In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00174-CR
ROBERT PRESTON RAY A/K/A ROBERT D. RAY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the Criminal District Court 4
Tarrant County, Texas
Trial Court No. 1226573D, Honorable Michael Thomas, Presiding
September 5, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Robert Preston Ray was convicted of burglary of a habitation upon an open plea
of guilty and sentenced to twenty-five years imprisonment. In challenging his
conviction, he claims 1) his punishment was void due to it exceeding the statutory
range, 2) he received ineffective assistance of counsel because his attorney failed to
argue that a prior conviction for a felony of the third degree should be treated as a
conviction for a class A misdemeanor or a state jail felony offense, and 3) he received
ineffective assistance of counsel because his counsel waived a reporter’s record of the
plea hearing. We affirm the judgment.
Issue 1 – Void Punishment
In his first issue, appellant argues that his sentence of twenty-five years is void
since it allegedly exceeds the permissible range of punishment. It purportedly exceeds
the permissible range since the trial court never satisfied a prerequisite for assessing
that amount, the prerequisite being an oral pronouncement that the enhancement
allegations in the indictment were true. We overrule the issue.
The indictment contained an “Habitual Offender Notice” in which the State
alleged that appellant had been convicted in 1999 of being a felon in possession of a
firearm and in August of 1993 of burglarizing a vehicle. Both were felony convictions.
Furthermore, appellant judicially confessed (in writing) that not only were “[a]ll facts
alleged in the indictment . . . true and correct” but also that “[a]ll enhancement and
habitual [offender] allegations . . . [were] true and correct,” with an exception not here
pertinent. At the sentencing hearing, the trial court noted that appellant pled that the
habitual offender allegations were true and then sentenced him as an habitual offender
to the minimum term of twenty-five years imprisonment. However, it did not orally
pronounce that the enhancement allegations were true. Instead, it stated in its
judgment that the enhancement paragraphs were true and specifically incorporated the
following passage in the same document: “HABITUAL OFFENDER NOTICE – TRUE.”
Unless the enhancement allegations were found true, appellant could not have
been sentenced to prison for twenty-five years; this is so since the maximum term for
the second degree felony of burglarizing a vehicle, see TEX. PENAL CODE ANN. §
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30.02(c)(1) (West 2011), was twenty years. Id. § 12.33(a). In other words, it took a
finding of true to the enhancement paragraph to elevate the sentence to a twenty-five-
year term. See id. § 12.42(d) (West Supp. 2012). And, because the trial court did not
orally find the allegations to be true, according to appellant, he could not have been
assessed the greater punishment. We disagree.
Just as a trial court can implicitly find an accused guilty without uttering the word
“guilty” while pronouncing sentencing, Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim.
App. 1978), it can implicitly find enhancement allegations to be true. Waggoner v.
State, No. 11-07-00335-CR, 2009 Tex. App. LEXIS 4805, at *8 (Tex. App.–Eastland
June 25, 2009, pet. ref’d) (not designated for publication) (wherein the reviewing court
determined that the finding of true was implicit in the trial court's revocation of
Waggoner's community supervision and ordering of a presentence investigation). And
by acknowledging that appellant had pled true to the enhancement paragraph,
pronouncing sentence at twenty-five years, and ultimately writing in the judgment that
the allegations were true, the trial court at bar implicitly pronounced that the
enhancement or habitual offender allegations were true.
Issue 2 – Failure to Object to Enhancement
In his second issue, appellant would have us conclude that his trial counsel was
ineffective since he did not argue that a prior felony conviction should be treated (for
purposes of punishment) as a class A misdemeanor or state jail felony. 1 Why counsel
did not so argue appears nowhere in the record. Indeed, appellant acknowledges in his
brief that he raises the claims of ineffectiveness for the first time on appeal. So, it can
1
Apparently, the offense was a felony when committed but legislatively changed to a class A
misdemeanor. Appellant acknowledges, though, that the conviction was and remains a felony.
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be said that trial counsel lacked the opportunity to address the matter or otherwise
justify his omission. And, that is fatal to appellant's issue, according to the opinion in
Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012). The issue is
overruled.
Issue 3 – Waiver of Reporter’s Record
In his third issue, appellant argues that his counsel again was ineffective for
allowing him to waive the presence of a court reporter at his plea hearing. That the
presence of a reporter may be waived is beyond dispute. See TEX. R. APP. P. 13.1(a)
(stating that a court reporter must attend court sessions and make a full record of the
proceedings unless excused by agreement of the parties). Here, the record reveals that
appellant waived the presence of the reporter via the plea admonishments signed by
him, his attorney, counsel for the State, and the trial court. Furthermore, his trial
attorney was not afforded opportunity below to explain (via a motion for new trial or
otherwise) why he permitted that. Thus, we cannot but overrule the issue on the
authority of Menefield v. State, supra.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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