











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00175-CR
______________________________


LESSEL MEREDITH, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee


                                              

On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 32786-A


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter
Concurring Opinion by Justice Ross

O P I N I O N

            On May 31, 2005, Lessel Meredith pled guilty to the offense of delivery of cocaine in the
amount of one gram or more but less than four grams, a second-degree felony, see Tex. Health &
Safety Code Ann. § 481.112 (a), (c) (Vernon 2003), and submitted the issue of punishment to the
trial court.
  The punishment range for a second-degree felony includes imprisonment for any term
of not more than twenty years or less than two years, and a fine not to exceed $10,000.00.  Tex. Pen.
Code Ann. § 12.33 (Vernon 2003).  The indictment contained no enhancement paragraphs. 
However, before trial, the State filed a notice of intent to seek an enhanced punishment,
 alleging
Meredith had been previously convicted of a felony offense.  See Tex. Pen. Code Ann. § 12.42(b)
(Vernon Supp. 2005).  The trial court assessed Meredith's punishment at thirty-five years'
imprisonment.  Meredith now appeals raising two points of error.  We affirm.
            In his first point of error, Meredith contends the trial court erred by finding the punishment
enhancement allegation to be "true" without first asking him to enter a plea to the allegation.  The
record shows the trial court never asked Meredith or his trial counsel to enter a plea regarding the
State's punishment enhancement allegation.
  The trial court's written admonishments did not
specifically note that Meredith's punishment range might be increased if the punishment allegation
was found to be true, nor did Meredith's written waiver of rights include a written plea regarding the
State's punishment enhancement allegation.  During the plea proceeding, however, the State
informed the trial court that the State would be dismissing a third felony case in exchange for
Meredith's guilty pleas "to the two second degrees that are once enhanced . . . ."  Meredith did not
object to this statement.  And, when the trial court pronounced sentence, Meredith did not raise any
objection that the court's thirty-five-year sentence was illegal or outside the proper range of
punishment. 
            Last month, the Texas Court of Criminal Appeals received a somewhat similar case in
Marshall v. State, No. PD-2016-04, 2006 Tex. Crim. App. LEXIS 360 (Tex. Crim. App. Feb. 15,
2006).  There, the indictment contained no punishment enhancement allegations, but the State had
filed a pretrial notice of intent to seek an enhanced punishment pursuant to Section 12.42 of the
Texas Penal Code.  See Tex. Pen. Code Ann. § 12.42 (Vernon Supp. 2005); Marshall, 2006 Tex.
Crim. App. LEXIS 360, at *1–2.  During the punishment trial, the trial court did not ask Marshall
to plead to the enhancement charges; the trial court did, however, enter a"not true" plea on Marshall's
behalf.  Marshall, 2006 Tex. Crim. App. LEXIS 360, at *2–3.  On appeal, Marshall argued the trial
court erred by failing to read the enhancement allegations and obtain his plea thereto.  The Marshall
court noted that the defendant could—and should—have objected to the procedural error once it
became clear the trial court would allow the State to seek punishment under the enhanced range.  Id.
at *9–10.  Because Marshall failed to object, the trial court's error (in failing to ask Marshall to enter
a formal plea) did not result in automatic reversal; instead, further harm analysis was required.  Id.
at *10.
            If prior convictions are alleged by the State for punishment enhancement purposes, the proper
procedure is for the trial court to ask the accused to enter a formal plea to those allegations during
the punishment trial.  Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon Supp. 2005).  In the
case now on appeal, the trial court erred by not asking Meredith to enter a plea regarding the State's
punishment enhancement allegations.  Meredith has not alleged this error is of constitutional
dimension, and we believe it is properly characterized as a procedural violation of a statutory
