MODIFY and AFFIRM; and Opinion Filed April 27, 2017.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-00847-CR
                                       No. 05-16-00849-CR

                             KELVIN DUANE RIVERS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                   Dallas County, Texas
                   Trial Court Cause Nos. F-15-21832-N and F-16-70420-N

                              MEMORANDUM OPINION
                        Before Justices Fillmore, Whitehill, and Boatright
                                   Opinion by Justice Fillmore

       Appellant Kelvin Duane Rivers was convicted of forgery of a financial instrument in trial

court Cause No. F-15-21832-N, convicted of theft in trial court Cause No. F-16-70420-N, and

sentenced to ten years’ confinement for each conviction. In appeal No. 05-16-00849-CR from

the theft conviction, Rivers asserts in his first point of error that because the trial court did not

find an enhancement allegation of the indictment to be true, the sentence imposed is illegal as

outside the applicable range of punishment. In appeal No. 05-16-00847-CR from the forgery

conviction, Rivers asserts in his second point of error that the indictment for forgery of a

financial instrument failed to invoke the jurisdiction of the trial court. We modify the trial

court’s judgment in the theft case to indicate Rivers pleaded true to the enhancement paragraph
and the trial court found the enhancement paragraph to be true. As modified, we affirm the trial

court’s judgment in the theft case. We affirm the trial court’s judgment in the forgery case.

                                                            Background

          On July 29, 2015, Rivers was charged by indictment with the third-degree felony of

forgery of a financial instrument committed against an elderly victim. See TEX. PENAL CODE

ANN. § 32.21(a)(1)(A)(i) (setting out elements of forgery), (d) (explaining that, in general,

forgery of financial instrument is state-jail felony), and (e-1) (elevating offense level “to the next

higher category of offense” if it is shown on the trial of the offense that the offense was

committed against a person sixty-five years of age or older) (West 2016). 1 Pursuant to a plea

agreement, Rivers entered a plea of guilty to the forgery offense. On August 27, 2015, the trial

court deferred a finding of guilt and placed Rivers on community supervision for a period of four

years and imposed a fine of $2,000 that was probated.

          On January 25, 2016, the State filed a motion to proceed with an adjudication of guilt on

the forgery offense based on Rivers’s alleged violation of condition (d) of his community

supervision by failing to report to the community supervision office as directed for the months of

September, October, November, and December 2015, or any other month thereafter, and failing

to the respond to a court summons. The State subsequently moved to withdraw its motion to

proceed to adjudication of guilt on the forgery offense. On February 11, 2016, the trial court

granted the State’s motion to withdraw its motion to proceed to adjudication of guilt and ordered

Rivers’s community supervision conditions were modified to require Rivers to serve fifteen days

in jail and report to probation officers of the trial court within forty hours of release from jail.




     1
       The indictment included an enhancement paragraph regarding a December 4, 1995 final conviction in Dallas County, Texas, for the felony
offense of aggravated sexual assault with a deadly weapon. However, the trial court granted the State’s motion to strike the enhancement
paragraph from the indictment.



                                                                   –2–
       While on community supervision for the forgery offense, Rivers was charged by

indictment with the January 9, 2016 offense of theft of property, namely a motor vehicle, with a

value of more than $2,500 and less than $30,000. See TEX. PENAL CODE ANN. § 31.03(a), (b)(1),

(e)(4)(A) (West Supp. 2016).      The indictment also contained an enhancement paragraph

regarding a December 4, 1995 final conviction in Dallas County, Texas, for the felony offense of

aggravated sexual assault.

       On March 29, 2016, the State filed its second motion to proceed with an adjudication of

guilt on the forgery offense based on Rivers’s alleged violation of condition (a) of his

community supervision by violating the laws of the State. Condition (a) provided Rivers was to

“[c]ommit no offense against the law of this or any other State or the United States,” and was not

to possess a firearm during the term of community supervision. In its second motion to proceed

to adjudication, the State alleged that on or about January 9, 2016, in Dallas County, Texas,

Rivers committed the theft offense.

       In the forgery case, Rivers entered an open plea of true to violation of community

supervision condition (a) and judicially confessed to committing the theft offense as alleged by

the State in its second motion to proceed with adjudication. Rivers also signed a judicial

confession and stipulation of evidence, judicially confessing to committing the theft offense

exactly as alleged in the indictment. Rivers entered an open plea agreement containing his plea

of guilty to the third-degree felony theft offense and true to the enhancement paragraph regarding

his prior conviction for aggravated sexual assault.       The trial court signed Rivers’s plea

agreement, wherein the trial court found the guilty plea to have been knowingly, freely, and

voluntarily made and accepted Rivers’s guilty plea.

