Affirmed as Reformed and Opinion Filed August 3, 2017




                                        S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-16-00101-CR

                           JESSIE ONEAL DAWKINS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 5
                                  Dallas County, Texas
                          Trial Court Cause No. F-1575397-L

                            MEMORANDUM OPINION
                          Before Justices Bridges, Myers, and Brown
                                  Opinion by Justice Bridges
       Jessie Oneal Dawkins appeals his assault, family violence conviction. A jury convicted

appellant, and the trial court sentenced him to twenty-five years’ confinement. In three issues,

appellant argues the State abandoned the allegations in a special notice of intent to enhance

punishment, the sentence is illegal because it is outside the punishment range, and the judgment

should be reformed to properly reflect the offense for which he was convicted and the degree of

the offense. As reformed, we affirm the trial court’s judgment.

       In May 2015, appellant was charged by indictment with assault, family violence, by

intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood

of the complainant by applying pressure to the complainant’s throat and neck and by blocking

the complainant’s nose and mouth, and appellant had previously been convicted of an offense
involving family violence. The indictment contained an enhancement paragraph alleging a 1987

burglary of a motor vehicle conviction. In December 2015, the State filed a notice of intent to

enhance punishment alleging burglary of a building convictions in 1983 and 1985 and a notice of

extraneous offenses alleging three additional assault offenses; two assault, family violence,

offenses; two theft offenses, and three burglary offenses. Appellant pled not guilty, but a jury

convicted him of the lesser-included, third-degree-felony offense of assault, family violence,

with a prior family violence conviction.

       At a punishment hearing before the trial court, appellant entered a plea of not true to the

enhancement paragraph in the indictment but was not arraigned and did not enter a plea to the

allegations in the State’s notice of intent to enhance punishment. The State called Claudia

Marroquin, an investigator with the Family Violence Division, who testified she reviewed

appellant’s priors from Lubbock County and pulled appellant’s criminal history. The State first

introduced a certified copy of appellant’s 1987 burglary of a vehicle conviction alleged in the

indictment. Through Marroquin, the State also introduced evidence of a 1984 burglary of a

building conviction. Appellant’s counsel asked if the convictions were offered for enhancement

purposes to increase the punishment range, and the prosecutor stated they were. Appellant’s

counsel objected that the 1984 burglary of a building conviction “would run concurrently with”

the burglary of a vehicle conviction alleged in the indictment and was therefore “not permissible

to be used as a[n] enhancement paragraph.” The trial court sustained appellant’s objection and

admitted only the conviction alleged in the indictment. The State next introduced evidence of a

1984 theft of a motor vehicle conviction, and appellant’s counsel again objected that the

conviction could not be used for enhancement purposes because it “would still be running

concurrently with the previous sentence, the latter sentence.” The prosecutor responded that the

1984 theft of a motor vehicle did not run concurrently with the 1987 burglary of a vehicle

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conviction alleged in the indictment.      The trial court, through questioning directed at the

prosecutor, confirmed that the 1984 theft of a motor vehicle conviction was entirely separate

from and did not run concurrently with the 1987 offense alleged in the indictment. The trial

court then overruled appellant’s objection and admitted the 1984 conviction.

       In his argument, counsel for appellant argued that “these cases were all very close in

time” and, if the trial court “were to find any of them true,” [the trial court] could only find one

true penitentiary that would enhance this case.” Counsel requested that the trial court “not make

a finding at all to these cases or find them not true and sentence [appellant] within the range of

punishment on the lesser-included third-degree offense.” The prosecutor argued that a sentence

of twenty-five years was appropriate “given his enhancement paragraphs and his assaultive

criminal history in family violence cases.”       The trial court, “having heard argument and

testimony and reviewed the exhibits and the jury having convicted him of the offense,” imposed

a twenty-five-year sentence. This appeal followed.

       In his first issue, appellant argues that, by failing to arraign appellant on the paragraphs

alleged in a special notice of intent to enhance punishment, the State abandoned the allegations

in the special notice, and the trial court should not have considered them in determining his

sentence. Appellant did not argue in the trial court that the State somehow abandoned the

allegations in the special notice, including the 1984 theft of a motor vehicle conviction and the

1987 burglary of a vehicle conviction. Nor did appellant argue that the trial court was therefore

not permitted to consider these enhancement allegations in assessing punishment. Appellant also

failed to object to the trial court’s failure to arraign him on any enhancement paragraphs other

than the ones contained in the indictment. The Texas Court of Criminal Appeals has stated that

an appellant may not raise this question for the first time on appeal. See Reed v. State, 500

S.W.2d 497, 499 (Tex. Crim. App. 1973); see also Hardman v. State, 614 S.W.2d 123, 125–26

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(Tex. Crim. App. [Panel Op.] 1981) (citing Reed for the proposition that the appellant may not

complain for the first time on appeal about the court’s failure to read the indictment in a bench

trial); Davis v. State, 970 S.W.2d 747, 749 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

Accordingly, we overrule appellant’s first issue.

