Opinion issued November 20, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00005-CR
                           ———————————
                           JESSE LOPEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 351st District Court
                           Harris County, Texas
                       Trial Court Case No. 1296762



                                 OPINION

      A jury convicted appellant, Jesse Lopez, of the third-degree felony offense

of driving while intoxicated—third offense. 1 After finding the allegations in two


1
      See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (Vernon Supp. 2014).
enhancement paragraphs true, the trial court assessed punishment at thirty-five

years’ confinement. In his sole issue on appeal, appellant contends that the trial

court violated Texas Code of Criminal Procedure article 36.01 by failing to receive

a plea of “true” or “not true” to the allegations in the enhancement paragraphs

before assessing appellant’s sentence.

      We affirm.

                                   Background

      On February 23, 2011, appellant drove a van wildly around a corner onto a

residential street in Katy, Texas and smashed into a parked truck and a basketball

goalpost in a driveway before crashing into a neighboring house. Harris County

Sheriff’s Department deputies spoke with appellant, who admitted to drinking two

beers, observed appellant swaying as he stood, and detected the smell of alcohol on

appellant’s breath. Deputies administered field sobriety tests to appellant, who

demonstrated numerous clues of intoxication on each of the tests.

      Because appellant had at least two prior convictions for driving while

intoxicated (“DWI”), a grand jury indicted appellant for felony DWI—third

offense under Penal Code sections 49.04(a) and 49.09(b)(2). See TEX. PENAL

CODE ANN. §§ 49.04(a), 49.09(b)(2) (Vernon Supp. 2014). This offense carries a

penalty range of two to ten years’ confinement if not enhanced. See id. § 12.34(a)

(Vernon 2011). If enhanced, this offense carries a penalty range of twenty-five



                                         2
years’ to ninety-nine years’ confinement or confinement for life. See id. § 12.42(d)

(Vernon Supp. 2014).

      In addition to the two prior misdemeanor DWI convictions alleged for

jurisdictional purposes, the indictment also contained two enhancement

paragraphs, alleging that appellant had two further prior convictions for felony

DWI. The indictment therefore read as follows:

      The duly organized Grand Jury of Harris County, Texas, presents in
      the District Court of Harris County, Texas, that in Harris County,
      Texas, JESSE LOPEZ, hereafter styled the Defendant, heretofore on
      or about February 23, 2011, did then and there unlawfully, operate a
      motor vehicle in a public place while intoxicated.
      It is further presented that before the commission of the offense
      alleged above, on DECEMBER 30, 1998, the Defendant was
      convicted of the offense of DRIVING WHILE INTOXICATED in
      Cause No. 9827592, in THE COUNTY CRIMINAL COURT AT
      LAW NO. 6, HARRIS County, Texas.
      It is further presented that before the commission of the offense
      alleged above, on FEBRUARY 22, 1999, the Defendant was
      convicted of the offense of DRIVING WHILE INTOXICATED in
      Cause No. 9907659, in THE COUNTY CRIMINAL COURT AT
      LAW NO. 15, HARRIS County, Texas.
      Before the commission of the offense alleged above, (hereafter styled
      the primary offense), on DECEMBER 14, 1999, in Cause Number
      0826246, in the 179TH DISTRICT COURT, of HARRIS County,
      Texas, the Defendant was convicted of the felony of DRIVING
      WHILE INTOXICATED.
      Before the commission of the primary offense, and after the
      conviction in Cause Number 0826246, was final, the Defendant
      committed the felony of DRIVING WHILE INTOXICATED and was
      finally convicted of that offense on AUGUST 2, 2004, in Cause



                                         3
      Number 0996097, in the 232ND DISTRICT COURT, of HARRIS
      County, Texas.

The jury found appellant guilty of felony DWI as charged in the indictment.

