Opinion
No. 05-05-00445-CR
Opinion Filed January 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-50021-UN. Affirmed as Modified.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
OPINION
Michael Darrell Hobbs entered non-negotiated pleas of guilty to robbery and true to a prior felony conviction. See Tex. Pen. Code Ann. §§ 12.42(b) 29.02 (Vernon Supp. 2005 Vernon 2003). The trial court accepted the pleas, found the evidence substantiated the pleas, and orally pronounced Hobbs guilty of robbery without a finding on the enhancement. The court then assessed punishment at twenty years' confinement and a $5000 fine. In his sole issue on appeal, Hobbs complains the trial court erred by accepting his plea of true to the prior conviction because the indictment did not contain an enhancement paragraph and the record did not contain any other pleading giving him the requisite notice that the State sought to enhance punishment with a prior conviction. He argues this error contributed to the sentence imposed by the trial court. We conclude Hobbs failed to preserve error for our review on this issue. Additionally, we reform the judgment to reflect Hobbs's plea of true to the enhancement paragraph. As modified, we affirm the trial court's judgment. To preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion and that the trial court ruled on the request, objection, or motion. Tex.R.App.P. 33.1; see Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App. 2003). Even constitutional error is waived if the defendant fails to timely object. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). Here, the indictment did not contain an enhancement paragraph and the record did not contain the State's notice of intent to use a prior conviction to enhance punishment. However, during the proceedings below, Hobbs's attorney advised the trial court on more than one occasion that he had received the State's notice or that the State had "filed a notice of intent to offer" the prior conviction for enhancement purposes. There was no dispute below that the State provided notice. Hobbs did not object that the notice was untimely, that it failed to provide him adequate notice of the State's intent to seek enhanced punishment, or that it was absent from the record. Nor did Hobbs raise this issue in his motion for new trial. He raises the issue for the first time on appeal. As a result, we conclude Hobbs failed to preserve the issue for our review. See Fairrow v. State, 112 S.W.3d 288, 293 (Tex.App.-Dallas 2003, no pet.). However, even if Hobbs could demonstrate error, we conclude he has not shown the trial court improperly enhanced punishment. The trial court found the evidence substantiated Hobbs's plea of true to the prior conviction, but the court did not orally pronounce a finding of true to the prior conviction. Although the trial court was not required to orally pronounce the finding because it and not the jury assessed punishment, see Reed v. State, 500 S.W.2d 497, 499 (Tex.Crim.App. 1973) and Garner v. State, 858 S.W.2d 656, 659 (Tex.App.-Fort Worth 1993, pet. ref'd), in this case, the trial court also entered only a finding of guilty to the robbery charge on its docket sheet and did not include a finding of true to the enhancement paragraph in its final judgment. Moreover, the sentence imposed, twenty years, is within the punishment range for the second-degree felony offense of robbery without an enhancement paragraph. See Tex. Pen. Code Ann. § 12.33 (Vernon 2003). We overrule Hobbs's sole issue. Finally, we note the final judgment does not reflect that Hobbs pleaded "true" to the enhancement paragraph. We have the power to reform a judgment when we have the necessary information to do so. See Tex.R.App.P. 43.2(b); see also Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the judgment as follows:
PLEA TO ENHANCEMENT
PARAGRAPH(S): TrueAs modified, we affirm the judgment of the trial court.