       Following a hearing on Rivers’s open plea of guilt, the trial court found Rivers had

violated condition (a) of his community supervision as alleged by the State in its second motion

                                               –3–
to adjudicate guilt, found Rivers guilty of the forgery offense, and assessed punishment of ten

years’ confinement on that charge. The trial court also found Rivers guilty of the theft offense

and assessed punishment of ten years’ confinement on that charge.

       Rivers filed these appeals of the judgments in the forgery offense and the theft offense.

                                          Theft Offense

       In his first point of error, Rivers contends that because the trial court did not make a

finding of true on the enhancement allegation in the indictment for the theft offense, it illegally

sentenced him to a punishment outside the range of punishment proscribed by law for the

offense. According to Rivers, the trial court did not announce an oral finding concerning the

enhancement allegation of the indictment and the judgment reflects no finding on the

enhancement allegation, and without a finding that the enhancement allegation was true, his

sentence was not authorized by law because it is outside the penalty range for the theft offense.

       Rivers signed a judicial confession in which he stipulated to the facts contained in the

indictment, which included the enhancement allegation, and confessed that he committed the

theft offense exactly as alleged in the indictment. The trial court signed its approval of Rivers’s

stipulation and judicial confession. Rivers also signed a plea agreement in which he pleaded

guilty to the third-degree felony theft offense and pleaded true to the enhancement allegation.

The plea agreement contains the trial court’s admonishments, including the punishment range for

the third-degree felony as two to ten years’ confinement and an optional fine not to exceed

$10,000. In the plea agreement signed by Rivers, his attorney, and the trial court, Rivers

acknowledged he understood the range of punishment and admitted and judicially confessed to

committing the offense exactly as alleged in the indictment.

       At the commencement of the open plea hearing, the trial court stated the theft offense

carries a range of punishment of a third-degree felony, that is, two to ten years’ confinement and

                                               –4–
a fine not to exceed $10,000. Rivers acknowledged to the trial court that he understood the range

of punishment for the theft offense and that the theft offense was punishable as a third-degree

felony. Rivers pleaded guilty to the theft offense. The record contains the exchange between the

trial court and Rivers’s counsel regarding the alleged enhancement of the theft-offense

indictment to which Rivers had pleaded true and the resulting increase in the range of

punishment from that of a state-jail felony to that of a third-degree felony. The trial court found

Rivers “guilty on the indictment” of the theft offense beyond a reasonable doubt and assessed

punishment of ten years’ confinement. The trial court did not make an express finding regarding

the enhancement paragraph, but rather marked “N/A” in the spaces of the judgment in which it

should have indicated Rivers’s plea and its finding on the enhancement paragraph.

           Rivers pleaded guilty to the state-jail felony theft.                                    See TEX. PENAL CODE ANN.

§ 31.03(e)(4)(A) (state-jail felony offense if value of property stolen is $2,500 or more but less

than $30,000). The punishment range applicable to a state-jail felony is 180 days to two years’

confinement and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.35(a), (b) (West

Supp. 2016). However, Rivers pleaded true to an enhancement allegation of aggravated sexual

assault contained in the indictment. An individual adjudged guilty of a state-jail felony shall be

punished for a third-degree felony if it is shown on the trial of the offense that the individual has

previously been finally convicted of any felony under section 20A.03 or 21.02 or listed in section

3g(a)(1) of article 42.12 of the code of criminal procedure. Id. at § 12.35(c)(2)(A). 2 The

enhancement allegation in the theft offense indictment to which Rivers pleaded true was a

conviction for aggravated sexual assault, an offense contained in section 3g(a)(1) of article

     2
        After the open plea hearing, an amendment to section 12.35(c)(2)(A) of the penal code became effective on January 1, 2017. The
amendment provides that an individual adjudged guilty of a state-jail felony shall be punished for a third-degree felony if it is shown on the trial
of the offense that the individual has previously been finally convicted of any felony under section 20A.03 or 21.02 or listed in article 42A.054(a)
of the code of criminal procedure. See Act of May 26. 2015, 84th Leg., R.S., ch. 770, § 2.81, 2015 Tex. Gen. Laws 2393, 2393 (current version
at TEX. PENAL CODE ANN. § 12.35(c)(2)(A)). We refer to the previous version of section 12.35(c)(2)(A) in this opinion because it was the
version in effect at the time of Rivers’s open plea hearing and signing of the judgment in the theft case.