      Appellant elected to have the trial court assess punishment. The trial court

did not begin the punishment phase of the trial by reading a copy of the indictment,

including the enhancement paragraphs, to appellant, and it did not receive, at that

time, appellant’s plea of “true” or “not true” to the allegations in the enhancement

paragraphs. Appellant did not object to the trial court’s failure to do so. Instead,

the punishment phase began with the trial court admitting into evidence appellant’s

stipulation of his prior criminal convictions plus the corresponding judgments and

sentences. The stipulation included the following:

      1)    I am the same JESSE LOPEZ convicted of the offense of
            DRIVING WHILE INTOXICATED in the 179th DISTRICT
            COURT of HARRIS COUNTY, TEXAS in Cause No.
            0826246 on DECEMBER 14, 1999. I was sentenced to 4 years
            in the Texas Department of Corrections.

      2)    I am the same JESSE LOPEZ convicted of the offense of
            DRIVING WHILE INTOXICATED in the 232nd DISTRICT
            COURT of HARRIS COUNTY, TEXAS, in Cause No.
            0996097 on AUGUST 2, 2004. I was sentenced to 2 years in
            the Texas Department of Corrections.

These two convictions contained in the stipulation correspond to the allegations in

the enhancement paragraphs of the indictment.

      At the close of the punishment phase, the trial court had the following

exchange with appellant:

                                         4
      The Court:          Having reviewed the Stipulation of Evidence
                          indicating that the enhancement paragraph
                          allegations are true, I must ask you at this time,
                          those allegations contained in the indictment which
                          twice before you’ve been convicted of felonies, are
                          they true or not true?
      [Appellant]:        Yes, sir.
      The Court:          Very well. I accept your plea of true to the two
                          enhancement paragraph allegations contained in
                          the State’s indictment. Having been charged with
                          a felony offense of driving while intoxicated, the
                          Court having found the enhancement paragraph
                          allegations to be true, and jury having found you
                          guilty, as I said before, any reason why sentence of
                          law should not now be pronounced against you?
      [Appellant]:        No, sir.

The trial court then assessed appellant’s punishment at thirty-five years’

confinement. This appeal followed.

                      Reading of Enhancement Allegations

      In his sole issue, appellant contends that the trial court violated Code of

Criminal Procedure article 36.01 by failing to read the allegations in two

enhancement paragraphs and receive a plea of “true” or “not true” to these

allegations before assessing his sentence.

      Code of Criminal Procedure article 36.01(a)(1) provides:

      A jury being impaneled in any criminal action, except as provided by
      Subsection (b) of this article, the cause shall proceed in the following
      order:




                                             5
             1.     The indictment or information shall be read to the
                    jury by the attorney prosecuting. When prior
                    convictions are alleged for purposes of
                    enhancement only and are not jurisdictional, that
                    portion of the indictment . . . reciting such
                    convictions shall not be read until the hearing on
                    punishment is held . . . .

TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1) (Vernon 2007). The reading of the

charging instrument is mandatory and serves the twin purposes of informing the

accused of the charges against him and informing the jury of the charges against

the accused. Warren v. State, 693 S.W.2d 414, 415 (Tex. Crim. App. 1985).

Article 36.01 is applicable to the punishment phase of a bifurcated trial. Id. at

415–16. Thus, in a jury trial, the reading of the charging instrument setting out the

enhancement paragraphs, as well as the defendant’s plea to the enhancement

paragraphs, is mandatory during the punishment phase of the trial. See Ex parte

Sewell, 742 S.W.2d 393, 395 (Tex. Crim. App. 1987); Reed v. State, 500 S.W.2d

497, 499 (Tex. Crim. App. 1973) (“There can be no question but that the

enhancement portion of the indictment should be read to the jury if the punishment

is to be assessed by the jury in light of Article 36.01(1).”).

      The Court of Criminal Appeals has also held, however, that when the

punishment phase of the trial is held before the trial court, the Code of Criminal

Procedure does not mandate the reading of the enhancement paragraphs and the

receipt of the defendant’s plea to the enhancement paragraphs. See Reed, 500



                                           6
S.W.2d at 499; see also Davis v. State, 970 S.W.2d 747, 749 (Tex. App.—Houston

[14th Dist.] 1998, no pet.) (“[Article 36.01] does not support Davis’ argument that

the trial court erred by failing to read the indictment before the punishment hearing

because this article concerns the procedure for trial before a jury.”); Garner v.

