Opinion issued February 1, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-01006-CR
TERISA ARLENE FORD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 870147
O P I N I O N
Appellant, Terisa Arlene Ford, pleaded guilty to robbery without an agreed recommendation on punishment. See Tex. Pen. Code Ann. § 29.02 (Vernon 2003). The trial court deferred adjudication of appellant's guilt, withheld a finding on the two enhancement paragraphs, and placed appellant on community supervision for 10 years. The trial court also fined appellant $500. Later finding that she had violated the terms of her community supervision, the trial court adjudicated appellant guilty, made a finding of true on the two enhancement paragraphs, and sentenced her to 25 years' imprisonment. In her sole point of error, appellant argues that the trial court abused its discretion when it found both enhancement paragraphs true and sentenced her to 25 years' imprisonment.
We reverse the trial court's judgment in part and remand for a new punishment hearing.
Facts and Procedural History
On February 22, 2002, appellant was indicted for robbery, a second degree felony. The indictment also included enhancement paragraphs for two previous felony convictions, the second of which the indictment alleged occurred after the first had become final. On April 6, 2001, appellant pleaded guilty to robbery. The court admonished appellant in writing that, because of her status as an habitual offender, the range of punishment in her case was imprisonment for 25 to 99 years, or life. Appellant did not initial this admonition. In the document entitled "Statements and Waivers of Defendant," appellant initialed the paragraphs reading:
(2) I understand the admonitions of the trial court set out herein;
. . . .
(7) I understand that if the Court grants me Deferred Adjudication . . . [and] determines that I violated a condition of probation, . . . the Court may assess my punishment within the full range of punishment for this offense . . .; [and]
. . . .
(11) Joined by my counsel, I state that I understand the foregoing admonitions and I am aware of the consequences of my plea . . . .
Appellant, along with her attorney, also signed her full name at the end of this document. Appellant also signed a document entitled "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession." The first page of this document recited the charged offense and both enhancement paragraphs; the second page read, in part,
I understand the above allegations and I confess that they are true and that the acts alleged above were committed on December 31, 2000.
. . . .
I intend to enter a plea of guilty . . . .
On July 19, 2001, the trial court entered an order deferring adjudication of appellant's guilt, withheld a finding on the two enhancement paragraphs, and placed appellant on community supervision for 10 years. The trial court also assessed a $500 fine. Next to "Plea to Enhancement Paragraph(s)" on the order deferring adjudication, "N/A" is circled, rather than "True" or "Not True."
On May 17, 2005, the State filed a motion to adjudicate appellant's guilt, alleging that appellant had violated several conditions of her community supervision. On September 8, 2005, the trial court held a hearing on the State's motion to adjudicate guilt, and appellant pleaded "not true" to the State's allegations in the motion. After taking testimony from several witnesses, including appellant, the trial court found that appellant had violated several conditions of her community supervision and found her guilty of robbery. The court then asked if either defense counsel or the State had anything else to offer before proceeding with sentencing; neither had anything else to offer. The trial judge then addressed appellant,
[T]he Court having found you guilty of the offense of robbery, the Court at this time finds true the enhancement paragraph [sic] in the underlying indictment. The Court, specifically notes for the record that at the time Ms. Ford was placed on deferred adjudication, on July 19th, 2001, the Court withheld a finding of true on the enhancement paragraphs.
The Court hereby at this time now finds each enhancement paragraph to be true, and the Court hereby assesses your punishment at 25 years confinement in the Texas Department of Criminal Justice.
Upon announcement of her sentence, the trial court asked appellant, "Do you have anything to say why the sentence . . . should not be pronounced against you?" Appellant began to say something, but defense counsel interrupted and said, "Her question is, Your Honor, is [sic] enhancements were at that time how come enhanced now?" The trial court did not answer the question.
Discussion
In her sole point of error, appellant argues that because she never entered a plea to either enhancement paragraph, the trial court abused its discretion when it found both enhancement paragraphs in the indictment true and sentenced her to 25 years' confinement.
