Opinion issued August 4, 2016




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-15-00363-CR
                           ———————————
                         RUBEN MUNOZ, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 147th District Court1
                           Travis County, Texas
                  Trial Court Case No. D-1-DC-14-201210




1
     This appeal, originally filed in the Third Court of Appeals, Austin, Texas, was
     transferred by the Supreme Court of Texas, pursuant to its docket equalization
     authority, to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
     ANN. § 73.001 (West 2013) (authorizing transfer of cases).
            MEMORANDUM OPINION ON REHEARING2

      Appellant, Ruben Munoz, was charged by indictment with felony murder

(Count 1) and manslaughter (Count 2). At trial, appellant pleaded guilty to Count 2

and the jury acquitted him of Count 1. At the punishment hearing, appellant pleaded

true to an enhancement allegation, and the jury assessed his punishment at

twenty-seven years’ confinement. In three points of error, appellant contends that

(1) the jury had no jurisdiction to sentence him on Count 2 because it did not make

a written finding of guilt or, alternatively, the trial court’s acceptance of his plea of

guilty to Count 2 deprived him of his right to a jury trial; (2) the lack of a written

finding of true on the enhancement allegation resulted in a punishment in excess of

the permissible range; and (3) the trial court erred by entering a deadly weapon

finding in its judgment in the absence of an affirmative deadly weapon finding or

verdict of guilty by the jury. We affirm.

                                     Background

      In the early morning hours of March 2, 2014, Sergeant C. Rowland of the

Travis County Sheriff’s Office was on patrol when appellant drove past him at a

high rate of speed. During the course of pursuit, Officer Rowland crested a hill and

discovered that the vehicle had crashed. Appellant sustained minor injuries. The


2
      We originally issued an opinion in this case on July 7, 2016. Appellant filed a
      motion for rehearing. We deny the motion for rehearing, withdraw our July 7, 2016
      opinion, and issue this opinion and the related judgment in their stead.
                                            2
passenger, appellant’s girlfriend, Micole Medina, died from her injuries at the scene.

Appellant was subsequently charged with felony murder and manslaughter.

      At trial, and in the presence of the jury, appellant pleaded not guilty to Count

1 (felony murder) and guilty to Count 2 (manslaughter). Later at trial, and outside

the presence of the jury, appellant waived his right to a jury trial on Count 2 and

pleaded guilty to Count 2, and the trial court found him guilty of Count 2. The jury

found appellant not guilty on Count 1. Thereafter, the trial court held a sentencing

hearing on Count 2. Appellant pleaded true to the enhancement allegation,3 and the

jury assessed his punishment at twenty-seven years’ confinement. This appeal

followed.

                                      Discussion

      In his first point of error, appellant contends that the jury had no jurisdiction

to sentence him on Count 2 because it did not make a written finding of guilt on that

count. Alternatively, he argues that the trial court’s acceptance of his plea of guilty

to Count 2 deprived him of his right to a jury trial.

      It is well settled that when a defendant has entered a guilty plea to a felony

before the jury, there remains no issue of guilt for the factfinder to determine. See



3
      Appellant was previously convicted of a drug-related felony offense in Cause No.
      2:10CR03414-002JCH, in the United States District Court for the District of New
      Mexico.

                                           3
Fuller v. State, 253 S.W.3d 220, 227 (Tex. Crim. App. 2008); see also In re State ex

rel. Tharp, 393 S.W.3d 751, 757 (Tex. Crim. App. 2012) (plea of guilty to jury

eliminates guilt as issue to be determined). A plea of guilty substitutes for a jury

verdict of guilt and is itself a conviction. Fuller, 253 S.W.3d at 227. Like a jury’s

verdict, a plea of guilty is conclusive and nothing more is required but to give

judgment and sentence. Id. “When a defendant pleads guilty to a jury, the jury need

not return any verdict of guilty. The case simply proceeds with a unitary punishment

hearing.” Id.; see State v. Aguilera, 165 S.W.3d 695, 698 n.6 (Tex. Crim. App. 2005)

(finding defendant’s plea of guilty to jury made trial unitary proceeding). Because

appellant pleaded guilty to Count 2 before the jury, a finding of guilt was not

required.

      Alternatively, appellant argues that the trial court’s acceptance of his

subsequent plea of guilty outside the presence of the jury deprived him of his right

to a jury trial on Count 2. His argument is without merit.       Here, appellant had

already pleaded guilty to Count 2 before the jury. Moreover, the record reflects that

appellant signed a form explicitly waiving his right to a jury trial as to Count 2. The

trial court also addressed appellant’s jury trial waiver:

      The Court: And do you understand that by entering this plea you give
      up certain rights including the right to remain silent, the right to
      confront, witnesses called against you, as well as a right to a jury trial
      in this case? Even though the jury is hearing the case as to this count,
      you’ve elected to go to them for punishment, but they don’t have to

                                           4
      consider you of guilt or innocence in this case as to Count No. 2 because
      you’re entering this plea. Do you understand that?