State, 858 S.W.2d 656, 659 (Tex. App.—Fort Worth 1993, pet. ref’d) (“[T]here is

no requirement that the enhancement paragraphs be orally read to the defendant

when punishment is assessed by the trial court alone.”); Simms v. State, 848

S.W.2d 754, 755 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (“Appellant had

the trial judge assess punishment; therefore, it was not necessary for the State to

read the enhancement paragraphs, and appellant did not have to plead to them.”).

      When the trial court assesses punishment, a defendant is not required to state

an oral plea to enhancement paragraphs on the record if he has previously

stipulated to the allegations in the enhancement paragraphs. Garner, 858 S.W.2d

at 659; see also Reed, 500 S.W.2d at 499 (“At the hearing on punishment, while

represented by retained counsel, appellant stipulated to the truthfulness of the

enhancement portion of the indictment. It would be difficult to say that he was

misled as to that with which he was charged.”); Davis, 970 S.W.2d at 749

(“Having stipulated to the truthfulness of these [enhancement] paragraphs, he

cannot be heard to complain that he did not know the charges against him.”).




                                         7
      Here, after a jury found appellant guilty of felony DWI, the trial court

assessed appellant’s punishment.      The trial court did not read the indictment

containing the two enhancement paragraphs at the beginning of the punishment

phase.2 Instead, the State introduced, and the trial court admitted, appellant’s

stipulation of his prior convictions and the corresponding judgments and sentences.

Appellant stipulated that he had committed, among other offenses, the two felonies

alleged in the enhancement paragraphs of the indictment. At the end of the

punishment phase, prior to pronouncing appellant’s sentence, the following

exchange occurred:

      The Court:          Having reviewed the Stipulation of Evidence
                          indicating that the enhancement paragraph
                          allegations are true, I must ask you at this time,
                          those allegations contained in the indictment which
                          twice before you’ve been convicted of felonies, are
                          they true or not true?
      [Appellant]:        Yes, sir.
      The Court:          Very well. I accept your plea of true to the two
                          enhancement paragraph allegations contained in
2
      We note that appellant did not object to the trial court’s failure to read the
      enhancement paragraphs and receive his plea to the enhancement paragraphs. See
      Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973) (“It would also appear
      that appellant may not raise the question for the first time on appeal. Had there
      been an objection, the problem could have been easily remedied by reintroducing
      the evidence, if any had been offered after the enhancement allegations of the
      indictment had been read, and the appellant’s plea thereto entered.”); Davis v.
      State, 970 S.W.2d 747, 749 (Tex. App.—Houston [14th Dist.] 1998, no pet.)
      (“The Texas Court of Criminal Appeals has stated that an appellant may not raise
      this question for the first time on appeal.”); Garner v. State, 858 S.W.2d 656, 659
      (Tex. App.—Fort Worth 1993, pet. ref’d) (“We find that appellant failed to
      preserve this point for appeal because he failed to object.”).

                                           8
                          the State’s indictment. Having been charged with
                          a felony offense of driving while intoxicated, the
                          Court having found the enhancement paragraph
                          allegations to be true, and jury having found you
                          guilty, as I said before, any reason why sentence of
                          law should not now be pronounced against you?
      [Appellant]:        No, sir.

The trial court then assessed appellant’s sentence at thirty-five years’ confinement.

      The record thus reflects that, although the trial court did not read the

enhancement paragraphs aloud to appellant before assessing punishment, the court

admitted appellant’s stipulation that he had committed the prior offenses alleged in

the enhancement paragraphs, received verbal confirmation from appellant that he

had been convicted of those offenses, and stated on the record that it found the

allegations in the enhancement paragraphs to be true. Because the trial court

assessed punishment, and therefore was not required to read the allegations in the

enhancement paragraphs to appellant, we hold that the trial court did not err. See

Reed, 500 S.W.2d at 499–500; Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d) (“When the trial court alone assesses a

defendant’s punishment, the court is not required to read . . . the enhancement

paragraphs or the findings to the defendant.”); Davis, 970 S.W.2d at 749; Garner,

858 S.W.2d at 659.

      We overrule appellant’s sole issue.




                                          9
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

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

Publish. TEX. R. APP. P. 47.2(b).




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