          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. PD-0572-14
                                     NO. PD-0573-14



                         PATRICIA DONALDSON, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FIFTH COURT OF APPEALS
                         DALLAS COUNTY

      N EWELL, J., delivered the opinion of the Court, in which K ELLER, P.J.,
M EYERS, J OHNSON, H ERVEY, A LCALA, R ICHARDSON and Y EARY, JJ., joined.
K EASLER, J., concurred.

       If a defendant pleads true to an enhancement paragraph, can a court of appeals imply

a trial court’s finding of true regarding that prior conviction used for enhancement when the

trial judge, in his own words, refused to make such a finding? No. We consequently reverse.

                                           Facts

       The State charged appellant with one count of making a false statement to obtain
                                                                                            Donaldson – 2


property or credit, three counts of tampering with a governmental record, and one count of

falsely holding oneself out as a lawyer. Two of the five counts–the making a false statement

to obtain property or credit count, and one of the tampering with a governmental record

counts–alleged state-jail felonies. These two counts are the offenses at issue in this appeal.

The other three counts–not at issue here–alleged second- or third-degree felonies.

        All counts were enhanced by the same two prior felony convictions. The first

enhancement paragraph reflected appellant’s 1992 state conviction for credit-card abuse

(cause number F-9233828). The second reflected her 1990 federal conviction for mail fraud

(cause number 3:90-CR-00193-T). Appellant entered an open plea. She judicially confessed

to all five counts and pleaded true to both enhancement paragraphs. The trial court found the

evidence sufficient to find appellant guilty, but it continued the hearing to the next day “to

make a determination whether or not a finding of guilt should be made, or whether any

finding of guilt should be deferred for a period of years.” 1

        The State’s first witness the next day was Agent Wesley Carter of the United States

Department of Education. Agent Carter had investigated appellant's student-loan fraud, and

he testified about the enhancement paragraphs.

        Q.      Now, Mr. Carter, regarding the defendant’s priors, has she done
                this–has she done this student loan scheme before in the past?


        1
           At the outset of the hearing on the second day, the trial judge stated he had previously found the
enhancements true, but the record reflects that he merely stated, “based on your pleas of guilt and pleas
of true, I find the evidence sufficient to find you guilty. I’m not going to find you guilty, instead we’re
going to pass this for a determination later that will begin tomorrow morning at ten o’clock.”
                                                                               Donaldson – 3


      A.     A similar scheme of student loans, yes.

      Q.     And when was this?

      A.     She was convicted of mail fraud in 1990. Based on my investigation
             and my education . . . in the postal inspection service.

      Q.      And what did she do?

      A.     It was a fraudulent scheme to obtain plus loans, which are loans that
             can be obtained by a parent for a student to attend school. It was
             determined in that investigation that she fraudulently obtained plus
             loans by using other’s identity.

      Q.     And did she actually obtain this–this money?

      A.     I’m not aware.

      Q.     And do you remember how much time she received federally for doing
             this?

      A.     I believe it was six months.

      Q.     And she was also convicted on the State level; is that correct?

      A.     Yes, sir.

      Q.     All right. What was she convicted of?

      A.     Credit card abuse in 1991, or two.

      Q.     And how much time did she get there?

      A.     I believe that was four years, but I don't recall an exact amount.

      The trial court then called for a break. Back on the record the trial court explained

what occurred during the break and expressed doubt about the use of the federal conviction
                                                                                   Donaldson – 4


as an enhancement.

       A ... conversation was had regarding one of the enhancement paragraphs that
       was used when the–when the witness indicated a six-month sentence, which
       comes from the Feds may or may not qualify as–as a–a felony under state law,
       so the question that–yes, she pled true, but it’s–in fact, it does not qualify as
       a–as a felony, which it may not under the federal guidelines, and it may be
       something where the Court would have to treat it either as a misdemeanor
       conviction, or perhaps as a state-jail conviction, as being the closest correlation
       to State law. We’re going to see what that may do to the punishment range.
       The punishment range may change. Ms. Donaldson, it means that the
       punishment range, it wouldn’t go up, it simply means that it may be that the
       Court admonished you improperly as to the proper punishment range. Again,
       it’s not something that would increase it. It may decrease the punishment
       range. So that would be to your benefit. But we’ll go from there and see, okay?

Agent Carter’s testimony was followed by that of the Dallas police detective who arrested

appellant and seized a trunk load of documents showing various identities that appellant used

to perpetrate her schemes. The trial court also heard from the appellant’s boyfriend’s

college-student son, who unwittingly assisted his father and appellant in obtaining student

loans and lines of credit, and a school teacher who hired and paid appellant as her divorce

attorney and never got her money back. After a lunch break, the trial court again addressed

the federal conviction.

