       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                    NO. 03-19-00098-CR


                                 Anthony Macias, Appellant

                                               v.

                                 The State of Texas, Appellee




              FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY
          NO. 18-107, THE HONORABLE CHRIS SCHNEIDER, JUDGE PRESIDING



                           MEMORANDUM OPINION


              A jury convicted Anthony Macias of the second-degree felony offense of

aggravated assault with a deadly weapon and assessed his punishment, enhanced under the

habitual-offender provision of the Texas Penal Code, at forty years’ imprisonment. See Tex.

Penal Code §§ 12.42(d), 22.02(a)(2), (b). In three issues, Macias challenges his sentence,

contending that he did not enter a plea to the two enhancement paragraphs in his indictment

before sentencing and that the district court erred by submitting an incorrect punishment

instruction with the option of imposing a fine and by instructing the jury to find both

enhancement paragraphs true. We will affirm the district court’s judgment of conviction.


                                      BACKGROUND

              Macias’s assault indictment alleged that he caused bodily injury to Edgardo

Escamilla by cutting him on his neck and hands with a knife. The indictment contained two
enhancement paragraphs alleging that Macias had prior convictions for assault on a public

servant and for burglary of a habitation.     See id. §§ 12.42(d), 22.01(b)(1), 30.02(a). The

indictment was read to the jury, and Macias pled not guilty in open court. After hearing

testimony from two police officers who responded to the scene of the assault, an eyewitness, and

Escamilla, the jury found Macias guilty as charged in the indictment.

               Before beginning the punishment phase of trial, Macias executed a “Defendant’s

Stipulation,” stating:


       Comes now the defendant, Anthony Macias, and makes the following stipulations
       in this cause:

       I, Anthony Macias, am the same person who committed the [the] each of the
       following offenses:

       On or about December 13, 2013, the defendant, in Gonzales County, Texas, was
       convicted of Assault on a Public Servant in Cause Number 10-11-A in the 25th
       Judicial District Court of Gonzales County, Texas.

       On or about November 9, 2000, the defendant, in Gonzales County, Texas, was
       convicted of Burglary of a Habitation in Cause Number 13797 in the 25th Judicial
       District Court of Gonzales County, Texas.


Macias, his attorney, and a prosecutor signed the stipulation. While the jury was recessed and

before addressing the stipulation, the district court stated that the charge on punishment had been

prepared and asked if there were any objections or requested changes to it. Macias’s attorney

stated, “No, sir.” The district court then noted that Macias had “executed a stipulation as to the

priors” and that it would be read to the jury. The prosecutor announced that the stipulation

would be the State’s only evidence during punishment, and Macias’s attorney announced that

there would be no evidence from the defense. The court responded, “All right. And then so

we’ll bring them in, stipulate and charge them, and then just give argument.”

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                  After the jury returned, the prosecutor offered the exhibits and testimony from

guilt-innocence and the stipulation into evidence.       The court admitted the guilt-innocence

evidence and asked Macias’s attorney if there was any objection to the stipulation. Macias’s

attorney stated, “No objection.” The entire stipulation was read to the jury—noting that Macias,

his attorney, and a prosecutor had signed it—and the State rested. Macias also rested, and both

parties closed.

                  Next the district court read the charge on punishment to the jury, including the

allegations from the enhancement paragraphs. Reading from the charge, the district court stated

that Macias had pled “true” to the enhancement paragraphs and that the jury was instructed to

find the enhancement paragraphs true beyond a reasonable doubt and to assess punishment at

confinement in the Texas Department of Criminal Justice “for any term of not less than 25 years

or not more than 99 years or for life. In addition, you may assess a fine not to exceed ten

thousand dollars.”

                  During closing argument, Macias’s attorney acknowledged Macias’s stipulation

and the minimum twenty-five-year punishment:


       As you heard, Anthony’s got two prior convictions. He’s been to the penitentiary
       before on[c]e in 2000 and on[c]e in 2013. He went ahead and stipulated to those
       and admitted that they’re true. So you just have to find that they’re true. And as a
       result of those two prior convictions[,] that’s why the minimum is 25. In Texas,
       we don’t really call it a three strikes law. But in Texas once you have two priors
       and you have another of a certain grade of felony, then it raises—it’s call[ed]
       habitual punishment. And it raises the minimum to 25. So that’s why—that’s
       where we are.

