Opinion
No. 05-03-01274-CR.
Opinion Filed April 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F94-03219-SI. Affirm.
Before Justices JAMES, WRIGHT, and BRIDGES.
OPINION
Gary Wayne Warner appeals the trial court's judgment resentencing him to twenty years' confinement for aggravated assault. In two issues, appellant contends the trial court erred by (1) certifying to this Court that appellant waived his right to appeal; and (2) sentencing him outside the applicable range of punishment. We conclude the trial court erred by certifying that appellant waived his right to appeal, but properly sentenced appellant to twenty years' confinement. Thus, we affirm the trial court's judgment resentencing appellant. In his first issue, appellant contends the trial court erred by certifying he had waived his right to appeal. After reviewing the record, we agree. In April 1995, appellant was placed on deferred adjudication probation for five years after he pleaded guilty to aggravated assault pursuant to a plea bargain agreement. In the plea papers, appellant acknowledged his limited right to appeal following a plea bargain agreement. Subsequently, the State filed a motion to adjudicate guilt, and after a hearing the trial court found appellant guilty and assessed punishment at confinement for life. Appellant appealed. We dismissed his appeal after determining we did not have jurisdiction over appellant's complaint. See Warner v. State, No. 05-99-00216-CR, slip op. at 2 (Tex. App.-Dallas 2001, no pet.) (not designated for publication). Appellant was later granted relief by the court of criminal appeals after filing a writ of habeas corpus. See Ex parte Warner, No. 74,531 (Tex.Crim.App. 2003) (not designated for publication). The court of criminal appeals remanded to the trial court for resentencing. Id. Appellant did not waive any rights at that time. Following a hearing, appellant was resentenced to twenty years' confinement. The trial court subsequently certified to this Court that appellant waived his right to appeal from the resentencing. The State, citing Blanco v. State, 18 S.W.3d 218, 219 (Tex.Crim. App. 2000), contends appellant waived his right to appeal his conviction in exchange for the prosecutor's agreed recommendation on punishment and must be held to his bargain. In Blanco, after the jury found the appellant guilty, he entered into an agreement not to appeal his conviction in exchange for the prosecutor's recommendation for a sixteen-year sentence. Id. at 219. The court of criminal appeals determined that because the appellant knew what his sentence would be if the trial court accepted his plea and knew what errors may have occurred during trial, appellant could be held to his bargain. Id. at 220. In Monreal v. State, 99 S.W.3d 615 (Tex.Crim. App. 2003), the court of criminal appeals determined that a waiver of the right to appeal, whether done pretrial or post-sentencing, is valid if the defendant is fully aware of the consequences at the time he enters the waiver. Id. at 622. The critical question in determining whether the waiver is valid is whether the defendant understood the consequences of the waiver. Id. at 621. Initially, we question whether appellant's acknowledgment of the rule 25.2 limitations on his right to appeal following a plea bargain agreement constitutes a waiver of his right to appeal. However, even assuming it did so, appellant acknowledged his limited right to appeal following a plea bargain agreement at the time he pleaded, well before he was later adjudicated, sentenced to life, and then resentenced to twenty years. At the time appellant entered into a plea bargain agreement for deferred adjudication probation, he could not have known what sentence might be assessed if he were later adjudicated guilty. Thus, Monreal and Blanco are not controlling in this case. A waiver of the right to appeal entered before the defendant is aware of the consequences of his plea is invalid. See Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim. App. 1977) (defendant not bound by agreement to waive appeal made after conviction, but before pronouncement of sentence); Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Crim.App. 1976) (waiver made prior to trial). Consequently, the trial court erred by certifying to this Court that appellant had waived his right to appeal. We sustain appellant's first issue. The State, relying on our previous opinion in this case, also argues rule 25.2(b) precludes our consideration of appellant's complaint because it is not jurisdictional. The State's argument lacks merit. At the time we decided the previous opinion in this case, the court of criminal appeals had not yet issued Vidaurri v. State, 49 S.W.3d 880 (Tex.Crim.App. 2001). In Vidaurri, the court of criminal appeals held that when, as here, an appellant's complaint concerns matters unrelated to his conviction, the extra-notice requirements of rule 25.2 do not apply. Id. at 885. Here, appellant complains the trial court resentenced him to a term of confinement outside the applicable range of punishment, a matter unrelated to his conviction. Thus, we have jurisdiction to consider appellant's complaint. See id. Having concluded we have jurisdiction, we turn to the merits of appellant's complaint. Appellant's specific argument is that because the trial court did not orally pronounce a finding of true on the enhancement paragraph, the trial court could not properly enhance his punishment from that of a third-degree felony to a second-degree felony. The record shows appellant pleaded true to the allegations in the enhancement paragraph. A plea of true constitutes sufficient proof to support the enhancement allegations and makes punishment at the enhanced level mandatory. See Wilson v. State, 671 S.W.2d 524, 526 (Tex.Crim. App. 1984). The trial court's judgment finds the enhancement allegation true, and the court assessed punishment accordingly. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon Supp. 2004). While it may be a better practice for trial courts to orally read the enhancement paragraphs and find them to be true or false on the record, failing to do so is not error. See Garner v. State, 858 S.W.2d 656, 660 (Tex. App.-Fort Worth 1993, pet. ref'd). We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.
At the time appellant committed the offense, aggravated assault was a third-degree felony. See Act of May 26, 1989, 71st Leg., R.S., ch. 939, § 1, 1989 Tex. Gen. Laws 4003, 4003 (amended 1991, 1993, 2003) (current version at Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2004)).