provision.  Therefore, because the error is nonconstitutional, we must ignore it unless the error
affected Meredith's substantial rights.  See Tex. R. App. P. 44.2(b).
            At Meredith's initial plea, the State informed the trial court that the State would (1) agree to
waive its right to a jury trial, (2) allow Meredith to plead guilty to the second-degree charges that are
once enhanced and submit the issue of punishment to the trial court, and (3) dismiss a third charge, 
all in exchange for Meredith's guilty plea to the second-degree charges that were enhanced to
first-degree punishment.  Meredith did not raise any objection to this statement by the State.  During
that process, the trial court asked the parties what the punishment range was in these cases.  The
State answered, "First degree felonies."  Again, Meredith did not object.  The trial court then directly
asked Meredith if he understood that the applicable punishment range was between five and
ninety-nine years, or life.  Meredith responded affirmatively.  Later, during subsequent
admonishments, the trial court again admonished Meredith that the punishment range was enhanced
and asked Meredith whether he understood the applicable punishment range was that of a first-degree felony and explained that a first-degree felony involved a punishment range from five to
ninety-nine years, or life.  Again, Meredith responded affirmatively.  At the conclusion of the guilty
plea hearing, a stipulation of evidence was offered consisting of the certified copies of the
indictment, judgment granting community supervision, and judgment revoking community
supervision regarding the enhancement allegation. 
            During its punishment argument, the State asked the trial court to sentence Meredith to "at
least 40 years" based on Meredith's past criminal behavior, the enhanced punishment range available
under the current charge.  Meredith acknowledged he had been previously convicted on five felony
offenses and did not object that the State's argument reflected an illegal or unauthorized sentence. 
When the court announced a thirty-five-year sentence, Meredith did not object or question the
propriety of being sentenced in the punishment range provided for first-degree felonies, nor did he
otherwise present any claim that the trial court's failure to obtain his plea otherwise deprived him of
any proper notice that he faced the enhanced punishment. 
            On the record before us, we cannot say the trial court's procedural error under
Article 36.01(a)(1) affected Meredith's substantial rights.  The record clearly shows he knew he was
facing a punishment range enhanced to include a range between five years and ninety-nine years, or
life.  We, therefore, overrule Meredith's first point of error.
            In his second point of error, Meredith contends the trial court erred by considering how
parole law might affect the time Meredith ultimately spent in prison.  Before deciding what sentence
to impose, the trial court asked the State, "What percentage of that time [of the prosecutor's
forty-year recommended sentence] would [Meredith] serve before he's eligible for parole,
Mr. Larison, as it goes now?"  Meredith relies on Tex. Code Crim. Proc. Ann. art. 37.07, Section
4 (Vernon Supp. 2005), for the proposition that the trial court erred in considering how parole might
apply to Meredith's actual term of incarceration.  Article 37.07, Section 4, of the Texas Code of
Criminal Procedure provides:
            (b)  In the penalty phase of the trial of a felony case in which the punishment
is to be assessed by the jury rather than the court, if the offense is punishable as a
felony of the first degree, if a prior conviction has been alleged for enhancement of
punishment as provided by Section 12.42(b), (c), or (d), Penal Code, or if the offense
is a felony not designated as a capital felony or a felony of the first, second, or third
degree and the maximum term of imprisonment that may be imposed for the offense
is longer than 60 years, unless the offense of which the jury has found the defendant
guilty is listed in Section 3g(a)(1), Article 42.12, of this code or the judgment
contains an affirmative finding under Section 3g(a)(2), Article 42.12, of this code,
the court shall charge the jury in writing as follows:
 