       What I would ask you to take into account is that the State took care of those
       priors for you. That’s why we’re starting at 25. And I’d just ask you not to try to
       hammer him because of those priors. He’s already done that time. And base it on
       just what you saw in the trial here. A fine is in my opinion completely


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       unnecessary because he’s going to be doing at least 25 years in prison. So we’re
       asking for 25. Thank you.


Similarly, the prosecutor noted during closing, “[Y]ou have heard about his two prior trips to the

penitentiary. The judge has told you that based on all of these factors that he is facing a

minimum of 25 years all the way up to 99 and/or life in prison.”

                 During deliberations, the jury sent a note to the district court asking, “Is the fine

applied as restitution for the victim? How is the fine applied?” With approval of all counsel, the

district court sent the jury a written response stating, “You have received all of the evidence and

instructions that you are to receive. Please continue your deliberations.”

                 The jury returned a verdict assessing Macias’s punishment at forty years’

imprisonment and no fine. The district court rendered judgment on the jury’s verdict. Docket

entries in the record include a notation that at punishment, Macias “stipulated to 2 prior felony

convictions.” Additionally, the district court’s judgment of conviction shows that as to the first

and second enhancement paragraphs, Macias “pleaded true.”

                 Macias filed a motion for new trial that challenged the judgment in two sentences:

“[t]he verdict was contrary to the law and evidence” and “[t]he trial court erred in overruling the

defendant’s motion for a directed verdict.” 1 He did not complain that he had not pled true to the

enhancement paragraphs.       The district court denied the motion for new trial. This appeal

followed.




       1
            No motion for directed verdict appears in the record.
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                                         DISCUSSION

Failure to enter plea to enhancement paragraphs

               For the first time on appeal, Macias contends that he did not enter a plea to the

enhancement paragraphs before sentencing and that “the entire proceedings on punishment were

a nullity.” In criminal trials, a prosecuting attorney must read the indictment or information to

the jury, and the defendant’s plea must be stated. Tex. Code Crim. Proc. art. 36.01(a)(1), (2). If

prior convictions are alleged only for purposes of enhancing punishment, the part of the

indictment or information reciting those convictions must not be read to the jury until the

punishment phase. Id. art. 36.01(a)(1). The reading of enhancement paragraphs during the

punishment phase and the entry of a plea to them are mandatory. Turner v. State, 897 S.W.2d

786, 788 (Tex. Crim. App. 1995).

               However, Macias failed to raise his alleged error with the district court and thus

failed to preserve any such error for our review. See Mendez v. State, 212 S.W.3d 382, 388 (Tex.

App.—Austin 2006, pet. ref’d) (holding that defendant’s objection at any point during

punishment phase is sufficient to preserve error when defendant has not entered plea to

enhancement allegations); see also Tex. R. App. P. 33.1(a); Burley v. State, Nos. 14-09-00868-

CR, 14-09-00869-CR, 2010 Tex. App. LEXIS 9933, at *6-7 (Tex. App.—Houston [14th Dist.]

Dec. 16, 2010, no pet.) (mem. op., not designated for publication) (concluding that defendant

failed to preserve complaint about his failure to plead “true” or “not true” to enhancement

paragraphs in indictment); Pope v. State, No. 05-02-01745-CR, 2004 Tex. App. LEXIS 4783, at

*16 (Tex. App.—Dallas May 27, 2004, pet. ref’d) (op. on reh’g, not designated for publication)

(concluding that defendant failed to preserve complaint by objection during trial or in motion for

new trial about his failure to enter plea to enhancement paragraph).

