Opinion
No. 05-16-00923-CR
03-28-2017
KERRY LEE LEGGETT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F16-23431-I
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Richter
Opinion by Justice Myers
The Hon. Martin Richter, Justice, Assigned.
Appellant Kerry Lee Leggett appeals his conviction for possession with the intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams, and the enhanced punishment of twenty-five years' imprisonment. In two issues, he contends the twenty-five year prison sentence was excessive and disproportionate and that the evidence is insufficient to prove the enhancement allegations. We affirm.
DISCUSSION
I. Sentencing Proportionality
In his first issue, appellant argues his sentence of twenty-five years was excessive and disproportionate punishment for the actions for which he was convicted. The State argues this issue was not preserved for appellate review or, alternatively, that the twenty-five-year sentence was not disproportionate.
To preserve error for appellate review, the record generally must show the appellant made his complaint known to the trial court by a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). To preserve a complaint that the sentence was disproportionate to the crime committed, appellant must have specifically objected on that basis at the time the sentence was pronounced or in a post-trial motion. Bell v. State, 326 S.W.3d 716, 724 (Tex. App.—Dallas 2010, pet. dism'd, untimely filed); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ("[I]n order to preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired."); see also Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.) (constitutional rights, including the right to be free from cruel and unusual punishment, may be waived). The record shows appellant did not complain that the sentence was excessive or grossly disproportionate to the crime, either at the time it was imposed or in a motion for new trial. Accordingly, appellant has not preserved this complaint for review. See Bell, 326 S.W.3d at 724; Castaneda, 135 S.W.3d at 723. We overrule appellant's first issue.
II. Sufficiency of the Evidence to Support Enhancement
In his second issue, appellant contends the evidence is legally insufficient to prove he committed the offenses identified in the enhancement allegations. Appellant's argument is that he did not enter a plea to the enhancement paragraphs; there is no evidence proving up the convictions; nor was there an actual stipulation of the enhancement paragraphs presented at trial. Regarding the enhancement paragraphs, appellant correctly points out that the plea agreement, which was signed by the defendant, defense counsel, and the State, leaves blank the spaces provided for a plea of true or not true to the enhancement paragraphs. Also, when the trial court asked appellant if he pleaded true or not true to the enhancements, his response was "yes, sir," which, as appellant asserts, "is an affirmative response that he plea[d]s one or the other, but it is certainly not a plea of true."
The law concerning sufficiency of the evidence to prove enhancement for habitual felony offenders is well known. See, e.g., Ex parte Miller, 330 S.W.3d 610, 624 (Tex. Crim. App. 2009) (op. on reh'g). The State had the burden of proving beyond a reasonable doubt that appellant committed the two previous felonies, the second of which is for an offense that occurred subsequent to the first previous conviction having become final. See Jordan v. State, 256 S.W.3d 286, 291 (Tex. Crim. App. 2008) ("Explaining how Section 12.42(d) operates, we have said that '[t]he [chronological] sequence of events must be proved as follows: (1) the first conviction becomes final; (2) the offense leading to a later conviction is committed; (3) the later conviction becomes final; (4) the offense for which defendant presently stands accused is committed.'") (quoting Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987)); see also TEX. PENAL CODE ANN. § 12.42(d).
