In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00044-CR
JAMIE LEE BLEDSOE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st District Court
Harrison County, Texas
Trial Court No. 12-0374X
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
In a case previously appealed, a jury had found Jamie Lee Bledsoe guilty of burglary of a
building (a state jail felony) enhanced to a second degree felony range of punishment by two prior
felony convictions.1 However, instead of enhancing the punishment range, the judgment of
conviction showed that Bledsoe was convicted of a second degree felony, and he was sentenced
to twenty years’ confinement. On appeal, this Court modified the judgment to reflect the actual
situation: that Bledsoe had been convicted of a state jail felony, with the punishment enhanced to
the level of a second degree felony. Bledsoe v. State, 480 S.W.3d 638, 639 (Tex. App.—Texarkana
2015, pet. ref’d). In that opinion, we pointed out that “[d]espite the increase in the severity of the
penalties which result, statutes enhancing punishment ranges for the primary offense do ‘not
increase the severity level or grade of the primary offense.’” Id. at 639 n.5 (quoting Ford v. State,
334 S.W.3d 230, 234 (Tex. Crim. App. 2011)); see also Ex parte Reinke, 370 S.W.3d 387, 389
(Tex. Crim. App. 2012). The trial court conducted a new punishment hearing on remand and, in
the judgment of conviction, once again recited that Bledsoe had been convicted of a second degree
felony, but sentenced him this time to confinement for eight years.
On appeal, Bledsoe argues that (1) the judgment should be modified to reflect a conviction
for a state jail felony and not a second degree felony, (2) the State violated his right to a jury trial
on punishment, and (3) the State’s use of different felony enhancement convictions constituted
double jeopardy.
1
TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(1) (West 2011) (burglary of a building), § 12.42(a) (West Supp. 2016)
(punishment for a state jail felony can be enhanced if prior offenses are proven).
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We modify the judgment to reflect a conviction for a state jail felony and affirm the
judgment, as modified.
I. We Modify the Judgment to Reflect a Conviction for a State Jail Felony
In his first point of error, Bledsoe argues that the judgment should be modified because it
erroneously states that he was convicted of a second degree felony. The State concurs with this
point.
Bledsoe was convicted of burglary of a building, a state jail felony. See TEX. PENAL CODE
ANN. § 30.02(c)(1). However, as previously stated, the judgment of conviction incorrectly lists
the degree of offense as a second degree felony. Under Section 12.425 of the Texas Penal Code,
Bledsoe’s punishment range was enhanced due to two prior felony convictions, but statutes
enhancing punishment ranges for the primary offense do not increase or alter the grade of the
primary offense. Ford v. State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011). The Texas Rules
of Appellate Procedure give this Court authority to modify judgments and correct typographical
errors to make the record speak the truth. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607,
609 (Tex. Crim. App. 1992); Land v. State, 291 S.W.3d 23, 31 (Tex. App.—Texarkana 2009, pet.
ref’d). We, therefore, modify the judgment to reflect the correct degree of the offense as a state
jail felony.
II. The State Did Not Violate Bledsoe’s Right to Trial by Jury
In his second point of error, Bledsoe contends that his right to have a jury trial on
punishment was violated.
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The Texas Code of Criminal Procedure provides, in accord with both the Federal and the
State Constitutions, that a defendant has the right of trial by jury. TEX. CODE CRIM. PROC. ANN.
art. 1.12 (West 2005). As to waiving one’s right to trial by jury, Article 1.13(a) provides:
The defendant in a criminal prosecution for any offense other than a capital felony
case in which the state notifies the court and the defendant that it will seek the death
penalty shall have the right, upon entering a plea, to waive the right of trial by jury,
conditioned, however, that, except as provided by Article 27.19, the waiver must
be made in person by the defendant in writing in open court with the consent and
approval of the court, and the attorney representing the state. The consent and
approval by the court shall be entered of record on the minutes of the court, and the
consent and approval of the attorney representing the state shall be in writing,
signed by that attorney, and filed in the papers of the cause before the defendant
enters the defendant’s plea.
TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (West Supp. 2016). Bledsoe argues that Article 1.13(a)’s
requirement that a waiver must be signed and made in person is equally applicable to the
punishment phase of the trial; he thus maintains that his rights were violated because there is no
such waiver in the record.
In this case, after remand for a new trial on punishment, a jury was empaneled and qualified
by the court, excuses for exemptions from jury service were entertained, and a recess was taken.
