Opinion issued July 2, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                   NOS. 01-18-00264-CR & 01-18-00265-CR
                           ———————————
                  DAVID WILLIAM LEE BOYD, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                  On Appeal from the 10th Judicial District
                          Galveston County, Texas
                Trial Court Case Nos. 17CR0424 & 17CR0425


                       MEMORANDUM OPINION

      Appellant, David William Boyd, pleaded guilty to the felony offenses of

evading arrest with a motor vehicle and manufacture or delivery of a controlled

substance. After finding the enhancement paragraphs true, the trial court assessed
appellant’s punishment at twenty years’ and fifty years’ confinement, respectively.

In three points of error, appellant contends that (1) the trial court erred in enhancing

his punishment in both cases with the same enhancement paragraph; (2) the trial

court erred in finding the enhancement paragraphs true because appellant did not

plead true to them; and (3) he was denied effective assistance of counsel. We affirm.

                                     Background

      Appellant was charged by indictment with the offenses of manufacture or

delivery of a controlled substance, namely, methamphetamine, in an amount of 4

grams or more but less than 200 grams1 (cause number 17CR0424) and evading

arrest or detention (cause number 17CR0425).2 The indictments contained the

following enhancement paragraph:

      And it is further presented in and to said Court that, prior to the
      commission of the aforesaid offense, on the 27th day of August, 2003,
      in cause number 03CR0158 in the 212th District Court of Galveston
      County, Texas, the defendant was convicted of the felony offense of
      Manufacture/Delivery of a Controlled Substance.

      The trial court held a plea hearing on March 5, 2018. With regard to the

charged offense of manufacture or delivery of a controlled substance, the trial court

stated:

      That is a first degree felony. The range of punishment for that is life or
      any any term between 99 and five years in the State prison system and

1
      TEX. HEALTH & SAFETY CODE § 481.112(d).
2
      TEX. PENAL CODE § 38.04.
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      a fine up to $10,000. Under certain circumstances, if the State proves
      certain things, the minimum sentence could be 15 years.

Appellant stated that he understood the charge against him and pleaded not guilty.

The trial court accepted appellant’s plea of not guilty.

      With regard to the charged offense of evading arrest or detention, the trial

court stated:

      That is a third degree felony. The range of punishment for that is two
      years to ten years in the State prison system and, again, a fine up to
      $10,000. If the State proves certain things, that could be increased to a
      second degree felony. And in that case, the range of punishment will
      be between two years and 20 years and, again, a fine up to $10,000.

Appellant stated that he understood the charge against him and pleaded not guilty.

The trial court accepted his plea.

      Following a recess, appellant pleaded guilty to the charged offenses. The trial

court accepted his guilty pleas.

      On March 9, 2018, the trial court held a punishment hearing. At the close of

testimony, the following exchange occurred:

      The State: Yes, Your Honor. At this time, we would like to enter
      State’s Exhibits 1 through 4 into evidence, which I believe the
      Defendant—we’ve discussed and will stipulate to is [sic] prior
      judgments.

      Defense Counsel: No objection, your Honor. They all have the seal.

      The State offered Exhibits 1 through 4 consisting of records establishing

appellant’s prior convictions. Exhibit 1, the penitentiary packet in cause number

                                           3
03CR0158, recorded appellant’s 2003 second-degree felony conviction for

possession of a controlled substance, codeine, with intent to deliver, which was used

to enhance the offenses alleged in the indictments. Exhibits 2 through 4 consisted

of records proving up appellant’s three previous convictions for possession of a

controlled substance. The trial court admitted Exhibits 1 through 4.

      At the conclusion of the hearing, the trial court assessed appellant’s sentences

at fifty years’ confinement for the manufacture or delivery of a controlled substance

offense (cause number 17CR0424) and twenty-five years’ confinement for the

evading offense (cause number 17CR0425), with the sentences to run concurrently.

The judgments in both cases reflect that appellant pleaded true to the enhancements,

and the trial court found the enhancements true in both cases. This appeal followed.

