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reforming trial court's "clearly incorrect" notations of "N/A" in regard to enhancement paragraphs to show pleas and findings of true to enhancement paragraphs
Summary of this case from Wilburn v. StateOpinion
No. 05-01-01620-CR
Opinion Filed November 19, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-50770-I. AFFIRM and REFORMED
Before Chief Justice THOMAS AND Justices JAMES and O'NEILL.
OPINION
Appellant appeals his conviction for unauthorized use of a motor vehicle. Appellant entered an open plea of guilty to the trial court. After accepting appellant's plea, the trial court assessed punishment at twenty years' confinement. Appellant presents four issues contending (1) the trial court erred in assessing an enhanced sentence, (2) the record does not contain a written jury waiver, and (3) the evidence is legally insufficient to support his guilty plea. For the following reasons, we reform the trial court's judgment, and affirm the judgment as reformed. The grand jury indicted appellant for unauthorized use of a motor vehicle. The indictment contained two enhancement paragraphs. The reporter's record from appellant's plea hearing shows appellant pleaded guilty to the allegations in the indictment and true to the enhancement paragraphs. The trial court found the evidence proved appellant's guilt and that appellant's pleas of true were "factually based." The trial court passed the case for sentencing. By the time of appellant's sentencing hearing, about eight months later, the clerk's record had been lost — including the indictment, appellant's written waivers, and his written judicial confession. However, the reporter's record from the plea hearing was available. At the sentencing hearing, the State presented its copy of the indictment, a copy of the reporter's record from the plea hearing, and a blank copy of the written waivers appellant would have executed. At the conclusion of the plea hearing, the trial court stated that it had previously found appellant's guilty plea and pleas of true were freely and voluntarily made. The trial court found appellant guilty of the offense and assessed punishment at twenty years' confinement. This appeal followed. In his first point of error, appellant contends the trial court erred in assessing an enhanced sentence because the record does not contain an affirmative finding that the enhancement paragraphs were true. The statement of facts from appellant's plea hearing shows appellant pleaded true to the two enhancement paragraphs. A plea of true is alone sufficient to support a finding of true to an enhancement paragraph. Washington v. State, 893 S.W.2d 107, 109 (Tex.App.-Dallas 1995, no pet.); see also Dinn v. State, 570 S.W.2d 910, 915 (Tex.Crim.App. 1978). The trial court found appellant's pleas of true were freely and voluntarily made and were "factually based." At the subsequent sentencing hearing, just before pronouncing appellant's sentence, the trial court reiterated that it had found appellant's pleas of true were freely and voluntarily made. The trial court then sentenced appellant to twenty years' confinement, the maximum permitted for appellant's offense with the two enhancement paragraphs. See Tex. Pen. Code Ann. § 12.42(a)(2), 12.33 (Vernon 2003). The record before us is sufficient to show the trial court affirmatively found the enhancement paragraphs were true. See Almand v. State, 536 S.W.2d 377, 379 (Tex.Crim.App. 1976). Therefore, we resolve the first issue against appellant. We note that in the trial court's judgment, next to the spaces provided for appellant's plea to the enhancement paragraphs and the trial court's findings regarding the paragraphs, is the notation "N/A." The recitation in the judgment is clearly incorrect. We reform the trial court's judgment to show appellant pleaded true to the enhancement paragraphs and to show the trial court's findings of true. See Milczanowski v. State, 645 S.W.2d 445, 446 (Tex.Crim.App. 1983); Almand, 536 S.W.2d at 379; see also Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). In the second issue, appellant contends the trial court erred in assessing an enhanced sentence because the indictment as "reconstructed by the State" contained no enhancement paragraphs. As noted above, the original indictment in this case was lost after appellant's plea hearing, but before his sentencing hearing. At appellant's sentencing hearing, the State offered its copy of the indictment. The trial court took judicial notice that the indictment "with attached enhancement paragraphs" is an exact copy of the "indictment enhancement" paragraphs contained in the district attorney's file. However, the copy of the indictment that the court reporter included in her record does not include the enhancement paragraphs. The clerk's record, on the other hand, does contain a copy of the indictment with the enhancement paragraphs. Appellant nevertheless asserts we cannot consider the substituted indictment because the trial court did not comply with the requirements of article 21.25 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 21.25 (Vernon 1989). To preserve a complaint for appellate review, the complaining party must make a timely request, objection or motion to the trial court. See Tex.R.App.P. 33.1(a)(1); Carrillo v. State, 29 S.W.3d 262, 263 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Fairness requires the complaining party to raise the complaint when it is possible to correct the error. Carrillo, 29 S.W.3d at 263. The record in this case shows that appellant was aware at the sentencing hearing that the trial court was proceeding on the substituted indictment with attached enhancement paragraphs. Indeed, appellant specifically argued that the range of punishment was two to twenty years, which was the proper range with the enhancement paragraphs. Knowing the trial court was proceeding on the substituted indictment, appellant never complained that the trial court did not comply with the formal requisites of article 21.25. Therefore, he waived any error in the statutory violation. See Carrillo, 29 S.W.3d at 264. We resolve the second issue against appellant. In the third issue, appellant contends the trial court erred in finding him guilty because the record does not contain a written waiver of a jury trial. The statement of facts from appellant's plea hearing shows appellant went over several written waivers with his attorney prior to his plea. Appellant testified that he understood his rights and that he was waiving them freely and voluntarily. Like all the other plea papers in this case, the written waivers were lost before appellant's sentencing hearing. However, at the sentencing hearing, the State presented a blank copy of the waivers, including a written jury waiver, that appellant would have executed at the time of his plea. The attorney that represented appellant at the plea hearing testified that the waivers were the same as those appellant had executed on the day of his plea. Appellant nevertheless complains that the clerk's record does not contain the written waiver of his right to a jury trial. However, there was evidence presented to the trial court that the written waiver did exist when appellant entered his plea. Moreover, the trial court's judgment contains a recitation that appellant "in person and in writing in open court waived his right of trial by jury." This recitation is binding absent proof of its falsity. Johnson v. State, 72 S.W.3d 346, 347 (Tex.Crim.App. 2002). The record in this case contains no proof that the recitation was false. To the contrary, the record supports the truth of the recitation. We resolve the third issue against appellant. In his fourth issue, appellant contends the evidence is legally insufficient to support his plea because the record does not contain his written judicial confession. Again, the reporter's record from appellant's plea hearing shows appellant's written judicial confession did exist at the time of his plea hearing. In any event, the plea hearing shows the trial court read the indictment to appellant. Appellant testified that he understood the charges and that he was pleading guilty because he was guilty. Appellant's oral judicial confession is sufficient to support his conviction. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979) (op. on reh'g); Ybarra v. State, 960 S.W.2d 742, 744 (Tex.App.-Dallas 1997, no pet.). We resolve the fourth issue against appellant. We reform the trial court's judgment to reflect appellant's pleas of true to the enhancement paragraphs and the trial court's findings of true to the paragraphs. As reformed, we affirm the trial court's judgment.
We strongly caution trial courts to take greater care when making their oral and written findings.
At the time of appellant's sentencing hearing, appellant was being represented by other counsel.