                                  NO. 07-09-0319-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                  NOVEMBER 9, 2010

                         ______________________________


                       DAVID TULIO RODRIGUEZ, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                          _____________________________

          FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

                NO. 10,257; HONORABLE WILLIAM D. SMITH, JUDGE

                           ___________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                               CONCURRING OPINION


      I agree with the result reached by the majority, and I applaud the decision to

address Appellant's third issue as presented; however, I write separately to express my

opinion that Appellant's general premise about that issue is misstated.
        By his third issue Appellant contends the trial court abused its discretion when it

failed to "follow the strictures of Article 36.01 (a)(1), Texas Code of Criminal Procedure,

by not reading the State's enhancement paragraphs to the jury and subsequently

entering the Appellant's plea to the same." While I agree that the trial court committed

error during the punishment phase of Appellant's trial, it wasn't because the

enhancement paragraphs weren't read and a plea wasn't entered.


        On January 29, 2009, a Hutchinson County Grand Jury returned an indictment

charging Appellant with the first degree felony offense of aggravated assault on a public

servant1 (Count One) and the state jail felony offense of burglary of a building2 (Count

Two).    While the indictment itself did not contain any enhancement allegations, on

August 17, 2009, the State filed notice of its intent to seek enhancement of the

punishment range for each count.3           Notwithstanding the express intent to request the

court to instruct the jury on the enhanced range of punishment, the State never insisted

that the enhancements be read or that Appellant enter a plea thereto. By failing to do

so, the State waived those enhancements. Because those enhancements were waived,

the trial court did not commit error by failing to read the enhancements or have the

Appellant enter a plea. While the trial court may have erred in instructing the jury as to

the range of punishment, an issue not presented to this Court, it did not err in the




1
See Tex. Penal Code Ann. § 22.01(a)(2), § 22.02(a)(2), § 22.02(b)(2)(B) (Vernon Supp. 2010).
2
See Tex. Penal Code Ann. § 30.02(a)(1), § 30.02(c)(1) (Vernon Supp. 2010).
3
 See Brooks v. State, 957 S.W.2d 30 (Tex.Crim.App. 1997) (holding that enhancement allegations do not
need to be contained within the body of the primary charging document).
                                                  2
manner presented by Appellant's third issue. Accordingly, I concur with the majority in

finding no reversible error raised.




                                                     Patrick A. Pirtle
                                                         Justice


Do not publish.




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