                                                                       –5–
42.12. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3(g)(1)(E) (section 22.021 of the penal

code — aggravated sexual assault). (West Supp. 2016).                                          Thus, the punishment range was

enhanced to that of a third-degree felony. The punishment range applicable to a third-degree

felony is two to ten years’ confinement and a fine not to exceed $10,000. TEX. PENAL CODE

ANN. § 12.34 (West 2011).

           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) (holding trial court was 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). 3

           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 a trial court

made an implied finding of true to an enhancement allegation if the sentence imposed was

outside the range for the underlying offense, but was within the range for the offense as

enhanced by a prior conviction to which the defendant has confessed. Id. at 184; see also

Garner v. State, 858 S.W.2d 656, 659–60 (Tex. App.—Fort Worth 1993, pet. ref’d) (noting trial




     3
         See also Davis v. State, No. 05-14-01374-CR, 2016 WL 310093, at *6 (Tex. App.—Dallas Jan. 26, 2016, no pet.) (mem. op., not
designated for publication) (it is preferred that trial courts read enhancement paragraphs orally and find them to be true or not true on the record,
but trial court does not err by not doing so; trial court implicitly found enhancement paragraph in indictment to be true and sentenced defendant
within correct punishment range).



                                                                       –6–
court assessed defendant’s punishment at twenty-five years’ confinement and maximum

punishment defendant could receive without finding on enhancements was ten years). 4

           Here, the trial court imposed a sentence of ten years’ confinement, which is a term of

confinement outside the punishment range for a state-jail felony but within the range of

punishment for a state-jail felony enhanced by a prior aggravated sexual assault conviction, the

enhancement allegation in the theft offense indictment to which Rivers pleaded true. See TEX.

PENAL CODE ANN. § 12.35(c)(2)(A). Accordingly, we conclude the trial court made an implied

finding of true to the enhancement allegation of the theft offense indictment. See Almand v.

State, 536 S.W.3d 377, 379 (Tex. Crim. App. 1976) (although trial court did not make express

finding concerning defendant’s prior conviction, it was “obvious” from trial court’s

admonishments and statements regarding range of punishment that trial court found prior felony

conviction and sentenced defendant accordingly); Torres, 391 S.W.3d at 184. 5

           Based on Rivers’s plea of true to the enhancement allegation of the indictment and the

trial court’s implied finding that the allegation in the enhancement paragraph of the theft offense

indictment was true, the sentence imposed by the trial court was not outside the range of

punishment for the theft offense for which Rivers was convicted. We resolve Rivers’s first point

of error against him.

                                        Modification of Judgment in Theft Case

           The trial court’s judgment in the theft case (Cause No. F-16-70420-N) incorrectly reflects

“N/A” as Rivers’s plea and the trial court’s finding as to the enhancement paragraph. The record

reflects Rivers pleaded true to the enhancement paragraph, and, as discussed above, we have

     4
        See also Harris v. State, No. 05-02-01728-CR, 2005 WL 639388, at *1, 2 (Tex. App.—Dallas Mar. 21, 2005, pet. ref’d) (not designated
for publication) (holding that although trial court made no oral or written findings on two enhancement paragraphs, punishment imposed by trial
court fell within enhanced range and trial court had implicitly found enhancement paragraphs to be true).
     5
       See also Enriquez v. State, No. 05-12-01037-CR, 2014 WL 1010174, at *5 (Tex. App.—Dallas Mar. 13, 2014, pet. ref’d) (mem. op., not
designated for publication) (trial court implied finding of true to enhancement paragraph); Harris, 2005 WL 639388, at *2.



                                                                    –7–
concluded the trial court impliedly found the enhancement paragraph to be true. Accordingly,

we modify the sections of the judgment in Cause No. F-16-70420-N titled “Plea to 1st

Enhancement Paragraph” and “Findings on 1st Enhancement Paragraph” to state “True.” 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). 6

                                                           Forgery Offense

             The indictment in the forgery case alleged that on or about June 22, 2015, in Dallas

County, Texas, Rivers:

             did unlawfully then and there, with intent to defraud or harm another, namely,
             JEAN FRAZIER, an elderly individual 65 years of age or older, alter and make
             and complete and execute and authenticate a writing so it purported to be the act
             of JEAN FRAZIER, who did not authorize the act, and said writing was a
             CHECK # 3603 from Bank Name Account Number ending in last four digits
             6760 in the amount of $700 made out to [Rivers] from the complainant.