                             Use of Prior Conviction

      In his first point of error, appellant contends that the trial court erred in

allowing his prior felony conviction in cause number 03CR0158 to be used to

enhance the indictments in both cases.

      Penal Code section 12.46 provides that “the use of a conviction for

enhancement purposes shall not preclude the subsequent use of such conviction for

enhancement purposes.” TEX. PENAL CODE § 12.46. Section 12.46 was intended to

overrule the judicial bar to the repeated use of prior convictions to enhance




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punishment. Haines v. State, 623 S.W.2d 367, 369 (Tex. Crim. App. 1981); Bonner

v. State, 728 S.W.2d 921, 922 (Tex. App.—Houston [1st Dist.] 1987, no pet.).

      Appellant contends that section 12.46 limits the repeated use of an

enhancement conviction to proceedings that arise later in time. He argues that

because his punishment in both cases was enhanced simultaneously by the single

prior conviction, rather than in a subsequent proceeding, his sentences violate

section 12.46. Appellant acknowledges that case law does not support his position

but nevertheless argues that those cases “appear to be wrongly decided and should

be revisited.”

      However, this Court has previously held that the same prior conviction may

be used to enhance indictments tried simultaneously. See Bonner, 728 S.W.2d at

922 (holding defendants’ same prior conviction could be used to enhance each of

three indictments tried simultaneously). Other Texas appellate courts have reached

the same conclusion. See e.g., Williams v. State, 356 S.W.3d 508, 518 (Tex. App.—

Texarkana 2011, pet. ref’d) (concluding defendant’s prior convictions could be used

as enhancements for both charged counts of possession of controlled substance); Bell

v. State, 326 S.W.3d 716, 724 (Tex. App.—Dallas 2010, pet. dism’d) (finding

defendant’s prior conviction could be used to enhance penalty range of each of three

felonies with which defendant had been charged); Kent v. State, 879 S.W.2d 80, 84

(Tex. App.—Houston [14th Dist.] 1994, no pet.) (“Under Section 12.46, the same

                                         5
prior conviction or convictions may be used to enhance offenses alleged in

indictments tried together.”); Villarreal v. State, 809 S.W.2d 295, 298 (Tex. App.—

Corpus Christi-Edinburg 1991, pet. ref’d) (concluding that trial court did not err in

assessing enhanced punishments for each of defendant’s four charged offenses based

on same prior felony convictions). We decline appellant’s invitation to revisit our

holding in Bonner. Accordingly, we overrule appellant’s first point of error.

                         Plea to Enhancement Paragraphs

       In his second point of error, appellant argues that the trial court erred in (1)

failing to arraign him on the enhancement paragraphs, (2) failing to seek his plea on

the enhancement paragraphs, (3) finding that he pleaded true to the enhancement

paragraphs, and (4) entering judgments reflecting that he pleaded true when he did

not.

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

       (a) 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:

             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. art. 36.01(a)(1).



                                           6
      The reading of the charging instrument is mandatory and serves the dual

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); Lopez v. State, 452 S.W.3d 425, 428 (Tex. App.—Houston [1st Dist.]

2014, pet. ref’d). Article 36.01 applies to the punishment phase of a bifurcated trial.

Warren, 693 S.W.2d at 415–16. 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); Lopez, 452 S.W.3d

at 428.

      Here, however, the jury did not assess punishment. After he pleaded guilty,

appellant elected to have the trial court assess punishment. The Court of Criminal

Appeals has held that, when the punishment phase of the trial is held before the trial

court, the Code of Criminal Procedure does not require the reading of the

enhancement paragraphs and the receipt of the defendant’s plea to the enhancement

paragraphs. See Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973); see

also Lopez, 452 S.W.3d at 428; Davis v. State, 970 S.W.2d 747, 749 (Tex. App.—

Houston [14th Dist.] 1998, no pet.). “When the trial court assesses punishment, a

defendant is not required to state an oral plea to enhancement paragraphs on the




                                          7
record if he has previously stipulated to the allegations in the enhancement

paragraphs.” Lopez, 452 S.W.3d at 429; see also Reed, 500 S.W.2d at 499.