            Under the law applicable in this case, the defendant, if sentenced to a term of
imprisonment, may earn time off the period of incarceration imposed through the
award of good conduct time.  Prison authorities may award good conduct time to a
prisoner who exhibits good behavior, diligence in carrying out prison work
assignments, and attempts at rehabilitation.  If a prisoner engages in misconduct,
prison authorities may also take away all or part of any good conduct time earned by
the prisoner.
 
            It is also possible that the length of time for which the defendant will be
imprisoned might be reduced by the award of parole.
 
            Under the law applicable in this case, if the defendant is sentenced to a term
of imprisonment, he will not become eligible for parole until the actual time served
plus any good conduct time earned equals one-fourth of the sentence imposed or 15
years, whichever is less.  Eligibility for parole does not guarantee that parole will be
granted.
 
            It cannot accurately be predicted how the parole law and good conduct time
might be applied to this defendant if he is sentenced to a term of imprisonment,
because the application of these laws will depend on decisions made by prison and
parole authorities.
 
            You may consider the existence of the parole law and good conduct time. 
However, you are not to consider the extent to which good conduct time may be
awarded to or forfeited by this particular defendant.  You are not to consider the
manner in which the parole law may be applied to this particular defendant.
 
Tex. Code Crim. Proc. Ann. art. 37.07, § 4(b) (emphasis added).  
            The plain language of Article 37.07, Section 4, limits its application to cases submitted to
a jury for punishment.  Meredith has not directed our attention to any law in which our Legislature
has expressly precluded a trial court from considering parole when punishment is submitted to the
trial court's discretion.  And in making his argument on this issue, Meredith has cited only two cases
from other courts—cases Meredith contends support his argument that Article 37.07, Section 4,
should apply in punishment trials to the bench.  First cited is Sneed v. State, 670 S.W.2d 262 (Tex.
Crim. App. 1984).  Sneed involved review of a jury's assessment of punishment.  Sneed is, therefore,
inapplicable to the case at bar.  Next cited is Littlepage v. State, No. 11-03-00217-CR, 2005 Tex.
App. LEXIS 6088, at *2 (Tex. App.—Eastland Aug. 4, 2005, pet. ref'd) (not designated for
publication), for the proposition that a trial court shall not consider parole in assessing punishment. 
In Littlepage, the Eleventh Court of Appeals held the evidentiary record did not support the
appellant's claim that the trial court considered the application of parole in deciding to assess a
higher sentence.  Id. at *3.  That court, however, neither stated nor suggested Article 37.07,
Section 4, prohibits trial courts from considering parole in assessing a sentence.  Thus, Littlepage
provides no guidance.
            Until the Texas Legislature forbids trial courts from considering parole in trials to the court,
vis-a-vis Section 4 of Article 37.07, or until the Texas Court of Criminal Appeals concludes
Article 37.07, Section 4, imposes such a restriction on trial courts, we are not inclined to rewrite the
plain language of a statute that clearly says it applies only to jury-assessed punishments. 
Accordingly, we overrule Meredith's second point of error.
            Finally, we note that the trial court's judgment reflects Meredith pled "true" to the State's
punishment enhancement allegations.  As discussed above, the record before us shows Meredith did
not enter any plea to the punishment enhancement provision.  Accordingly, we reform the trial
court's judgment to reflect that Meredith did not plead "true" to that enhancement.  
            As reformed, we affirm the trial court's judgment.



                                                                        Jack Carter
                                                                        Justice


CONCURRING OPINION

            I agree with the majority's disposition of this case.  I write separately because I feel the
majority opinion encourages trial courts to do what Article 37.07, Section 4, prohibits juries from
doing:  speculating about how the parole law will be applied to a particular defendant.
            Immediately after the trial court inquired of State's counsel about what percentage of the
recommended forty years' imprisonment Meredith would have to serve before becoming eligible for
parole, there was a confusing colloquy between the trial court and State's counsel about the answer,
based on how long another defendant in another case had served before making parole.  This kind
of rank speculation was inappropriate.
            I agree that trial courts have broad discretion in assessing punishment and, like jurors, "may
consider the existence of the parole law and good conduct time."  However, I believe the other
admonitions in Article 37.07, Section 4, of the Code of Criminal Procedure that:
It cannot accurately be predicted how the parole law and good conduct time
might be applied to this defendant if he is sentenced to a term of imprisonment,
because the application of these laws will depend on decisions made by prison and
parole authorities.

and
 
[Y]ou are not to consider the extent to which good conduct time may be awarded to
or forfeited by this particular defendant.  You are not to consider the manner in which
the parole law may be applied to this particular defendant.

are equally applicable to trial courts as they are to jurors.  See Tex. Code Crim. Proc. Ann. art.
37.07, § 4 (Vernon Supp. 2005).  A legislative act or decision by the Texas Court of Criminal
Appeals is not needed to tell us this is true.  Even though these admonitions are set in the context of
a jury verdict, I think the Legislature's intent is apparent in these admonitions that speculation
concerning the application of the parole law to a particular defendant is prohibited, whether it be by
the judge or the jury.
            Although the trial court in this case invited such speculation, the record shows that the trial
court assessed Meredith's punishment based more on his criminal history than on any consideration
of the parole law.  For this reason, I concur in the result. 



                                                                        Donald R. Ross
                                                                        Justice

Date Submitted:          January 31, 2006
Date Decided:             April 4, 2006

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