In his second point of error, Rivers contends the indictment did not invoke the jurisdiction of the

trial court. Rivers argues that, because the indictment did not “identify the bank account by

either name of the bank or the full bank account number” it neither “set out the check in haec

verba” nor “describe[d] the [allegedly forged] writing with sufficient particularity to excuse the

haec verba requirement.” 7 Therefore, according to Rivers, the indictment “did not allege an

offense and failed to invoke the jurisdiction of the trial court.”

             Under section 32.21(a)(1)(A)(i) of the penal code, “forge” means to “alter, make,

complete, execute, or authenticate any writing so that it purports to be the act of another who did

not authorize that act.” TEX. PENAL CODE ANN. § 32.21(a)(1)(A)(i) (West 2016). A person

commits the offense of forgery “if he forges a writing with intent to defraud or harm another.”

     6
       See also Enriquez, 2014 WL 1010174, at *5 (modifying trial court’s judgment to reflect defendant’s plea of true and trial court’s implied
finding of true to enhancement paragraph).
     7
          Haec verba means verbatim. See haec verba, BLACK’S LAW DICTIONARY (10th ed. 2014); Tynes v. State, 17 Tex. Ct. App. 123, 128
(1884).



                                                                     –8–
Id. § 32.21(b). An offense under section 32.21 of the penal code is a state-jail felony if the

writing is or purports to be, among other things, a check. Id. § 32.21(d). However, “[a]n offense

under this section is increased to the next higher category of offense if it is shown on the trial of

the offense that the offense was committed against an elderly individual as defined by Section

22.04.” Id. § (e-1). “Elderly individual” under section 22.04(c) of the penal code means a

person sixty-five years of age or older. Id. § 22.04(c)(2) (West Supp. 2016).

           No objection to any purported defect, error, or irregularity of form or substance of the

indictment was pursued by Rivers in the trial court. 8 Article 1.14 of the code of criminal

procedure provides in part that:

           [i]f the defendant does not object to a defect, error, or irregularity of form or
           substance in an indictment or information before the date on which the trial on the
           merits commences, he waives and forfeits the right to object to the defect, error,
           or irregularity and he may not raise the objection on appeal or in any other
           postconviction proceeding.

TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005). Rivers acknowledges this “hurdle” to

preserving his complaint on appeal regarding the indictment. Furthermore, Rivers did not appeal

from the order placing him on deferred adjudication for the forgery offense. As a general rule,

the original plea resulting in deferred adjudication cannot be attacked in an appeal of a judgment

revoking community supervision. Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001).

Rivers acknowledges this additional “hurdle” to preserving his complaint on appeal regarding the

indictment.

           Rivers contends, however, that he may raise his jurisdictional argument for the first time

on appeal because, since the indictment failed to invoke the trial court’s jurisdiction, the

     8
         After he was already represented by counsel, Rivers filed a pro se motion to quash the indictment. That form motion provides “[i]t does
not appear from the face of the indictment that this court has jurisdiction over this particular cause,” and then indicates the movant should “state
reason for lack of jurisdiction.” No purported reason for lack of jurisdiction was stated in Rivers’s pro se motion. The record does not indicate
Rivers brought his pro se motion to the trial court’s attention or that Rivers’s counsel pursued or sought a ruling on the motion. See Robinson v.
State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007) (criminal defendant is not entitled to hybrid representation in the same cause and a trial court
is free to disregard any pro se motion presented by a defendant who is represented by counsel).



                                                                       –9–
judgment in the forgery case is void. A void-judgment exception exists to the general rule that

an original plea resulting in deferred adjudication cannot be attacked in an appeal of a judgment

revoking community supervision. Id. The void-judgment exception recognizes that there are

some rare situations in which a trial court’s judgment is accorded no respect due to a complete

lack of jurisdiction to render the judgment in question. Id. “A void judgment is a ‘nullity’ and

can be attacked at any time.” Id. at 667–68 (citing Ex parte Patterson, 969 S.W.2d 16, 19 (Tex.

Crim. App. 1998)). Thus, a defendant who was placed on deferred adjudication may raise on

appeal of a judgment revoking community supervision error that would render the original

judgment void. Id. at 668.

       The Texas Constitution requires that, unless waived by the defendant, the State must

obtain a grand jury indictment in a felony case. Teal v. State, 230 S.W.3d 172, 174 (Tex. Crim.

App. 2007); see also TEX. CONST. art. I, § 10. Absent an indictment or valid waiver, a district

court does not have jurisdiction over that case. Teal, 230 S.W.3d at 174–75 (citing Cook v.

