                                 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


       1
         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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