                                    NO. 07-05-0126-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                FEBRUARY 15, 2006
                          ______________________________

                           RITA RENEE BURAL, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                   NO. 14444-0205; HONORABLE ED SELF, JUDGE
                        _______________________________


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


                                MEMORANDUM OPINION


       Appellant, Rita Renee Bural, appeals her sentence of five years confinement in the

Institutional Division of the Texas Department of Criminal Justice for the offense of Delivery

of a Controlled Substance in an amount less than one gram. We affirm the judgment as

modified.
                                        Background


       In August 2002, appellant pled guilty to the offense of Delivery of a Controlled

Substance in an amount less than one gram. As part of the plea proceedings, appellant

signed a “Stipulation of Evidence” which included an admission of all the elements of the

offense. Included in the stipulation was an admission to the enhancement paragraph that

the offense was committed within 1,000 feet of a playground. Further, appellant signed

an “Admonition of Rights,” and was informed that the punishment range was that of a third

degree felony. The trial court found that the evidence substantiated appellant’s guilt but

deferred further proceedings and placed appellant on community supervision for five years.


       Subsequently, the State filed a Motion to Proceed with Adjudication, and later an

Amended Motion to Proceed with Adjudication, contending that appellant had violated

conditions of her community supervision. The trial court held a hearing on the State’s

amended motion in March of 2005. Prior to the hearing, appellant once again signed a

“Stipulation of Evidence,” this time consenting to the introduction of written affidavits,

written statements, and other documentary evidence. Also contained in this stipulation,

appellant admitted being “the same person named in the Judgment of Conviction (sic) in

the above entitled and numbered cause; and that [she] was placed on Probation in the

above entitled and number cause on August 19, 2002 . . . .” After hearing evidence and

finding that appellant had violated her community supervision the trial court decided to

proceed with adjudication stating that “based upon [her] prior plea of guilty and the

evidence presented, [the trial court found her] guilty of the crime charged in the indictment.”

At the punishment stage of the proceeding, the State “reurged the evidence from the

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adjudication portion of the trial” and rested. The trial court assessed punishment at five

years confinement in the Institutional Division of the Texas Department of Criminal Justice.


          By three issues, appellant contends that (1) the evidence presented during the

punishment phase was insufficient to support a finding that the offense occurred within

1,000 feet of a playground; (2) the trial court erred in assessing punishment as a third

degree felony without evidence of the offense being committed within a drug free zone;

and (3) the trial court erred in assessing punishment as a third degree felony without

making an affirmative finding that the offense was committed in a drug free zone. We

affirm.


                       Issue One and Two: Sufficiency of the Evidence


          When reviewing the legal sufficiency of the evidence, we view all the evidence in the

light most favorable to the verdict to see whether any rational fact-finder could find the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Moreno v. State, 755 S.W.2d 866, 867

(Tex.Crim.App. 1988). During the original plea proceeding in 2002, the trial court accepted

appellant’s signed and sworn stipulation of evidence which included appellant’s admission

that the offense occurred within 1,000 feet of a playground.1 Since appellant admitted to

committing the offense in a drug free zone, the trial court admonished appellant as to the


          1
        Under Texas Health and Safety Code section 481.134(b), the allegation of the
commission of the delivery of a controlled substance within 1,000 feet of a playground is
not an element of the offense, but an enhancement provision. See generally Young v.
State, 14 S.W.3d 748, 750-53 (Tex.Crim.App. 2000). Thus the offense remains classified
as a state jail felony. Id.

                                                3
punishment range of a third degree felony.2 TEX . CODE CRIM . PROC . ANN . art. 26.13(a)(1)

(Vernon Supp. 2005). Although the trial court deferred further proceeding and placed

appellant on community supervision, once the trial court decided to proceed to adjudication

and made a determination of guilt, all proceedings including assessment of punishment

were to proceed as if the adjudication had not been deferred. TEX . CODE CRIM . PROC . ANN .

art. 42.12 § 5(b) (Vernon Supp. 2005). Further, once defendant pled guilty to the offense,

the proceedings became unitary, Carroll v. State, 975 S.W.2d 630, 631 (Tex.Crim.App.

