David Tulio Rodriguez v. State ( 2010 )

NO. 07-09-0319-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 9, 2010
______________________________
DAVID TULIO RODRIGUEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_____________________________
FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;
NO. 10,257; HONORABLE WILLIAM D. SMITH, JUDGE
___________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
CONCURRING OPINION
I agree with the result reached by the majority, and I applaud the decision to
address Appellant's third issue as presented; however, I write separately to express my
opinion that Appellant's general premise about that issue is misstated.
By his third issue Appellant contends the trial court abused its discretion when it
failed to "follow the strictures of Article 36.01 (a)(1), Texas Code of Criminal Procedure,
by not reading the State's enhancement paragraphs to the jury and subsequently
entering the Appellant's plea to the same." While I agree that the trial court committed
error during the punishment phase of Appellant's trial, it wasn't because the
enhancement paragraphs weren't read and a plea wasn't entered.
On January 29, 2009, a Hutchinson County Grand Jury returned an indictment
charging Appellant with the first degree felony offense of aggravated assault on a public
servant1 (Count One) and the state jail felony offense of burglary of a building2 (Count
Two). While the indictment itself did not contain any enhancement allegations, on
August 17, 2009, the State filed notice of its intent to seek enhancement of the
punishment range for each count.3 Notwithstanding the express intent to request the
court to instruct the jury on the enhanced range of punishment, the State never insisted
that the enhancements be read or that Appellant enter a plea thereto. By failing to do
so, the State waived those enhancements. Because those enhancements were waived,
the trial court did not commit error by failing to read the enhancements or have the
Appellant enter a plea. While the trial court may have erred in instructing the jury as to
the range of punishment, an issue not presented to this Court, it did not err in the
1
See Tex. Penal Code Ann. § 22.01(a)(2), § 22.02(a)(2), § 22.02(b)(2)(B) (Vernon Supp. 2010).
2
See Tex. Penal Code Ann. § 30.02(a)(1), § 30.02(c)(1) (Vernon Supp. 2010).
3
See Brooks v. State, 957 S.W.2d 30 (Tex.Crim.App. 1997) (holding that enhancement allegations do not
need to be contained within the body of the primary charging document).
2
manner presented by Appellant's third issue. Accordingly, I concur with the majority in
finding no reversible error raised.
Patrick A. Pirtle
Justice
Do not publish.
3