Appellant was indicted for robbery, a second-degree felony. See Tex. Pen. Code Ann. § 29.02 (Vernon 2003). Under the Texas Penal Code, a second-degree felony is punishable by imprisonment for two to 20 years. Id. § 12.33(a) (Vernon 2003). However, upon a showing that the defendant has two previous final felony convictions and that the second previous felony conviction is for an offense that occurred after the first previous conviction had become final, a second-degree felony is punishable by imprisonment for 25 to 99 years, or life. Id. § 12.42(d) (Vernon Supp. 2006).
Article 36.01 of the Texas Code of Criminal Procedure requires that the State read the charging instrument to the defendant. Tex. Code Crim. Proc. Ann. art. 36.01(a) (Vernon Supp. 2006); Ex parte Sewell, 742 S.W.2d 393, 395 (Tex. Crim. App. 1987). The rationale for this rule is that, until the charging instrument is read to the accused and he pleads to it, no issue is joined upon which to try him. Ex parte Sewell, 742 S.W.2d at 395. This rule of law also applies to enhancement paragraphs that are alleged in the charging instrument. If that part of the charging instrument containing the enhancement paragraphs is not read and the accused does not enter a plea to the enhancement paragraphs, no issue is joined upon which to enhance his punishment. Id.; Hernandez v. State, 190 S.W.3d 856, 867 (Tex. App.--Corpus Christi 2006, no pet.).
Although article 36.01 is applicable only after a jury has been impaneled, (1) the Texas Court of Criminal Appeals has held that it is also applicable to the penalty phase of a bifurcated trial, (2) and we see no reason why the rationale for this rule would not apply here as well. Following a finding that a defendant has violated a condition of his deferred adjudication community supervision and an adjudication of guilt, "all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred." Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon 2006) (emphasis added).
Here, the indictment included enhancement paragraphs for two previous felony convictions, the second of which occurred after the first had become final. Appellant entered a guilty plea to the primary offense of robbery on April 6, 2001, but the record does not indicate that appellant entered a plea to the enhancement paragraphs at that time. (3) Almost four years later, the State filed a motion to adjudicate guilt. On September 8, 2005, the trial court held a hearing on the State's motion to adjudicate, found that appellant had violated several conditions of her community supervision, and adjudicated her guilty of robbery. After ascertaining that neither appellant nor the State had anything further to offer, the trial court found the enhancement paragraphs true and sentenced appellant as an habitual offender. At no time during this hearing did the State read to appellant the enhancement paragraphs in the indictment; nor did the trial court give appellant an opportunity to enter a plea to the enhancement paragraphs. Thus, no issue was joined upon which to enhance appellant's punishment. See Ex parte Sewell, 742 S.W.2d at 395; Hernandez, 190 S.W.3d at 867. The State, therefore, was not relieved of its burden to prove what was alleged in the enhancement paragraphs, (4) and the trial court abused its discretion when it sentenced appellant to 25 years' confinement.
We sustain appellant's sole point of error.
CONCLUSION
We reverse the judgment of the trial court in part and remand the cause for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2006).
Evelyn V. Keyes
Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Publish. Tex. R. App. P. 47.2(b).
1. Tex. Code Crim. Proc. Ann. art. 36.01(a) (Vernon Supp. 2006).
2. Warren v. State, 693 S.W.2d 414, 415 (Tex. Crim. App. 1985).
3. Appellant waived the presence of a court reporter.
4. If a defendant pleads "not true" or "not guilty" to an enhancement paragraph, the
State is required to introduce evidence in support of the allegation alleged therein. See
Hernandez v. State, 190 S.W.3d 856, 867 (Tex. App.--Corpus Christi 2006, no pet.). If a
defendant pleads "true" or "guilty" to an enhancement paragraph, however, the State is
relieved of its burden to prove what is alleged in that paragraph. Ex parte Sewell, 742
S.W.2d 393, 396 (Tex. Crim. App. 1987).