Robert McGaugh v. State ( 2007 )

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ROBERT McGAUGH,

Appellant,

THE STATE OF TEXAS,

Appellee.

No. 08-05-00360-CR

Appeal from

384th District Court

of El Paso County, Texas

(TC # 20040D06500)

O P I N I O N

Robert McGaugh appeals his sentence of forty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. He complains that the evidence was insufficient to support the trial court's findings of enhancement. For the following reasons, we affirm.

FACTUAL SUMMARY

Appellant was indicted on one count of aggravated sexual assault of a child and three counts of indecency with a child. Prior to trial, the State filed a notice of enhancement and habitualization. In the notice, the State listed two prior felony robbery convictions.The jury found Appellant guilty of the three counts of indecency with a child. The trial court found the enhancements true and assessed punishment at forty-five years' confinement.

During the punishment phase, the trial court admitted without objection all evidence admitted during the guilt/innocence phase and Exhibits 3, 4, 5, 6, and 7. Exhibits 4, 5, 6, and 7 were certified copies of Appellant's prior convictions, two of which the State relied on for enhancement. Exhibit 3 was a stipulation signed by Appellant that he was the person convicted of the two enhancements alleged. Following the admission of this evidence, the State and the defense rested and closed.

The trial court then ordered a presentence investigation report and postponed assessing punishment to a later date. At sentencing, the State asked to read the notice of enhancement into the record. Appellant objected, arguing that the enhancement allegations had not been read and his plea had not been taken at the beginning of the punishment phase. The State sought permission to reopen the evidence and to read the notice of enhancement into the record. Over Appellant's objection, the trial court allowed the State to read the notice. Appellant then objected to entering a plea. Pointing to the signed stipulation, the trial court overruled the objection. Appellant then entered a plea of not true. The trial court stated that it had reviewed the presentence investigation report and, having considered all the evidence, it found the two prior convictions true for the purposes of habitualization.

IS ARTICLE 36.01 APPLICABLE?

In his sole issue for review, Appellant complains that because the enhancement allegations were not read and his plea was not taken at the beginning of the punishment phase, the evidence is insufficient to support the sentence imposed. He relies upon Article 36.01 in support of this argument:

(a) A jury being impaneled in any criminal action, except as provided by Subsection (b) of this article, the cause shall proceed in the following order:

1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.

Tex.Code Crim.Proc.Ann. art. 36.01 (Vernon 2007). The reading of the indictment is mandatory. The purpose of the rule is to inform the accused of the charges against him and to inform the jury of the terms charged against the accused. Warren v. State, 693 S.W.2d 414, 415-16 (Tex.Crim.App. 1985). Article 36.01 is applicable to the punishment phase in a bifurcated trial. Id. at 415-16. But Article 36.01 only applies when punishment is assessed by a jury. Reed v. State, 500 S.W.2d 497, 499 (Tex.Crim.App. 1973)(the enhancement portion of the indictment should be read to the jury if the punishment is to be assessed by the jury ). When the trial court assesses punishment, the statute is inapplicable. See id. Moreover, once Appellant objected, the trial court permitted the State to read the enhancement allegations and allowed Appellant to enter a plea of "not true." While the reading of the enhancements and acceptance of the plea is the better practice, there is no such requirement when punishment is assessed by the trial court. See id.; Garner v. State, 858 S.W.2d 656, 659 (Tex.App.--Fort Worth 1993, pet. ref'd)(while the better practice is for trial courts to orally read the enhancement paragraphs and find them to be true or false on the record, trial court did not err by failing to do so since the court assessed punishment instead of a jury).

When the State seeks to enhance a defendant's punishment range, the State has the burden to prove that the defendant's prior convictions were final and that the defendant was the person who was previously convicted. See Wilson v. State, 671 S.W.2d 524, 525 (Tex.Crim.App. 1984). If the defendant pleads true to the enhancement paragraphs, then the State's burden of proof is satisfied. Id. Here, however, Appellant pled "not true." Again relying on Article 36.01, Appellant contends the evidence was insufficient to support the trial court's finding of true to the enhancements. We disagree for two reasons. First, the statute is inapplicable when the trial court assesses punishment. See Reed, 500 S.W.2d at 499. Second, Appellant stipulated that he was the person who committed the two alleged enhancement crimes. While the State did not re-offer the stipulation following the reading of the notice and the plea, the trial court relied upon Appellant's stipulation without objection.

[DEFENSE ATTORNEY]: Your Honor, we object to entering a plea and that the Court has not authorized the State to reopen the case. And they have wholly failed to properly bring this matter before the Court.

THE COURT: Well, I authorized them to reopen by letting them offer that in, so, in essence, that's what I did. And you're not going to enter a plea?

[DEFENSE ATTORNEY]: No, Your Honor.

THE COURT: I will take the stipulations that you signed at trial in this case --

[DEFENSE ATTORNEY]: Your Honor, and for the record, we'll enter of just not true.

THE COURT: All right. And I do note that Mr. McGaugh, with his attorney, filed a stipulation with this court. Genesis, where are they? (Interruption).

All right. But I do note that [Defense Attorney], [Prosecutor] and Robert McGaugh signed the stipulation, stipulating that the prior convictions in Cause Number 32658 on the 5th day of April of 1979, in the 168th District Court, for robbery. And also a stipulation for robbery in the 41st District Court in 1986, in Cause Number 46222, the 24th day of January of 1986, in the 41st District Court. And this stipulation was admitted in evidence and signed by the attorneys in this case, I believe on the date that the verdict was returned by the jury on the 19th day of October, 2005. Your objections are noted and overruled. This Court has reviewed the presentence investigation and has taken into consideration all the evidence in this case. I find it true that he has two prior convictions, for purposes of habitualization. . . .

Because Appellant entered into a stipulation of the evidence, the evidence was sufficient to support the trial court's finding of true to the enhancement paragraphs. See Garza v. State, 548 S.W.2d 55, 56-57 (Tex.Crim.App. 1977)(written stipulation which was admitted without objection was sufficient to support trial judge's finding that enhancement allegations were true); Lucas v. State, 452 S.W.2d 468, 470 (Tex.Crim.App. 1970)(evidence was sufficient to authorize the enhancement of punishment where defendant entered into stipulation regarding prior convictions); Gomez v. State, 921 S.W.2d 329, 337 (Tex.App.--Corpus Christi 1996, no pet.)(defendant's stipulation admitted without objection was sufficient evidence to support trial court's finding that enhancement allegations were true); Davis v. State, 970 S.W.2d 747, 749 (Tex.App.--Houston [14th Dist.] 1998, no pet.)(because defendant stipulated to the truthfulness of the enhancement paragraphs during the punishment hearing, he could not complain he did not know the charges against him); See also Bryant v. State, 187 S.W.3d 397, 400 (Tex.Crim.App. 2005)(a stipulation is a kind of judicial admission that is not evidence at all but rather has the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of that fact). We overrule Appellant's sole point and affirm the judgment of the trial court.