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               Even if Macias had preserved his complaint, he stipulated to both enhancement

paragraphs in the indictment as “true.” The Texas Court of Criminal Appeals has recognized

that a defendant in a criminal case may stipulate to evidence against him, and if he does so, his

stipulation is a kind of judicial admission that requires “no evidence from the party benefitting

by the admission.” Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005) (quoting 9

John H. Wigmore, Wigmore on Evidence § 2591 (3d ed. 1940)). The Court stated that:


       [a]n express waiver, made in court or prepatory to trial, by the party or his
       attorney, conceding for the purposes of the trial the truth of some alleged fact, has
       the effect of a confessory pleading, in that the fact is thereafter to be taken for
       granted; so that the one party need offer no evidence to prove it, and the other is
       not allowed to disprove it. This is what is commonly termed a solemn—i.e.,
       ceremonial or formal—or judicial admission, or stipulation. It is, in truth, a
       substitute for evidence, in that it does away with the need for evidence.


Id. (quoting 9 Wigmore on Evidence § 2588). Thus, the Court concluded that by stipulating to

prior convictions, a defendant makes a judicial admission removing the need for proof of those

convictions. Id. Here, Macias’s stipulation to the truth of his two prior convictions constituted a

judicial admission requiring no proof of those convictions. See id.; see also Flowers v. State,

220 S.W.3d 919, 921-22 (Tex. Crim. App. 2007) (noting that although certified copy of final

judgment and sentence may be preferred means of proving existence of prior conviction and

defendant’s link to that conviction, both may be proven different ways, including by defendant’s

admission or stipulation). Accordingly, we overrule Macias’s first issue.


Punishment instruction with option of imposing fine

               In his second issue, Macias contends that he was egregiously harmed by the

district court’s submission of an incorrect punishment instruction with the option of imposing a


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fine, which is not available under the habitual-offender statute. See Tex. Penal Code § 12.42(d).

He points out that the jury sent a note asking whether the fine would be applied as restitution to

the victim, and he contends that “[b]y opting for a fine of zero dollars after receiving the trial

court’s response to the note, the jury clearly opted for a higher sentence than its inclinations

would have directed if the unlawful fine option had never been erroneously submitted.” The

State acknowledges that the habitual-offender statute does not allow a fine but contends that such

error was not egregiously harmful to Macias. We agree.

               We review alleged jury-charge error in two steps: first, we determine whether

error exists; if so, we evaluate whether any harm resulting from such error requires reversal. See

Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Price v. State, 457 S.W.3d 437,

440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). As the

State acknowledges, subsection 12.42(d) of the Penal Code does not allow for the imposition of a

fine. See Tex. Penal Code § 12.42(d) (setting punishment range at imprisonment for twenty-five

to ninety-nine years or life); Dolph v. State, 440 S.W.3d 898, 908 (Tex. App.—Texarkana 2013,

pet. ref’d) (modifying judgment of conviction to delete $10,000 fine that was not authorized

under subsection 12.42(d) and affirming judgment of conviction as modified). Inclusion of the

fine as an option in the court’s charge on punishment was error.

               Having found error in the jury charge, we must consider whether Macias was

egregiously harmed by such error. Macias acknowledges that he failed to object to any error in

the jury charge at trial. When a defendant fails to object to the district court’s charge, any charge

error will not result in reversal of the conviction without a showing of egregious harm that

deprived the defendant of a fair and impartial trial. Chambers v. State, 580 S.W.3d 149, 154

(Tex. Crim. App. 2019). Such harm must be actual and not merely theoretical. Id. Charge error

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is considered egregiously harmful when it “affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory.” Arteaga, 521 S.W.3d at 338.

“Egregious harm is a ‘high and difficult standard’ to meet, and such a determination ‘must be

borne out by the trial record.’” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015)

(quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). “In examining the

record for egregious harm, we consider the entire jury charge, the state of the evidence, the

closing arguments of the parties, and any other relevant information in the record.” Arteaga, 521

S.W.3d at 338.

                 Here, the fine was improperly included as an option in the charge but resulted in

no actual, rather than theoretical, harm because the jury awarded nothing in the blank allowing

for the assessment of that fine. The jury was not precluded from considering the proper range of

punishment under subsection 12.42(d) and did not exceed the statutory punishment range by its

verdict. See Tex. Penal Code § 12.42(d). Macias contends the jury could have considered

evidence of Escamilla’s “financial shortcomings” by increasing the term of Macias’s sentence.

