Barnes Jr., Robert Louis v. State ( 2004 )

Dismissed and Memorandum Opinion filed March 2, 2004

Dismissed and Memorandum Opinion filed March 2, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00198-CR

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ROBERT LOUIS BARNES, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 182nd District

Harris County, Texas

Trial Court Cause No. 834,305

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M E M O R A N D U M   O P I N I O N

            This is an appeal from appellant’s conviction for aggravated assault following an adjudication of guilt after violations of the terms and conditions of appellant’s community supervision.  As a threshold matter, we must decide whether this court has jurisdiction to hear appellant’s claim that the evidence is insufficient to prove two enhancement paragraphs.  We have determined that, because the order deferring adjudication of guilt reflects appellant’s plea of true to the enhancement paragraphs at that time, this court does not have appellate jurisdiction and, therefore, we dismiss this appeal for lack of jurisdiction.

I.  Factual and Procedural Background

            Appellant was charged by indictment with the felony offense of aggravated assault for threatening his wife with imminent bodily injury by using and exhibiting a deadly weapon, namely a knife.  See Tex. Pen. Code Ann. §§ 22.01, 22.02 (Vernon 2003 & Supp. 2004). The indictment contained two enhancement paragraphs, one for appellant’s 1972 felony conviction for robbery and the other for appellant’s 1976 felony conviction for burglary.  After closing arguments in a bench trial, according to the record, appellant pleaded no contest in open court without an agreed punishment recommendation from the State, and waived a court reporter.  The trial court deferred adjudication of guilt and placed appellant on community supervision for ten years and imposed a fine of $500.  The order deferring adjudication of guilt reflects that appellant pleaded true to the enhancement paragraphs and that the trial court found them to be true.

            The State filed a motion to adjudicate guilt in March of 2002, citing several violations of the terms and conditions of appellant’s community supervision.  At the hearing on the motion, appellant pleaded “true” to all of the State’s allegations.  The trial court found each of the allegations true.  Addressing the enhancement paragraphs, the trial court stated twice that appellant previously had entered pleas of “true” to each of the offenses.^[1]  Defense counsel requested the trial court find only one of the enhancement paragraphs true to reduce appellant’s sentence.  On the record, the trial court found the enhancement paragraphs true and assessed punishment at twenty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division.^[2]   

II.  Issue Presented

            In his sole issue, appellant contends the trial court erred in its assessment of punishment at twenty-five years’ confinement because the evidence is insufficient to prove the two enhancement allegations.  Specifically, appellant argues the record does not contain evidence that he signed a stipulation or pleaded true to the two enhancement paragraphs nor did the State offer a penitentiary packet to prove the two convictions.

III.  Analysis and Discussion

            Although neither party has raised the issue, we must first determine whether this court has jurisdiction to consider this matter on appeal. 

            A defendant placed on deferred-adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred-adjudication community supervision is first imposed.^[3]  See Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999) (finding no jurisdiction when appellant argued after adjudication of guilt that evidence from original proceeding was insufficient to substantiate his guilt).  In Hardeman v. State, on appeal after the adjudication of guilt, the appellant contended, among other things, that the evidence was insufficient to support the trial court’s findings on two enhancement paragraphs.  See Hardeman v. State, 1 S.W.3d 689, 691 (Tex. Crim. App. 1999).  The appellant had stipulated to the two enhancement paragraphs at the time the trial court deferred adjudication.  See id. at 690.  Citing Manuel v. State, the Texas Court of

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Criminal Appeals held that the court of appeals was correct in determining it lacked jurisdiction over this claim.  See id. at 691. 

            Similarly, in this case, appellant contends the evidence is insufficient to prove the two enhancement paragraphs in the indictment.  Both the order deferring adjudication and the trial court’s statements at the hearing to adjudicate guilt indicate that appellant pleaded true to the enhancement paragraphs at the time the trial court imposed deferred adjudication.  There is no material difference between the facts of this case and those in Hardeman.  See Hardeman, 1 S.W.3d at 691.  Under Hardeman, this court lacks appellate jurisdiction. 

            Accordingly, we dismiss appellant’s appeal for want of jurisdiction.^[4]

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed March 2, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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            ^[1]  The record reflects the following exchange during the hearing on the motion to adjudicate guilt:

The Court:  You have previously entered pleas of true to each of the enhancement paragraphs.  Before I make any rulings on those or findings, any punishment evidence that the State wants to offer?

            Prosecutor:  No, Your Honor.

            The Court:  Any punishment evidence that the Defense wants to offer?

Defense Counsel:  Your Honor, just the fact that we’re asking you to find one of the enhancement paragraphs not true.

. . .

The Court: [O]n your previous pleas of true to the enhancement paragraphs I will find each of those true and I will assess your punishment at the minimum of 25 years [sic] confinement in prison.

            ^[2]  The judgment adjudicating guilt does not reflect appellant’s plea of “true” to the enhancement paragraphs or the trial court’s finding of “true.”

            ^[3]  The Texas Court of Criminal Appeals has recognized a “void judgment” exception to this general rule.  Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001).  However, appellant does not contend that the order deferring adjudication is void. 

            ^[4]  Even if this court considered appellant’s claim, his contention lacks merit.  A defendant’s plea of “true” to an enhancement paragraph will satisfy the State’s burden of proof for enhancement allegations. Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984).  Because a plea of “true” is sufficient, the fact that appellant entered a plea of “true” must be affirmatively reflected by evidence in the record.  See id. Appellant did not overcome the presumption of regularity in the order deferring adjudication of guilt reflecting that appellant pleaded true to the enhancement paragraphs.  See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1985) (op. on reh’g) (concluding that although record did not include document showing formal waiver of trial by jury, appellants did not overcome presumption of truth of recital in judgment that they did waive right to jury). Moreover, appellant placed his initials beside a paragraph in a document entitled “For Plea: Admonishments, Statements, and Waivers For Offenses” that indicated appellant is a habitual offender and, if convicted, would receive a term of life or any term of not more than 99 years or less than 25 years’ confinement.  Appellant also testified at the hearing on the motion to adjudicate guilt that he understood his punishment could be from 25 years’ confinement to a life sentence.  If appellant had not pleaded true to the enhancement paragraphs, it seems unusual that he would indicate both orally and in writing that this sentencing range applied.