Willie Thomas Flowers, III v. State ( 2006 )

Affirmed and Memorandum Opinion filed September 26, 2006

Affirmed and Memorandum Opinion filed September 26, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00018-CR

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WILLIE THOMAS FLOWERS, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339^th District Court

Harris County, Texas

Trial Court Cause No. 959,089

M E M O R A N D U M   O P I N I O N

Appellant, Willie Thomas Flowers, III, was charged by indictment with aggravated robbery, enhanced by two prior felony convictions.  In appellant=s sole point of error, he seeks a new punishment hearing on grounds he did not plead true to either enhancement allegation and the trial court made no findings on the enhancements.  We affirm.

Appellant pled guilty to aggravated robbery before a jury, which returned a guilty verdict.  The court delayed proceedings pending completion of a presentence investigation (APSI@) report.  At the beginning of the PSI hearing, the court, apparently mistaken, stated appellant had previously entered pleas of Atrue@ to both enhancement offenses.  The court said it had accepted those pleas, but had not made any findings.  Neither the State nor the defense corrected these statements.  In fact, while attempting to explain appellant=s corrections to the PSI report, appellant=s attorney stated appellant was Anot claiming his innocence but rather explaining to the Court specifically why he had pled true and guilty in this cause.@  The State presented evidence on the issue of punishment, including two pen packets showing appellant=s previous felony convictions.  In closing, the defense clearly stated there was Ano question@ appellant=s prior convictions were admitted into evidence.  In turn, the State argued appellant has two prior felony convictions that increase his punishment range from 25 years to life (without enhancement, appellant=s possible sentence would fall between 5 and 99 years).  The judge sentenced appellant to 50 years, commenting that:

I have probably in 12 years yet to see somebody on bond for a very serious offense with an ankle monitor admit to the very same offense.  It is hard to overlook that, Mr. Flowers, as I suspect it would have been difficult for a jury to overlook at punishment. 

And just as an aside, I have every belief that a jury may well have given you a life sentence on this matter.

Although the judgment reflects appellant pled Atrue@ and the court entered a finding of Atrue@ as to both prior felony convictions, the reporter=s record contains no plea to the enhancements or any oral, judicial acceptance of such plea.

In his sole point of error, appellant claims the trial court erred by failing to obtain his plea to the enhancements or to enter a finding on the enhancements.  This Court has previously held:  AIn cases where the penalty stage of a bifurcated trial is to be held before the court alone, there is no requirement that the court read the enhancement portions of the indictment and receive the defendant=s plea.@^[1]  Dickson v. State, No. 14-95-01396-CR, 1997 WL 539545, at *1 (Tex. App.CHouston [14th Dist.] Sept. 4, 1997, pet. ref=d) (not designated for publication) (citing Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973)) (explaining reading of enhancements and receiving plea is not mandatory at penalty stage to trial court, but is the better practice); see also Simms v. State, 848 S.W.2d 754, 755 (Tex. App.CHouston [1st Dist.] 1993, writ ref=d) (holding that where trial judge assess punishment, it was not necessary for the State to read the enhancement paragraphs, and the appellant did not have to plead to them). But while the trial court did not commit reversible error in failing to receive appellant=s plea to the enhancement allegations, we must decide whether the trial court=s erroneous assumption that appellant had entered a plea of true constitutes reversible error.

The general rule is that a plea of true to an enhancement paragraph relieves the State of its burden to prove a prior conviction alleged for enhancement and forfeits the defendant=s right to appeal the insufficiency of evidence to prove the prior conviction.  Ex parte Rich, 194 S.W.3d 508, 513  (Tex. Crim. App. 2006).  Here, the State offered penitentiary records to support the court=s finding of true, but we cannot discern from the record whether the trial judge found the enhancement allegations to be true based on the State=s evidence or his mistaken notion that appellant had previously entered a plea of true.  However, a defendant=s attorney is authorized to enter a plea of Atrue@ to enhancement allegations when his client is present in the courtroom.  Tindel v. State, 830 S.W.2d 135, 136B37 (Tex. Crim. App. 1992).  Moreover, a plea of Atrue@ to enhancement allegations constitutes evidence.  Id. at 137.

 Here, appellant=s trial counsel, in appellant=s presence, told the trial court that his client had entered a plea of true to the enhancement allegations.  Appellant neither objected nor corrected his attorney.  Further, the trial court and the parties all believed that appellant had entered a plea of true, and they all treated appellant=s Aplea@ as if it were in evidence.  Where the trial court and the parties, without objection, treat certain proof as if it had been admitted in evidence, it is not error for the court to consider the same in reaching its verdict.^[2]

 Accordingly, we find no error rising to the level of reversible error due to the trial court=s failure to receive appellant=s plea or the court=s erroneous assumption that appellant had previously entered a plea of true.  The trial court=s judgment is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed September 26, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

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

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^[1]  In a recent Texas opinion, the trial court=s failure to ask defendant to formally plead to enhancement allegations during the punishment phase was considered procedural error.  Meredith v. State, 189 S.W.3d 395, 397 (Tex. App._Texarkana 2006, pet. filed).  To the extent Meredith applies to this case, we decline to follow its analysis.

^[2]  See Ex parte Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977) (affirming where court and parties treated governor's warrant in habeas corpus hearing as if admitted into evidence);  Killion v. State, 503 S.W.2d 765, 765B66 (Tex. Crim. App. 1973) (reviewing court permitted to consider defendant's stipulations to charged offenses where considered by trial court in adjudicating guilt for theft and burglary, although written stipulations not formally admitted into evidence);  Richardson v. State, 475 S.W.2d 932, 932B33 (Tex. Crim. App. 1972) (finding that record showed court admitted exhibits to support adjudication of guilt for burglary even though court did not specifically state that exhibits were admitted into evidence);  Lara v. State, 962 S.W.2d 148, 151 (Tex. App.CSan Antonio 1998, no pet.) (treating stipulations as admitted into evidence because the court considered them).