Kim Renay Provence v. State ( 2010 )

NO. 07-09-0309-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JULY 19, 2010
______________________________
KIM RENAY PROVENCE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 59,414-D; HON. DON EMERSON, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ
Kim Renay Provence (appellant) appeals her conviction for driving while
intoxicated. Punishment for the offense was enhanced to that of a second degree
felony due to her prior conviction of a felony. Through a single issue, she now contends
that the punishment levied exceeds the maximum allowed by law. We disagree.
The State indicted appellant for driving while intoxicated. Included in the
indictment was an allegation that she twice had been convicted of the like crimes
before. This allegation resulted in the categorization of the offense as a third degree
felony. And, because she had also been convicted previously of a felony, i.e. injury to a
child, the State sought to enhance her punishment. Thus, it filed a “Notice of Intent to
Seek Enhanced Penalty” and alleged therein the aforementioned felony conviction.
At trial, appellant entered an open plea of guilty to the crime for which she was
indicted. She also signed written plea admonishments and acknowledged therein that
she was susceptible to being sentenced to imprisonment for not less than two years or
more than twenty and levied a fine of up to $10,000. Thereafter, the trial court orally
admonished her as follows:
[t]hat Written Plea Admonishment Agreement correctly stated that if you
are found guilty of this offense and the State is able to show that you have
previously been convicted of a felony offense, there would be an
enhancement in your possible punishment from the normal third degree
felony of two years -- not less than two years nor more than ten years -- to
and a $10,000 fine, to a range of not less than two years nor more than 20
years and the same $10,000 fine.
When asked whether she understood that, appellant said, “[y]es, sir.” Thereafter, she
stipulated, through counsel, to the admission of eleven trial exhibits. Those exhibits
represented final convictions for crimes she previously committed. Of those eleven, five
were for driving while intoxicated (which included the two averred in the indictment).
One was for the felony offense described in the “Notice of Intent to Seek Enhanced
Penalty.” Appellant also admitted, while on the witness stand, to having been convicted
of injuring a child.
Ultimately, the trial court accepted the plea and found appellant guilty of driving
while intoxicated. In doing so, it stated that it would “further find that the stipulations are
correct and you previously have been convicted of numerous felony offenses all set out
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in the State’s exhibit.” Following this was the judge’s statement that “I’ll assess your
punishment at 16 years confinement . . . .” Its written judgment reflected the same
sixteen-year sentence. So too did the document reflect that the offense for which she
was convicted was “DWI-3rd OR MORE” and that the offense was a “3rd Degree
Felony.” It did not indicate that the punishment was enhanced, however, and therein
lies the heart of the complaint. Because of the written omission and since she “never
pled true to the [prior felony] conviction,” appellant allegedly could not be assessed
punishment greater than that applicable to an unenhanced felony of the third degree,
i.e. not less than two years nor more than ten. See TEX. PENAL CODE ANN. §12.34
(Vernon Supp. 2009) (specifying the range of punishment normally applicable to a
felony of the third degree as no less than two nor more than ten years imprisonment
plus a fine of up to $10,000).
Missing from appellant’s contention, however, is citation to any authority holding
that once the State disclosed its intent to enhance her punishment, she was required to
plead to the accuracy of the conviction mentioned in the “Notice of Intent to Seek
Enhanced Penalty.” This may be so because there is no requirement that the
enhancement paragraphs be read to the accused or that he plead to same during the
penalty phase of a bifurcated trial when punishment is tried to the court. Reed v. State,
500 S.W.2d 497, 499-500 (Tex. Crim. App. 1973); Osei v. State, No. 05-04-0389-CR,
2005 Tex. App. LEXIS 3101, *8 (Tex. App.–Dallas April 22, 2005, pet. dism’d) (not
designated for publication); Nolan v. State, 624 S.W.2d 721, 724 (Tex. App.–Amarillo
1981, no pet.).1
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We further note that appellant knew of the State’s effort to enhance her punishment via the use
of a prior felony conviction as evinced by her response to the trial court’s admonishment regarding the
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Regarding the matter of the judgment describing the offense as a third degree
felony, appellant again fails to cite us to authority holding that when punishment is
enhanced, the classification of a felony (as opposed to the range of punishment)
changes. To know whether such authority exists would have been interesting.
Nonetheless, statute specifies that when one is being tried for a third degree felony and
the State proves the accused “has been once before convicted of a felony, on
conviction he shall be punished for a second-degree felony.” TEX. PENAL CODE ANN.
§12.42(a)(3) (Vernon Supp. 2009). Whether this means that the offense is actually
reclassified as a felony of the second degree or remains one of the third degree but is
simply punished as a second degree felony is debatable. Resolving that debate is
unimportant here, though. We so conclude because the trial court said nothing about
the type of felony for which appellant was found guilty. Instead, it orally pronounced her
guilty of driving while intoxicated, found “that the stipulations are correct,” found her to
have “previously . . . been convicted of numerous felony offenses . . .,” and assessed
punishment at sixteen years imprisonment. This was done after admonishing appellant
of the enhanced punishment range, receiving appellant’s representation that she
understood that punishment could be enhanced, accepting appellant’s plea of guilty to
the charged offense, and hearing appellant admit to having been convicted of the felony
relied upon by the State for enhancement purposes. Thus, the sentence applicable to
the third degree felony charged in the indictment, as enhanced by the finding that
appellant committed at least one prior felony, fell within the range authorized by
§12.42(a)(3). See TEX. PENAL CODE ANN. §12.33(a) (Vernon Supp. 2009) (prescribing
range of punishment. So too did she admit to having previously been convicted of felonious injury to a
child, the very conviction being used to enhance her punishment. Her having admitted to the validity of
the conviction, it can hardly be said that she did not plead to its authenticity or accuracy.
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the range of punishment for a second degree felony as not less than two or more than
twenty years imprisonment). And, the sentence orally pronounced supersedes any
contradictory recital contained in the written judgment. Taylor v. State, 131 S.W.3d 497,
500 (Tex. Crim. App. 2004); Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App.
2002); Coffey v. State, 979 S.W.3d 326, 328 (Tex. Crim. App. 1998).
In sum, we overrule appellant’s issue. Yet, to avoid any confusion that may arise
from the wording of the judgment, we modify it to reflect that the offense for which she
was convicted was a third degree felony with punishment lawfully enhanced per
§12.42(a)(3) of the Texas Penal Code.
Brian Quinn
Chief Justice
Do not publish.
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