       All right. Back on the record. Over lunch I think everyone looked at–the
       question is whether or not a boot camp program run by the Feds constitutes
       being in custody and whether that is a sentence of confinement with the United
       States Bureau of Prisons. My research shows that it is.

The State and the defense agreed that their research showed the same, and the trial court

stated: “Okay. We've got that. We're just trying to make sure that the punishment range in
                                                                                Donaldson – 5


this case continues to be 25 to life in the event of a–of a conviction.”

       The State also offered the judgments of appellant’s prior convictions in support of the

enhancements. State’s Exhibits 8 and 9, federal pen packets, revealed that appellant had

been sentenced in her mail-fraud case to six months in a federal boot camp program followed

by three years of supervised release on November 8, 1990. Appellant filed a notice of appeal

on November 16, 1990, and the Fifth Circuit Court of Appeals affirmed the judgment of the

district court on September 19, 1991. On January 24, 1992, the district court revoked

appellant’s supervised release, sentencing her to nine months’ imprisonment. State’s Exhibit

10, the Texas pen packet, showed that appellant had been convicted of credit-card abuse in

July 1992 while she was still serving time on her federal conviction. It also established that

appellant had committed the credit-card abuse in December 1991 prior to the revocation of

her probation in her federal case.

       The State wound up its punishment case with testimony from university financial-aid

directors and a mortgage-fraud investigator from the United States Department of Housing.

The defense put on a series of character witnesses, and both sides closed. During arguments,

the trial court asked numerous questions of the attorneys and, again, expressed ambivalence

about finding the second paragraph true–but this time it was because the federal and state

time had run concurrently.

       She went–what happened is this–and I needed to make sure and I’ve got
       this–the info on this. In regards to the enhancement paragraphs, I don’t know
       if this counts as two. And the reason I think that the federal time could count
                                                                                  Donaldson – 6


       as one–one enhancement paragraph and the–the State time could count as the
       other. But the sentences were running together or concurrently. And that’s my
       question–legal question is going to be is, can sentences that run together count
       as separate enhancement paragraphs? Meaning, if you go to prison, to TDC
       twice for two burglary of a habitation cases, do you–you cannot stack those.
       That’s not two separate trips. In this case, it was every ones’ intention that the
       sentences were done together. On the Federal paperwork and on the State
       paperwork, the sentences run together. . . . So we’ll address that issue in a
       moment, but I wanted to at least tell–give everyone a preview of that issue,
       because it’s something that matters. So let’s–let’s find out something on–on
       that. But I wasn’t sure until I looked at it again today.

Ultimately the defense asked for probation; the State asked for 25 years. Then, after a final

off-the-record discussion, the judge announced his verdict on the five counts–including the

two state-jail felonies at issue in this case as follows (emphasis added):

       In Cause Number F10-00448, the Court finds Ms. Donaldson guilty of the
       offense of tampering with government records. The Court finds the first
       enhancement paragraph to be true. Through a lengthy discussion regarding the
       second enhancement paragraph, the Cause Number 390-CR-00193-T, the
       Court declines to make a finding in that–in that cause. Court is sentencing Ms.
       Donaldson to 10 years TDC. No fine.

       Cause Number F10-00433 [making a false statement to obtain property or
       credit, greater than or equal to $1,500, but less than $20,000] the defendant's
       found guilty. First enhancement paragraph is found to be true. The Court’s
       makes no finding in Cause Number 390-CR-00193-T. The defendant is
       sentenced to 10 years TDC. No fine.

       Cause Number F10-00447 [tampering with a government record], defendant
       is found guilty. The first enhancement paragraph is found to be true. There’s
       no finding on Cause Number 390-CR-00193-T. The defendant is sentenced
       to 10 years TDC. No fine.

       In Cause Number F10-00435 [tampering with a government record], the
       defendant's found guilty. The first enhancement paragraph is–is found to be
       true. There's no finding in Cause Number 390-CR-00193-T. This is the social
                                                                                 Donaldson – 7


       security card case. In that case, the defendant is sentenced to five years TDC
       with no fine.

       And in Cause Number F11-00266, the defendant is found guilty and the first
       enhancement paragraph is found to be true. There's no finding in Cause
       Number 390-CR-00193-T. This is the falsely holding oneself out as a lawyer.
       In that case, the defendant is sentenced to five years TDC. No fine.