       In his second issue, appellant argues his sentence is illegal as it is outside the punishment

range because the trial court failed to make a finding on the enhancement allegations. Further,

appellant argues an implied finding is not proper because he did not plead true to the

enhancement allegations in the indictment, he was not arraigned on the enhanced punishment

range, and the judgment and docket sheet do not reflect a finding of true.

       A trial court is not required to make an oral pronouncement of its findings on

enhancements when it assesses punishment. See Meineke v. State, 171 S.W.3d 551, 557 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (trial court not required to make oral

pronouncement of its findings on enhancements). Although the better practice is for the trial

court to announce orally its enhancement findings before sentencing, the failure to do so does not

amount to error as long as the record reflects that the court found the enhancements true and

sentenced the defendant accordingly. See id.; Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d). A trial court makes an implied finding of true to an

enhancement allegation when the record establishes the truth of that allegation. Torres v. State,

391 S.W.3d 179, 183 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).

       Additionally, appellate courts have concluded that a trial court implied a finding of true

to an enhancement allegation if the sentence imposed was outside of the range for the underlying

offense, but was in the range for the offense as enhanced by a prior conviction to which the

defendant has confessed. Id. see Garner v. State, 858 S.W.2d 656, 659–60 (Tex. App.—Fort

Worth 1993, no pet.) (noting that trial court assessed defendant’s punishment at twenty-five

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years and that maximum punishment defendant could receive without finding on enhancements

was ten years); Harris v. State, No. 05-02-01728-CR, 2005 WL 639388, at *1 (Tex. App.—

Dallas Mar. 21, 2005, pet. denied) (holding that, even though trial court made no oral or written

findings on two prior convictions, punishment imposed by trial court fell within enhanced range

and trial court had impliedly found enhancement paragraphs to be true).

       Here, assault, family violence with a previous family-violence conviction is a third-

degree felony. TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West ). A third-degree felony is

punishable by two to ten years’ confinement. Id. § 12.34(a). The punishment range for a third-

degree felony is increased to confinement for twenty-five to ninety-nine years if a defendant has

previously been convicted of two felony offenses and the second offense occurred after the first

conviction became final. Id. § 12.42(d). Thus, the sentence imposed was outside of the range

for the underlying offense, but was in the range for the offense as enhanced by the enhancement

allegations presented at punishment. Under these circumstances, we conclude the trial court

impliedly found the enhancements to be true. See Torres, 391 S.W.3d at 183; Garner, 858

S.W.2d at 659-60. We overrule appellant’s second issue.

       In his third issue, appellant argues the judgment should be reformed to properly reflect he

was convicted of assault, family violence, enhanced, a third-degree felony. The State agrees. In

a single cross-issue, the State argues the judgment should be further reformed to show

appellant’s plea of not true to the enhancement paragraph in the indictment and to show the trial

court found the indictment’s enhancement paragraph and the second enhancement paragraph in

the State’s enhancement notice to be true. We have the power to modify incorrect judgments

when the necessary data and information is available to do so. See TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d

526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d). The record shows appellant was convicted of

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assault, family violence, enhanced, a third-degree felony; appellant pled not true to the

enhancement allegation in the indictment; and the trial court impliedly found the indictment’s

enhancement paragraph and the second enhancement paragraph in the State’s enhancement

notice to be true. We sustain appellant’s third issue and the State’s cross-issue.

       As reformed, we affirm the trial court’s judgment.




                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

160101F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JESSIE ONEAL DAWKINS, Appellant                     On Appeal from the Criminal District Court
                                                    No. 5, Dallas County, Texas
No. 05-16-00101-CR         V.                       Trial Court Cause No. F-1575397-L.
                                                    Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                        Justices Myers and Brown participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        under the heading "Offense for which Defendant Convicted:," "IMPEDE
        BREATH/CIRCULATE ENHANCE" is deleted, and "WITH PREVIOUS
        FAMILY-VIOLENCE CONVICTION" is substituted;
        under the heading "Degree of Offense:," "2ND DEGREE FELONY" is deleted
        and "3RD DEGREE FELONY” is substituted;
        under the heading “Plea to 1st Enhancement paragraph,” “N/A” is deleted and
        “Not True” is substituted;
        under the heading “Findings on 1st Enhancement Paragraph:,” “N/A” is deleted
        and “True” is substituted;
        under the heading “Findings on 2nd Enhancement Paragraph:,” “N/A” is deleted
        and “True” is substituted.
As REFORMED, the judgment is AFFIRMED.


Judgment entered August 3, 2017.




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