At that time, neither party had commenced to conduct voir dire. Although the record is not clear
as to the disposition of the jury at that point, when the court reconvened, the jury panel did not
return to the courtroom, and the case proceeded to a punishment hearing to the bench, with the
trial court finding the State’s enhancement allegations to be true and sentencing Bledsoe to eight
years’ confinement. The record contains no written waiver of Bledsoe’s right to have his
punishment determined by a jury.
4
It is well-settled law that a defendant’s constitutional right to a trial by jury does not include
the right to have a jury assess punishment. Martin v. State, 753 S.W.2d 384, 389 (Tex. Crim. App.
1988); Bullard v. State, 548 S.W.2d 13 (Tex. Crim. App. 1977), superseded by statute on other
grounds; Medina v. State, 770 S.W.2d 54, 55 (Tex. App.—Texarkana 1989, no pet.). Accordingly,
Bledsoe’s argument that his constitutional rights are implicated in this instance is without merit.
In Texas, having a jury determine punishment is a statutory right. Martin, 753 S.W.2d at 388–89.
In order to avoid forfeiture of the statutory right, a defendant must complain at trial or in a motion
for new trial. TEX. R. APP. P. 33.1(a)(1); see Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim.
App. 2001) (defendant must object to preserve argument that his right to separate punishment
hearing was violated). In the case now before us, even though it appears that Bledsoe had initially
elected to have the jury assess his punishment, the trial court (not a jury) ultimately heard the
evidence and assessed punishment. Because no objection was raised by either party at trial or
through a motion for new trial, “it is presumed that the appellant agreed that the trial judge should
assess the punishment”; therefore, this issue was not preserved for our review. Hackey v. State,
500 S.W.2d 520, 521 (Tex. Crim. App. 1973).
Even had Bledsoe’s argument been preserved, well-established caselaw renders it
ineffective. Here, Bledsoe argued that a separate signed and written waiver (such as required under
Article 1.13(a) of the Texas Code of Criminal Procedure) must be on file for the punishment phase.
However, the provisions of Article 1.13 only “pertain to the guilt-innocence phase of the trial . . .
and these provisions have never been interpreted to apply to the punishment phase of a trial.”
Martin, 753 S.W.2d 383; see Medina, 770 S.W.2d at 55.
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III. Bledsoe Was Not in Danger of Double Jeopardy
In Bledsoe’s first trial, the State alleged prior convictions for burglary of a building and
possession of a controlled substance to enhance Bledsoe’s available punishment range. On appeal,
this Court modified the judgment and reversed the case for a new trial on punishment due to the
erroneous use of a state jail felony for enhancement purposes. On remand, the State’s enhancement
paragraphs alleged different felony convictions than those used in the first trial, namely, theft and
escape. In his final point of error, Bledsoe argues that the State’s use of different enhancement
felonies than those alleged in his prior trial on punishment constituted double jeopardy.
The application of double jeopardy is an issue of law, and we review legal issues de novo.
See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); In re Hunter, 256 S.W.3d
900 (Tex. App.—Texarkana 2008, orig. proceeding).
A similar issue was addressed by the United States Supreme Court in Lockhart v. Nelson,
where, in a habeas corpus case, a federal district court held that a prior conviction offered by the
State of Arkansas could not be used to support an enhancement allegation because the offense had
been pardoned. Lockhart v. Nelson, 488 U.S. 33, 36 (1988). On remand, the state notified the
defendant of its intention to resentence him as a habitual offender, using a conviction that was not
offered or admitted during the prior sentencing hearing. Id. at 37. The Supreme Court held that
the state’s subsequent use of a different conviction to prove habitual status did not constitute a
double jeopardy violation. Id.at 41–42.
The facts of this case are quite similar to those of Lockhart. Here, this Court remanded the
case for a new trial on punishment because one of the alleged prior offenses could not be used for
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enhancement purposes, and on remand, the State’s enhancement paragraphs alleged different prior
offenses than those which had been previously alleged in the first trial. Based on the Supreme
Court’s holding in Lockhart, we find that the State’s use of different enhancement convictions did
not constitute a double jeopardy violation. Id. We overrule this point of error.
Accordingly, we modify the judgment of conviction to reflect that Bledsoe was convicted
of the state jail felony of burglary of a building, but that the penalty for that offense is enhanced to
the level of a second degree felony. We affirm the judgment of conviction, as modified.
Bailey C. Moseley
Justice
Date Submitted: September 15, 2016
Date Decided: October 14, 2016
Do Not Publish
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