      Defendant: Yes, Your Honor, I understand.

      The record shows that the State consented to the waiver of a jury trial as to

appellant’s guilt on Count 2. See TEX. CODE CRIM. PROC. ANN. art. 27.19 (West

Supp. 2015) (with exception not applicable here, defendant has right upon entering

plea to waive right to jury trial provided waiver is made in person by defendant in

writing in open court with consent and approval of court and attorney representing

State). In light of the above, appellant was not deprived of his right to a jury trial.

      We overrule appellant’s first point of error.

      In his second point of error, appellant contends that the jury’s failure to make

a written finding of true to the enhancement allegation resulted in a punishment in

excess of the permissible range.

      Manslaughter is a second-degree felony punishable by two to twenty years

confinement. TEX. PENAL CODE ANN. § 19.04 (West 2011). The law requires that a

defendant who has been convicted of a second-degree felony “shall be punished for

a first-degree felony” if it is shown that he has been previously convicted of a felony.

Id. § 12.42(b) (West Supp. 2015).

      Prior to trial, the State filed its notice of intent to seek enhancement with a

prior felony conviction. During the punishment phase, the enhancement allegation

was read and appellant pleaded true to the allegation in the presence of the jury,
                                           5
enhancing the punishment range from a second-degree felony to a first-degree

felony. The court’s charge on punishment stated

      [F]or enhancement purposes, the defendant has previously been finally
      convicted on one federal offense. To the enhancement allegation, the
      defendant has entered a plea of true, and you are instructed that you will
      find the enhanced allegation is true. The punishment which you may
      assess is confinement in the Institutional Division of the Texas
      Department of Criminal Justice for life, or for any tern of not more than
      99 years or less than 5 years. In addition, a fine not to exceed $10,000
      may be imposed.

The jury assessed appellant’s punishment at twenty-seven years’ confinement.

      In Harvey v. State, the Texas Court of Criminal Appeals held that the validity

of an enhancement allegation need not be submitted to the jury when there is no

dispute concerning its validity. 611 S.W.2d 108, 112 (Tex. Crim. App. 1981) (noting

that once defendant pleads true to enhancement allegation, State is relieved of its

burden to prove allegations because plea of true constitutes evidence and sufficient

proof to support enhancement allegation). Here, appellant pleaded “true” to the

enhancement allegation before the jury, the State admitted the judgment from

appellant’s prior conviction into evidence without objection, and no party presented

evidence questioning the validity of the enhancement allegation. As in Harvey, the

validity of the enhancement allegation was not in issue. See id. Therefore, there

was no need for the trial court to submit the undisputed issue to the jury. See id. We

overrule appellant’s second point of error.



                                          6
      In his third point of error, appellant contends that the trial court erred by

entering a deadly weapon finding in the judgment on Count 2 in the absence of an

affirmative deadly weapon finding or verdict of guilty by the jury.

      The record reflects that Count 2, as alleged in the indictment, included a

deadly weapon finding, and that appellant pleaded guilty to Count 2 before the jury.4

By pleading guilty to the offense as alleged in the indictment, appellant confessed

that he was the same person named in the indictment and that he committed the

offense as alleged therein. See Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim.

App. 1987) (noting that, in felony cases, plea of guilty before jury admits existence

of all elements necessary to establish guilt); Helton v. State, 886 S.W.2d 465, 466

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). And by properly admonishing

appellant and accepting his guilty plea to the indictment, the trial court necessarily

determined that appellant used a deadly weapon in the commission of the offense.

See Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005). The trial court

was therefore authorized to enter an affirmative deadly weapon finding in the

judgment of conviction for Count 2. See id; Aguilar v. State, Nos. 05–12–00219–

CR, 05–12–00220–CR, 2012 WL 4373692, at *1 (Tex. App.—Dallas Sept. 26,

2012, pet. ref’d) (mem. op., not designated for publication) (“Appellant’s judicial



4
      The indictment states, “RUBEN MUNOZ, during the commission of said offense,
      did use and exhibit a deadly weapon, to wit: a motor vehicle.”
                                          7
confession sufficiently supports the deadly weapon finding contained in the

judgment.”). We overrule appellant’s third point of error.

                                   Conclusion

      We affirm the trial court’s judgment.




                                               Russell Lloyd
                                               Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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