictment had been read, and the appellant’s plea thereto entered.”); Davis v.
State, 970 S.W.2d 747, 749 (Tex. App.—Houston [14th Dist.] 1998, no pet.)
(“The Texas Court of Criminal Appeals has stated that an appellant may not raise
this question for the first time on appeal.”); Garner v. State, 858 S.W.2d 656, 659
(Tex. App.—Fort Worth 1993, pet. ref’d) (“We find that appellant failed to
preserve this point for appeal because he failed to object.”).
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the State’s indictment. Having been charged with
a felony offense of driving while intoxicated, the
Court having found the enhancement paragraph
allegations to be true, and jury having found you
guilty, as I said before, any reason why sentence of
law should not now be pronounced against you?
[Appellant]: No, sir.
The trial court then assessed appellant’s sentence at thirty-five years’ confinement.
The record thus reflects that, although the trial court did not read the
enhancement paragraphs aloud to appellant before assessing punishment, the court
admitted appellant’s stipulation that he had committed the prior offenses alleged in
the enhancement paragraphs, received verbal confirmation from appellant that he
had been convicted of those offenses, and stated on the record that it found the
allegations in the enhancement paragraphs to be true. Because the trial court
assessed punishment, and therefore was not required to read the allegations in the
enhancement paragraphs to appellant, we hold that the trial court did not err. See
Reed, 500 S.W.2d at 499–500; Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d) (“When the trial court alone assesses a
defendant’s punishment, the court is not required to read . . . the enhancement
paragraphs or the findings to the defendant.”); Davis, 970 S.W.2d at 749; Garner,
858 S.W.2d at 659.
We overrule appellant’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Publish. TEX. R. APP. P. 47.2(b).
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