This contention is pure speculation, which would constitute, at most, theoretical harm. Nothing

in the record shows that the jury would have decreased the imprisonment term, if it had also

assessed a fine. Further, if the jury had actually been persuaded that Escamilla required financial

compensation, the district court’s response to the note—which did not disallow the fine and said

nothing about how any fine would apply—would not have dissuaded the jury from entering any

amount up to $10,000. There was no argument about the fine at closing, aside from Macias’s

attorney’s request that no fine be awarded, which the jury apparently heeded.

                 After considering all the above factors, we conclude that Macias has not shown

that the erroneous instruction about a fine that was ultimately not awarded by the jury constituted

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error that affected the very basis of the case, deprived him of a valuable right, or vitally affected

a defensive theory. See Arteaga, 521 S.W.3d at 338. Further, Macias has not shown that the

charge error, which resulted in the imposition of a fine of zero, caused him “actual rather than

theoretical harm.” See Chambers, 580 S.W.3d at 154; Cartwright v. State, 833 S.W.2d 134, 136-

37 (Tex. Crim. App. 1992) (concluding that defendant was not egregiously harmed by charge

that allowed jury to consider imposing fine greater than amount allowed by law when jury

ultimately imposed amount that was within lawful range); Dolph, 440 S.W.3d at 908 (deleting

$10,000 fine awarded under subsection 12.42(d) from judgment of conviction); cf. Quesada v.

State, 398 S.W.3d 731, 733-34 (Tex. App.—San Antonio 2009, no pet.) (holding that defendant

was egregiously harmed by instruction that failed to offer jury two options required by statute—

to assess only a fine, or only confinement up to one year; and thus, that jury was precluded from

considering full range of punishment options available to defendant). In the absence of a

showing that the error in this charge caused him egregious harm, we overrule Macias’s second

issue.


Instruction to find enhancement paragraphs true

                In his third issue, Macias contends that he was egregiously harmed by the district

court’s instruction to the jury to find the enhancement paragraphs true. He complains that he

was deprived of the right to hold the State to its burden of proof beyond a reasonable doubt and

that he was egregiously harmed because no evidence was introduced during punishment except

for the stipulation.

                However, the Court of Criminal Appeals has rejected just such a premise, noting:




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       The issue is not whether the State proved its case, but whether [the defendant]
       may argue that the State failed to prove its case on an element to which he
       stipulated. He may not. By stipulating, [the defendant] “waived any right to
       contest the absence of proof on the stipulated elements.”


Bryant, 187 S.W.3d at 401 & n.11 (quoting United States v. Harrison, 204 F.3d 236, 240 (D.C.

Cir.), cert. denied, 531 U.S. 911 (2000)); see Skillern v. State, 890 S.W.2d 849, 882 (Tex.

App.—Austin 1994, pet. ref’d) (“In view of appellant’s plea of “true,” the State was not required

to offer the judgment of the prior conviction into evidence, although it was free to offer some or

all of its evidence concerning the enhancement allegations.”), abrogated on other grounds by Ex

parte Pue, 552 S.W.3d 226, 231-32 (Tex. Crim. App. 2018). For the reasons set forth in our

discussion of Macias’s first issue about the effect of his stipulation to the enhancement

allegations, we conclude that Macias judicially admitted the truth of both enhancement

paragraphs and thus, that the district court did not err by instructing the jury to find them true.

See Flowers, 220 S.W.3d at 921-22 (noting that defendant’s prior conviction may be proved by

defendant’s admission or stipulation); Bryant, 187 S.W.3d at 400 (concluding that defendant’s

stipulation to prior convictions constituted judicial admission that removed need for proof of

those convictions).

               We overrule Macias’s third issue.




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                                       CONCLUSION

              We affirm the district court’s judgment of conviction.


                                            __________________________________________
                                            Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Triana and Smith

Affirmed

Filed: April 29, 2020

Do Not Publish




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