State, 902 S.W.2d 471, 475–76 (Tex. Crim. App. 1995)). Rivers asserts the indictment failed to

vest the trial court with jurisdiction because the indictment does not satisfy the requisites of a

charging instrument and the trial court thus had no jurisdiction over the defendant. See Nix, 65

S.W.3d at 668 (judgment of conviction is void when document purporting to be charging

instrument — indictment, information, or complaint — does not satisfy constitutional requisites

of charging instrument, thus trial court has no jurisdiction over defendant). To constitute a valid

indictment under the Texas Constitution, the charging instrument must at least charge a person

with the commission of an offense. Cook, 902 S.W.2d at 479–80; see also TEX. CONST. art. V,

§ 12(b) (“An indictment is a written instrument presented to a court by a grand jury charging a

person with the commission of an offense”).        “[A] written instrument is an indictment or

information under the Constitution if it accuses someone of a crime with enough clarity and

                                              –10–
specificity to identify the penal statute under which the State intends to prosecute, even if the

instrument is otherwise defective.” Duron v. State, 956 S.W.2d 547, 550–51 (Tex. Crim. App.

1997). A charging instrument is constitutionally sufficient if the district court and the defendant

can determine, from the face of the indictment, that the indictment intends to charge a felony or

other offense for which the district court has jurisdiction. Teal, 230 S.W.3d at 181.

       Applying the test for the constitutional sufficiency of a charging instrument, the

indictment in this case contains allegations that Rivers, with intent to defraud or harm an elderly

individual, did alter, make, complete, execute, and authenticate a check in the amount of $700

made out to Rivers, such that it purported to be the act of the elderly individual, who did not

authorize the act. See TEX. PENAL CODE ANN. § 32.21(a)(1)(A)(i). The indictment allegation

that Rivers committed a state-jail felony offense by forging a check with intent to defraud or

harm an elderly individual elevated the offense “to the next higher category of offense.” See

TEX. PENAL CODE ANN. § 32.21(b), (d), and (e-1); see also TEX. CODE CRIM. PROC. ANN. art.

4.05 (West 2015) (district courts and criminal district courts shall have original jurisdiction in

felony criminal cases). The indictment sets out the elements of the offense of forgery and

identifies the financial instrument, a check, allegedly forged by Rivers. Thus the district court

and Rivers could determine, from the face of the indictment, that the State intended to charge

Rivers with the felony offense of forgery for which a district court has jurisdiction.

Consequently, the indictment, as a whole, met the constitutional requirements of a charging

instrument. See Teal, 230 S.W.3d at 182 (indictment, as a whole, was sufficient to vest district

court with subject-matter jurisdiction and give defendant notice State intended to prosecute him

for felony offense).

       Because the indictment is constitutionally sufficient, any alleged defect in the indictment

is not jurisdictional, but rather a defect of form or substance that is waived if not raised before

                                               –11–
trial. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b); Smith v. State, 309 S.W.3d 10, 17–18 (Tex.

Crim. App. 2010).         “[I]ndictments charging a person with committing an offense, once

presented, invoke the jurisdiction of the trial court, and jurisdiction is no longer contingent on

whether the indictment contains defects of form or substance.” Teal, 230 S.W.3d at 177 (citing

Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990)). Thus, because “all substantive

defects in indictments” are subject to waiver, the existence of such defects does not render the

indictment “void.” See id. at 178.

       Rivers did not object to the alleged defect in the indictment before the open plea hearing.

Therefore, Rivers has waived his argument on appeal that the trial court lacked jurisdiction over

the forgery offense. See id. Accordingly, we resolve Rivers’s second point of error against him.

                                           Conclusion

       We affirm the trial court’s judgment in the forgery case (Cause No. F-15-21832-N). As

modified, we affirm the trial court’s judgment in the theft case (Cause No. F-16-70420-N).




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE



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

160847F.U05




                                              –12–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

KELVIN DUANE RIVERS, Appellant                      On Appeal from the 195th Judicial District
                                                    Court, Dallas County, Texas,
No. 05-16-00847-CR         V.                       Trial Court Cause No. F-15-21832-N,
                                                    Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                        Justices Whitehill and Boatright
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 27th day of April, 2017.




                                             –13–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

KELVIN DUANE RIVERS, Appellant                      On Appeal from the 195th Judicial District
                                                    Court, Dallas County, Texas,
No. 05-16-00849-CR         V.                       Trial Court Cause No. F-16-70420-N.
                                                    Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                        Justices Whitehill and Boatright
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The sections of the trial court’s judgment titled “Plea to 1st Enhancement
       Paragraph” and “Findings on 1st Enhancement Paragraph” are modified to state
       “True.”

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 27th day of April, 2017.




                                             –14–