       On direct appeal, appellant argued that the trial court’s sentences on the two state-jail

felonies were illegal because they were outside the maximum range of punishment for a

state-jail felony. Neither appellant nor the State addressed the propriety of using appellant’s

mail-fraud conviction for enhancement purposes. The court of appeals initially held that

appellant’s sentence was illegal. In its original opinion, the court of appeals rejected the

State’s request for an implied finding of true on the second enhancement paragraph.

According to the court, the lack of a finding did not result from inadvertent omission. The

trial court expressed reservations about the second enhancement paragraph, specifically

declined to make a finding on the record, and noted “N/A” on the judgment “Findings on 2nd

Enhancement/Habitual                Paragraph.”       Donaldson         v.    State,     Nos.

05–13–00598/599/600/601/602–CR, 2014 WL 1483584 (Tex. App.—Dallas Apr. 15, 2014)

(not designated for publication).

       On rehearing, however, the court of appeals agreed with the State’s argument that an

implied finding was appropriate. The court of appeals noted that appellant had never argued

that the mail-fraud conviction ran concurrently with the sentence imposed in appellant’s

credit-card-abuse case. Rather, appellant had entered a plea of guilty, signed a judicial
                                                                                 Donaldson – 8


confession, and pleaded true to both enhancement paragraphs. And, in contrast to its original

opinion, the court of appeals attached no significance to the trial court’s oral statement that

no finding was being made regarding appellant’s mail-fraud conviction because the trial

court had previously accepted appellant’s plea of true to that enhancement provision.

Instead, the court of appeals attached significance to the trial court’s assessment of

punishments consistent with an implied finding of true on the mail-fraud enhancement

paragraph.   Donaldson v. State, Nos.       05–13–00598/599/600/601/602–CR, 2014 WL

2532300, at *4 (Tex. App.—Dallas June 4, 2014) (not designated for publication). From this

holding, we granted review.

                                             Law

        The state-jail felonies in this case were punishable under T EX. P ENAL C ODE §

12.35(a), which provides that “an individual adjudged guilty of a state-jail felony shall be

punished by confinement in a state jail for any term of not more than two years or less than

180 days.” The penalty for a repeat or habitual felony offender on trial for a state-jail felony

is governed, in this case, by T EX. P ENAL C ODE § 12.425 (b), which reads as follows:

       If it is shown on the trial of a state-jail felony punishable under Section
       12.35(a) that the defendant has previously been finally convicted of two
       felonies other than a state-jail felony punishable under Section 12.35(a), and
       the second previous felony conviction is for an offense that occurred
       subsequent to the first previous conviction having become final, on conviction
       the defendant shall be punished for a felony of the second degree.

Section 12.425 does not contain any provision that allows enhancement–of the state-jail-
                                                                              Donaldson – 9


felony convictions at issue in this case–with only one prior felony conviction. T EX. P ENAL

C ODE A NN. § 12.425 (West 2013).

       Under Texas law, a probated sentence is not “final” for purposes of enhancement until

that probation is revoked. Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992).

A probated sentence that has been served successfully is not available for enhancement

purposes without specific statutory authorization. See e.g. Ex parte White, 211 S.W.3d 316,

319 (Tex. Crim. App. 2007) (upholding use of Delaware conviction for enhancement

purposes even though deferred-adjudication probation had not been revoked because Texas

Penal Code section 12.42(g)(1) provides an exception to the general rule that probation must

be revoked before a conviction can be used for enhancement). Section 12.425 does not

contain any statutory exception allowing enhancement through the use of conviction resulting

in an un-revoked probation. T EX. P ENAL C ODE A NN. § 12.425 (West 2013). When there is

no evidence to show that the enhancement offenses were committed and became final in the

proper sequence, the defendant’s sentence may not be enhanced under the State’s habitual-

offender statutes. Jordan v. State, 256 S.W.3d 286, 291 (Tex. Crim. App. 2008).

       The State has the burden of proof to show that any prior conviction used to enhance

a sentence was final under the law and that the defendant was the person previously

convicted of that offense. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).

We have held that when a defendant pleads “not true” to an enhancement paragraph, the fact-

finder must decide whether the State has sustained its burden by entering a finding that the
                                                                               Donaldson – 10


enhancement allegation is either true or not true. Jordan, 256 S.W.3d at 291. A plea of

“true” will satisfy the State’s burden of proof. Ex parte Rich, 194 S.W.3d 508, 513 (Tex.

Crim. App. 2006); Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981).