      The record reflects that, prior to appellant’s pleas, the trial court explained to

appellant how the punishment range in each of his cases could be increased if the

State proved certain things. After appellant stated that he understood the charges

against him and entered a guilty plea to both charged offenses, the trial court

accepted appellant’s guilty pleas and found appellant guilty in cause numbers

17CR0424 and 17CR0425. At the punishment hearing, the trial court did not read

the indictments containing the enhancement paragraphs at the beginning of the

punishment phase. Instead, the State introduced, and the trial court admitted,

appellant’s prior convictions to which appellant had stipulated and the corresponding

judgments and sentences.

      A review of the record shows that appellant knew of the consequences of the

enhancement allegations in each case and the minimum sentences he could receive

before the punishment hearing began, and he stipulated to the conviction that was

used as enhancement. Because it assessed punishment, the trial court was not

required to read the allegations in the enhancement paragraphs to appellant or

receive a plea from him regarding the enhancement allegations. See Reed, 500

S.W.2d at 499–500; Lopez, 452 S.W.3d at 428; Davis, 970 S.W.2d at 749.




                                           8
      Appellant also complains that the trial court erred by finding that he pleaded

true to the enhancement paragraphs and entering judgments reflecting that he

pleaded true when he did not.       “Recitals contained in a judgment create a

presumption of regularity and truthfulness, absent an affirmative showing to the

contrary.” Simms v. State, 848 S.W.2d 754, 756 (Tex. App.—Houston [1st Dist.]

1993, pet. ref’d) (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App.

1984)). Under the judicial presumption of regularity, a reviewing court, absent

evidence of impropriety, indulges “every presumption in favor of the regularity of

the proceedings and documents in the lower court.” Light v. State, 15 S.W.3d 104,

107 (Tex. Crim. App. 2000).

      Here, the judgments reflect that appellant pleaded “true” to the enhancement

paragraphs and that the trial court found the enhancement paragraphs in the

indictments to be true. There was no dispute in the trial court about the evidence

presented for the enhancement. Instead of an “affirmative showing” contrary to a

presumption of regularity, the record establishes that appellant responded “no

objection” when the State offered evidence of his prior convictions. Appellant has

not shown that the judgments are not entitled to a presumption of regularity. See

Simms, 848 S.W.2d at 756 (rejecting defendant’s argument that trial court erred by

not announcing in open court its finding of true to enhancement paragraphs because

judgment, which stated trial court had found enhancement paragraphs true, was

                                         9
entitled to presumption of regularity and truthfulness, absent affirmative showing to

contrary). We therefore credit the recitals in the judgments. Appellant’s second issue

is overruled.

                          Ineffective Assistance of Counsel

      In his third point of error, appellant contends that he was denied effective

assistance of counsel because his attorney did not object to (1) the trial court’s failure

to arraign him on the enhancement paragraphs; (2) the recitals in the judgments

reflecting that appellant pleaded true to the enhancements allegations; (3) the

introduction of appellant’s prior convictions without requiring the State to prove that

the convictions were final and that appellant was the person who was previously

convicted of the offenses; and (4) the use of the same enhancement paragraph in

both cases.

A. Standard of Review

      The standard of review for evaluating claims of ineffective assistance of

counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687 (1984). Under

the Strickland two-step analysis, a defendant must demonstrate that (1) his counsel’s

performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. at 687–88, 694; Andrews v. State, 159

S.W.3d 98, 101–02 (Tex. Crim. App. 2005).             “A reasonable probability is a

                                           10
probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694. Failure to make the required showing of either deficient performance

or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.

