dissenting.
I would affirm the judgment of the trial court. In Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2003), the legislature made it an offense for a person to knowingly or intentionally possess a controlled substance listed in Penalty Group 1, unless the substance had been obtained from or prescribed by a practitioner acting in the course of professional practice. Cocaine is a Penalty Group 1 offense. The punishment for committing that offense depends upon various factors set forth in the statutes.
The amount of cocaine possessed is one of the factors affecting the length of punishment for possessing it. In Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003), the legislature provided that an offense under Section 481.115(a) is a state jail felony if the amount possessed is less than one gram. In subsequent subsections of Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003), the penalties for violating Section 481.115(a) increase as the amount possessed increases.
The penalty for violating Section 481.115(a) not only increases as the amount possessed increases but also increases if the substance is possessed within certain distances of statutorily defined “drug-free zones.” In Tex. Health & Safety Code Ann. § 481.134(d)(1) (Vernon Supp.2006), the legislature provided that an offense that was otherwise classified under Section 481.115(b) (state jail felony for possession of cocaine under one gram) became a third degree felony if the offense was committed “in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board.”
Although a grand jury indicted appellant for possession of cocaine of more than one but less than four grams, a third degree felony, the evidence revealed that the amount was under one gram, a state jail felony. After the close of testimony pertaining to whether appellant was guilty, the trial court said: “The Court does note that the amount of controlled substance that was testified to would be a state jail felony.” The trial court further stated: “I find the evidence sufficient to find the Defendant guilty beyond a reasonable doubt of a state jail felony of possession of cocaine in an amount of less than one *551gram, and that is the finding of the Court.” All of these statements were correct.
The trial to the court continued at a later date. At the beginning of the “sentencing hearing,” the trial court said: “Mr. Campbell, the Court found you guilty of the state jail felony of possession of cocaine in a drug-free zone.” Because this was a trial to the court, and not bifurcated, the trial court had the authority to add the “drug-free zone” enhancing factor when it did. The decision of the trial court was not fixed until it rendered judgment on guilt and punishment after all the evidence and arguments had been heard. Barfield v. State, 63 S.W.3d 446, 451 (Tex.Crim.App.2001). The offense “otherwise punishable under Section ... 481.115(b)” became a felony of the third degree because the trial court found that appellant committed the offense in a drug-free zone. Section 481.134(d)(1). The amount possessed in this case was a state jail felony amount. It is the place of possession rather than the amount possessed which results in the offense becoming a third degree felony.
At the start of the sentencing hearing, the trial court had found that appellant had committed state jail felony possession of cocaine as provided in Section 481.115(a) and that he had committed the offense in a drug-free zone as provided in Section 481.134(d)(1). Together, those findings result in a third degree felony. The trial court told appellant before it set his punishment that “[t]he Court does note this is a state jail felony that’s been enhanced.” In explaining why it was going to “deviate toward the lower end of the range of punishment,” the trial court said that it was because “it is, in fact, a state jail felony.” I think that it is clear that the trial court was referring to the amount possessed and that this was not a finding but, rather, was as the trial court indicated an explanation of why it was setting punishment at the lower end of the range for a third degree felony enhanced by two prior felony convictions. The trial court had already made its findings that appellant possessed less than one gram of cocaine in a drug-free zone. It is clear from the trial court’s admonishment regarding punishment that it certainly knew that the state jail possession was enhanced to a third degree felony when it found that the offense occurred in a drug-free zone.
After admonishing appellant, the trial court assessed his punishment at thirty-five years, a period of time within the punishment range applicable in this case. Tex. Pen.Code Ann. § 12.42(d) (Vernon Supp.2006). The written judgment provides that appellant was convicted of possession of cocaine in a drug-free zone, a third degree felony that was enhanced with two prior felonies. That is the same thing that the trial court had already found. I would hold that the sentence in this case is legal and that the written judgment does not conflict with the oral pronouncement. I would overrule appellant’s sole issue and affirm the judgment of the trial court.