Additionally, when the defendant enters a plea of “true” as part of a plea-bargain agreement,

an appellate court can imply a finding of true when such a finding is affirmatively reflected

in the record without an express finding of “true” by the trial court. Almand v. State, 536

S.W.2d 377, 379 (Tex. Crim. App. 1976) (“It is true that the court did not make an express

finding as it should have as to the prior conviction, but it is obvious from what has been said

that the court found from the undisputed evidence that there was a prior conviction and with

the agreement of the parties assessed punishment as a second degree felony. The judgment

and sentence are accordingly reformed to reflect enhancement of punishment by virtue of a

prior conviction.”).

       In a “habitual” case, the State also carries the burden of proving that a defendant’s

second previous felony conviction was committed after the defendant’s first previous felony

conviction became final. Jordan, 256 S.W.3d at 291. We have held that the language of

some of the habitual-offender statutes (“shall be punished”) dictates their mandatory

operation. State v. Allen, 865 S.W.2d 472, 474 (Tex. Crim. App. 1993). That is, once a

finding of true as to the enhancement paragraphs has been made, “the punishment is

absolutely fixed by law.” See Harvey, 611 S.W.2d at 111. But even when a defendant

pleads true to an enhancement, he may still challenge the use of the prior conviction on
                                                                               Donaldson – 11


appeal when the record affirmatively reflects that the enhancement itself is improper. Rich,

194 S.W.3d at 513.

                                          Analysis

       The trial court did not make any affirmative findings of “true” regarding the federal

mail-fraud conviction in these cases.      After being admonished on the enhancements,

appellant pleaded true, and the trial court sentenced her within a proper punishment range

for appellant’s second- and third-degree convictions. However, the trial court also sentenced

appellant within the enhanced punishment range in the two state-jail-felony cases. Under

Harvey, appellant’s pleas of true would be sufficient to satisfy the State’s burden of proof

for the enhancement allegations. Moreover, those pleas would support an implied finding

in the absence of any other evidence that the trial court rejected the State’s proof on the

enhancement or that enhancement would be improper. See e.g. Almand, 536 S.W.2d at 379;

Rich, 194 S.W.3d at 513.

       But implying a finding that the trial court found the enhancement allegation true is not

appropriate in this case. The trial court expressly stated it was not making a finding of true,

and it sentenced appellant within a proper range of punishment in her other three convictions.

Moreover, the trial court expressed its concern throughout the plea hearing that it could not

use the federal mail-fraud conviction as a basis for enhancement. Under Texas law, the mail-

fraud conviction would not be considered final for purposes of enhancement because

appellant committed the subsequent offense prior to the revocation of the appellant’s
                                                                                            Donaldson – 12


probation on the mail-fraud case. Langley, 833 S.W.2d 141, 143. But under federal law,

appellant’s mail-fraud conviction was final for purposes of enhancement upon issuance of

the mandate from appellant’s federal appeal. 18 U.S.C.A. §3562 (West 2013); see also

Skillern v. State, 890 S.W.2d 849, 883 (Tex. App.–Austin 1994, pet. ref’d.) (noting that a

suspended or probated sentence is regarded as a final conviction for purposes of

enhancement under federal law). The trial court’s confusion regarding his ability to use the

federal conviction for purposes of enhancement supports the conclusion that the trial court

did not intend to find the prior enhancement true, particularly in light of the express refusal

to find the mail-fraud enhancement true in any of appellant’s cases, even if the refusal was

based on a mistake of law.2

        The trial court was within its discretion to reject a finding of true on the prior mail-

fraud conviction. However, it lacked the authority to assess punishment outside the statutory

range for a state jail felony once it refused to find the prior mail-fraud enhancement

allegation true. Because the trial court imposed punishment for the state-jail felonies outside

the maximum range of punishment, those sentences are illegal. Mizell, 119 S.W.3d at 806.

We reverse the judgment of the court of appeals, and remand this case to the trial court for


        2
          We have held that the lack of a finding does not bar use of that prior-conviction in a retrial as to
punishment if a trial court’s refusal to make a finding regarding a prior-conviction enhancement was
based upon a mistake of law. State v. Wooldridge, 237 S.W.3d 714, 718 (Tex. Crim. App. 2007). But we
have not been asked in this case to determine whether the trial court’s refusal to make an enhancement
finding was due to a decision of law or of fact. Rather, we have been asked to determine only whether
the court of appeals could infer a trial court’s finding of true, not why the trial court did not make such a
finding. Consequently, we need not address in this opinion whether the State should be afforded a
second opportunity on remand to present its proof of appellant’s mail-fraud conviction.
                                                Donaldson – 13


a new punishment hearing on those two counts.




Delivered: December 16, 2015

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