1998), and a trial court’s decision in a unitary trial does not become fixed until it renders

judgment and punishment after all the evidence and argument has been heard. See

Barfield v. State, 63 S.W.3d 446, 450, 451 n.18 (Tex.Crim.App. 2001). We conclude that

appellant’s plea of guilty to the offense and enhancement paragraph provided the trial court

sufficient evidence to support a finding of all the facts alleged in the indictment, including

the facts contained in the enhancement paragraph. See Fairfield v. State, 610 S.W.2d

771, 780 (Tex.Crim.App. 1981). The fact that the stipulation was admitted during the

“adjudication phase” does not prohibit the court’s consideration of the stipulation for

punishment purposes.3 TEX . R. EVID . 201(b)(2); See Turner v. State, 733 S.W.2d 218, 221

(Tex.Crim.App.1987) (court can take judicial notice of its own records).           Therefore,

appellant’s stipulation of evidence is sufficient to establish that the offense occurred within

1,000 feet of a playground.    Appellant’s first issue is overruled.


       2
        The State presented the enhancement paragraph within the indictment. See
Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997).
       3
        We would also note that because of the impression that the trial was “bifurcated,”
the State did “reurge the evidence from the adjudication portion of the trial,” and thus
presented the evidence, without objection, during the “punishment phase.”

                                              4
       In our review of a trial judge's determination of the appropriate punishment in any

given case, a great deal of discretion is allowed the sentencing judge. Jackson v. State,

680 S.W.2d 809, 814 (Tex.Crim.App. 1984). A sentence within the proper range of

punishment will not be disturbed on appeal if there was at least some evidence or facts

available to the court upon which it could have relied in assessing punishment. See id.

In the present case, the trial court had received appellant’s stipulation as well as testimony

about a previous motion to adjudicate in which appellant, after a hearing on that motion,

was continued on community supervision with modified conditions. Having concluded that

there was sufficient evidence that the offense occurred within 1,000 feet of a playground

as addressed in the first issue, the court had at least some evidence or facts available

upon which the court could have relied in assessing punishment. We conclude that the

trial court did not err in sentencing appellant within the punishment range of a third degree

felony. See TEX . HEALTH & SAFETY CODE ANN . § 481.134(b) (Vernon Supp. 2005). We

overrule appellant’s second issue.


                              Issue three: Affirmative finding


       By appellant’s final issue, she contends that the trial court erred in assessing her

sentence as if it were a third degree felony because the trial court never made an

affirmative finding that the offense was committed in a drug free zone. In this case, the

court did make an affirmative finding when it ruled that appellant was “guilty of the crime

charged in the indictment.” See Ex parte Beck, 769 S.W.2d 525, 528 (Tex.Crim.App.

1989). Further evidence that the trial court intended, and that appellant understood that

the court was making such a finding include: (1) the indictment alleged the commission of

                                              5
the offense within a drug free zone, (2) appellant’s stipulation admitted that the offense was

committed in a drug free zone, (3) written admonishments stating a third degree

punishment range, (4) the order deferring adjudication listed the offense as a third degree

felony, and (5) the order adjudicating appellant guilty of the offense listed the offense as

a third degree felony. We conclude that the trial court made an affirmative finding, and

therefore, did not err in assessing appellant’s sentence as a third degree felony. We

overrule appellant’s third issue.


                                         Conclusion


       As an appellate court, we have the authority to reform a judgment to make the

record speak the truth when the matter has been called to its attention by any source.

TEX . R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992). In

this case, it is clear that the State was proceeding under Texas Heath & Safety Code

section 481.134(b), and that appellant was indicted for a state jail felony enhanced to a

third degree felony punishment. However, the judgment reflects that appellant was

convicted of a third degree felony. 4 Accordingly, we modify the trial court's judgment to find

appellant guilty of the offense of delivery of a controlled substance, penalty group 1, in an

amount less than one gram, a state jail felony. We further modify the trial court’s judgment

to include an affirmative finding that the offense was committed within a drug free zone as



       4
         The only alleged drug free zone was a playground. In order for the offense to
actually become a third degree felony, the drug free zone alleged would have been 1,000
feet of real property owned, rented, or leased to a school, school board, or the premises
of a public or private youth center, or on a school bus. See TEX . HEALTH & SAFETY CODE
ANN . § 481.134(d) (Vernon Supp. 2005); See also Young, 14 S.W.3d at 748.

                                              6
described in Texas Health & Safety Code section 481.134(b), making the offense

punishable as a third degree felony.


      We affirm the judgment, as modified.




                                       Mackey K. Hancock
                                           Justice




Do not publish.




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