Affirmed and Opinion filed June 26, 2014.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00936-CR
                                   NO. 14-13-00937-CR

                      HOKE HENRY EBERHARDT, Appellant

                                               V.

                          THE STATE OF TEXAS, Appellee

                   On Appeal from the 221st District Court
                        Montgomery County, Texas1
      Trial Court Cause Nos. 12-05-05302-CR & 12-05-05302-CR Court 2

                                      OPINION
       These appeals are brought by appellant Hoke Henry Eberhardt from two
convictions: aggravated assault against a public servant and aggravated robbery.
Appellant entered a plea of guilty on both charges and a plea of true to the


       1
          This case was transferred to this court from the Ninth Court of Appeals. In cases
transferred by the Supreme Court of Texas from one court of appeals to another, the transferee
court must decide the case in accord with the precedent of the transferor court if the transferee
court’s decision would have been inconsistent with the precedent of the transferor court. See Tex.
R. App. P. 41.3.
enhancement allegation. The jury sentenced appellant to imprisonment for thirty
years for the offense of aggravated assault and fifty years for the offense of
aggravated robbery. The sentences were ordered to run concurrently.2

         The record reflects appellant pleaded guilty to both offenses to the jury. In
his sole issue, appellant complains there was never a finding of his guilt, either by
the trial court or the jury.3

         We agree with appellant that his plea of guilty to the jury made his trial a
unitary proceeding. State v. Aguilera, 165 S.W.3d 695, 698 n.6 (Tex. Crim. App.
2005). Appellant claims that “[w]hen a trial becomes a unitary proceeding, the
trial court must instruct the jury to find the defendant guilty as part of the
punishment charge.” The cases cited by appellant, however, do not support his
claim.

         Gonzales v. State states, “the court should instruct the jury to find the
defendant guilty as part of the punishment charge.” 868 S.W.2d 854, 857 (Tex.
App.—Dallas 1993, no pet.) (emphasis added). The decision in Gonzales turned
upon the State’s breach of the plea bargain agreement, not whether the jury was
instructed to find the defendant guilty. In Ricondo v. State, the court noted “unlike
normal jury instructions in such situations, the jurors were not expressly instructed
to find the appellant guilty.” 634 S.W.2d 837, 840 (Tex. Crim. App. 1982). This
was not the issue raised, however, and the court made no finding the failure to
instruct the jury to find the defendant guilty was error or that any harm resulted and
ultimately affirmed the judgment. In Basaldua v. State, the court noted that,

         2
         Both sentences were ordered to run consecutively to appellant’s sentence for his
conviction in trial court cause number 1085818, imposed on March 7, 2008, for retaliation.
         3
          The record reflects the judge heard the plea, admonished appellant, accepted the plea
and found it to be voluntary. The judge did not say “I find you guilty” or specific words to that
effect. The jury charges asked questions of punishment only.

                                               2
though it was argued that the charge did not require the jury find the defendant
guilty, the trial court used a standard form that instructed the jury to find the
defendant guilty and assess his punishment. 481 S.W.2d 851, 855 (Tex. Crim.
App. 1972).4

       None of these cases support appellant’s contention that it is error, much less
reversible error, where no such instruction is given. To the contrary, it is well
established that when a defendant has entered a guilty plea to a felony before the
jury, there remains no issue of guilt for the factfinder to determine. Holland v.
State, 761 S.W.2d 307, 313 (Tex. Crim. App. 1988). See also In re State ex rel.
Tharp, 393 S.W.3d 751, 757 (Tex. Crim. App. 2012) (a plea of guilty to a jury
eliminates guilt as an issue to be determined). A plea of guilty substitutes for a
jury verdict of guilt and is itself a conviction. Fuller v. State, 253 S.W.3d 220, 227
(Tex. Crim. App. 2008). Like a jury’s verdict, a plea of guilty is conclusive and
nothing more is required but to give judgment and sentence. Id. “When a
defendant pleads guilty to a jury, the jury need not return any verdict of guilty.
The case simply proceeds with a unitary punishment hearing.” Id. Because a
finding of guilt was not required when appellant pleaded guilty to the jury, we
overrule appellant’s issue.




       4
          In an unpublished opinion, the Dallas Court of Appeals found there was no error in the
trial court’s punishment verdict form stating in its first sentence. “We, the jury, having found the
defendant guilty.” Graham v. State, 05-05-00547-CR, 2006 WL 2106713 at *3 (Tex. App.—
Dallas July 31, 2006, pet. ref'd) (mem. op., not designated for publication). Here, the charge on
Count I stated in its first sentence, “[appellant], having been found guilty by the Court.” The
charge on Count II stated in its first sentence, “the Court having found him Guilty . . . .”

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      The judgments of the trial court are affirmed.




                                      /s/       Martha Hill Jamison
                                                Justice


Panel consists of Justices Christopher, Jamison, and McCally.
Publish — Tex. R. App. P. 47.2(b).




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