      An appellant bears the burden of proving by a preponderance of the evidence

that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Any allegation of ineffectiveness must be firmly founded in the record,

and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at

814. When the record is silent, we may not speculate to find trial counsel ineffective.

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In reviewing counsel’s

performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that counsel’s performance

is within a wide range of reasonable professional assistance and trial strategy. See

Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Thompson, 9

S.W.3d at 813. We will find a counsel’s performance deficient only if the conduct

is so outrageous that no competent attorney would have engaged in it. Andrews, 159

S.W.3d at 101. “When handed the task of determining the validity of a defendant’s

claim of ineffective assistance of counsel, any judicial review must be highly

deferential to trial counsel and avoid the deleterious effects of hindsight.”




                                          11
Thompson, 9 S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984)).

B.    Analysis

      Appellant contends that his trial counsel was ineffective when he failed to

object to the lack of an arraignment. As we previously noted, when the punishment

phase of the trial is held before the trial court, the Code of Criminal Procedure does

not require the reading of the enhancement paragraphs and the receipt of the

defendant’s plea to the enhancement paragraphs. See Reed, 500 S.W.2d at 499; see

also Lopez, 452 S.W.3d at 428; Davis, 970 S.W.2d at 749. With regard to appellant’s

assertion that trial counsel rendered ineffective assistance when he did not object to

the use of the same enhancement paragraph in both cases, we noted that Texas courts

have consistently held that the same prior conviction may be used to enhance each

indictment tried simultaneously. See e.g., Bell, 326 S.W.3d at 724; Kent, 879

S.W.2d at 84; Villarreal, 809 S.W.2d at 298; Bonner, 728 S.W.2d at 922. Trial

counsel was not ineffective for not objecting on these grounds.

      Appellant also argues that his trial counsel was ineffective when he did not

object to the judgments stating that appellant pleaded true to the enhancement

allegations. Appellant did not file a motion for new trial raising an ineffective

assistance claim, obtain an affidavit from trial counsel, or request a post-conviction

hearing. Based on this silent record, we cannot conclude that no reasonable trial

                                         12
strategy could justify his trial counsel’s conduct. Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005). Moreover, it is possible that appellate counsel did

not file a motion for new trial because appellant’s trial counsel knew that appellant

had pleaded true to the enhancement allegations and, therefore, such a complaint

would have been futile. In addition, recitals in a judgment create a presumption of

regularity and truthfulness in the absence of an affirmative showing to contrary, see

Simms, 848 S.W.2d at 756, and there is nothing in the record demonstrating that the

judgments are incorrect, see Thompson, 9 S.W.3d at 814.

      Appellant also asserts that trial counsel was deficient when he failed to object

to the introduction of appellant’s prior convictions without requiring the State to

prove that the convictions were final and that appellant was the person who was

previously convicted of the offenses. As we have noted, the record is silent as to

trial counsel’s strategy. In addition, it is possible that appellant told trial counsel

that he was the same person who was convicted of the prior offenses, or that trial

counsel spoke with a fingerprint expert and knew that the judgments belonged to

appellant. It is also possible that counsel stipulated to the judgments in an effort to

strengthen appellant’s plea for leniency. See Donald v. State, 543 S.W.3d 466, 480

(Tex. App.—Houston [14th Dist.] 2018, no pet.) (“[T]he decision to stipulate to

evidence of past convictions would seem to be a classic example of trial strategy.”)

(quoting Stafford v. State, 758 S.W.2d 663, 673–74 (Tex. App.–Houston [1st Dist.]

                                          13
1988), rev’d on other grounds, 813 S.W.2d 503 (Tex. Crim. App. 1991)).

Accordingly, appellant has not shown that his trial counsel’s conduct was “so

outrageous that no competent attorney would have engaged in it.” Goodspeed, 187

S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440).

      Under these circumstances, appellant has not rebutted the strong presumption

that the decisions of counsel during trial fell within the wide range of reasonable

professional assistance. See Thompson, 9 S.W.3d at 814. Because appellant has

failed to meet his burden under the first prong of Strickland, we do not address the

requirements of the second prong. See Strickland, 466 U.S. at 697 (concluding

defendant’s failure to satisfy one prong of two-part test negates court’s need to

consider other prong). Accordingly, we overrule appellant’s third point of error.

                                    Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

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




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