A defendant's plea of true to an enhancement paragraph, standing alone, is sufficient to support a finding of true without any additional evidence. See Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984); Jenkins v. State, No. 05-98-00614-CR, 1999 WL 219460, at *2 (Tex. App.—Dallas Apr. 16, 1999, no pet.) (not designated for publication). A plea of true may be entered by counsel on a defendant's behalf. See Tindel v. State, 830 S.W.2d 135, 137 (Tex. Crim. App. 1992); Pedraza v. State, No. 05-13-01391-CR, 2015 WL 2265791, at *3 (Tex. App.—Dallas May 13, 2015, no pet.) (mem. op., not designated for publication); Smith v. State, Nos. 05-97-00639-CR, 05-97-00640-CR, & 05-97-00641-CR, 1999 WL 99082, at *1 (Tex. App.—Dallas Feb. 26, 1999, pet. ref'd) (not designated for publication); see also Winters v. State, No. 06-09-00169-CR, 2010 WL 1555503, at *2 (Tex. App.—Texarkana Apr. 19, 2010, no pet.) (mem. op., not designated for publication). A defendant's plea of "true" to enhancement paragraphs also relieves the State of its burden of proving prior convictions alleged for enhancement and forfeits a defendant's right to challenge the evidentiary sufficiency supporting enhancement even when the enhancement paragraph contains no allegations as to that statutory requirement. See, e.g., Rose v. State, Nos. 05-12-01154-CR, 05-12-01155-CR, 05-12-01156-CR, & 05-12-01157-CR, 2013 WL 3947271, at *3 (Tex. App.—Dallas July 29, 2013, pet. ref'd) (mem. op., not designated for publication); Childs v. State, No. 05-09-01225-CR, 2011 WL 285851, at *4 & n. 2 (Tex. App.—Dallas Jan. 31, 2011, pet. ref'd) (mem. op., not designated for publication).
The indictment in this case contained two enhancement paragraphs: It alleged a prior felony conviction for possession of a controlled substance in Dallas County in 2013, and, prior to the commission of that offense, a felony conviction for delivery of a controlled substance in Dallas County in 1990. According to the reporter's record of the plea hearing, at the beginning of the plea colloquy, the trial court asked appellant, "Paperwork I have from you, [defense counsel] and the prosecutor tells me you're going to waive a jury, plead guilty to this new offense and true to the two paragraphs alleging former convictions. Am I reading that correctly?" Appellant responded, "Yes, sir." Then, when appellant was arraigned, defense counsel informed the trial court that appellant "pleads guilty to that offense exactly as alleged, true to the two enhancement paragraphs, [and] waives constitutional right to jury trial." The trial court asked appellant whether he pleaded guilty or not guilty to the charged offense, and appellant responded, "Guilty." When the trial court asked appellant whether he pleaded true or not true to the enhancement paragraphs alleging former convictions, appellant answered, "Yes, sir," to which the trial court said, "Take that to be true." There was no objection from the defense to these proceedings.
The trial court then instructed the parties to "[g]o ahead with the evidence," which included a written judicial confession—signed by appellant, defense counsel, and the State—that appellant committed the offense of possession of a controlled substance with intent to deliver "exactly as alleged in the indictment in this cause," and a stipulation of evidence. Appellant also testified. At the end of the hearing, the court found appellant guilty, found the two enhancement paragraphs true, and set punishment at twenty-five years' imprisonment.
Appellant was not required to personally enter the plea to the enhancement allegations. See Tindel, 830 S.W.2d at 137. As in Tindel, appellant was present in open court when the State read the enhancement allegations and the trial court asked for the plea. See id. Appellant's attorney had authority to act on appellant's behalf and respond to the inquiries by the court. The record in this case shows appellant pleaded "true" to the enhancement allegations when his attorney answered "true" on appellant's behalf. Therefore, we conclude there is sufficient evidence in the record to support the trial court's findings of true regarding the enhancement paragraphs. We overrule appellant's second issue.
Because the plea of true to the enhancement paragraphs entered by counsel on appellant's behalf is sufficient to support the trial court's findings of true, we do not address, much less endorse, the State's contention that the judicial confession signed by appellant "embraced the enhancement allegations." Although that judicial confession stipulates appellant committed the offense of possession of a controlled substance with intent to deliver "exactly as alleged in the indictment," there is no stipulation that the two enhancement paragraphs are true. See Ford v. State, 243 S.W.3d 112, 117 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (quoting Wilson, 671 S.W.2d at 524) (judicial confession to the truth of the enhancement paragraphs relieves States of its burden of proving the allegations "because a plea of 'true' constitutes 'evidence and sufficient proof to support the enhancement allegation.'").
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. 47
160923F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F16-23431-I.
Opinion delivered by Justice Myers. Justices Lang-Miers and Richter participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 28th day of March, 2017.