David Canales v. State

Opinion issued June 7, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-00641-CR __________ DAVID CANALES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1056361 MEMORANDUM OPINION After appellant, David Canales, pleaded no contest to the offense of aggravated sexual assault of a child (1) and true to the allegation in one enhancement paragraph that he had been previously convicted of a felony, the trial court found appellant guilty of aggravated sexual assault of a child and assessed his punishment at confinement for fifteen years. In his sole issue, appellant contends that his "case must be remanded for a new punishment hearing [because] the judgment reflects a finding of true but the trial court never found the enhancement allegation of the indictment to be true." We affirm. Factual and Procedural Background A Harris County Grand Jury issued a true bill of indictment, accusing appellant of the offense of aggravated sexual assault of a child as a habitual offender with two enhancement allegations. At an initial hearing on March 21, 2006, the trial court granted the State's motion to abandon the second enhancement paragraph. Appellant then pleaded no contest to the offense and also pleaded true to the allegation in the remaining enhancement paragraph that he had a prior felony conviction. The trial court admonished appellant that "upon a finding of guilty and true," the enhancement punishment range would be confinement for not less than fifteen years and no more than ninety-nine years or life as well as a fine not to exceed $10,000. (2) At the conclusion of the hearing, the trial court found that there was evidence to substantiate appellant's guilt, but deferred "further finding" and recessed the case for purposes of conducting a pre-sentence investigation. On June 15, 2006, at a subsequent hearing, the trial court stated on the record that it found appellant guilty of the offense of aggravated sexual assault of a child and assessed his punishment at fifteen years confinement. Although the trial court did not make any oral finding during the hearing regarding the enhancement allegation, the trial court, on the same date of the hearing, signed a judgment stating that appellant pleaded true to the allegation in the first enhancement paragraph and that the trial court found the allegation to be true. Enhancement Allegation In his sole issue, appellant argues that his "case must be remanded for a new punishment hearing [because] the judgment reflects a finding of true but the trial court never found the enhancement allegation of the indictment to be true." Appellant asserts that the trial court "apparently sentenced [him] according to an enhanced punishment range without ever making any finding that the prior conviction that was alleged for enhancement was true." "When the trial court alone assesses a defendant's punishment, the court is not required to read [] the enhancement paragraphs or the findings to the defendant." Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd). Although it is the better practice for trial courts to orally read the enhancement allegations and find them to be true or not true on the record, a trial court does not necessarily err by failing to do so. See id.; Garner v. State, 858 S.W.2d 656, 659 (Tex. App.--Fort Worth 1993, pet. ref'd); see also Meineke v. State, 171 S.W.3d 551, 557 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd) (stating that trial court's failure to announce enhancement findings prior to sentencing is "not error so long as it appears from the record that the court found the enhancements 'true' and entered the sentence accordingly"). In support of his argument, appellant relies on Turk v. State, 867 S.W.2d 883 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). In Turk, the defendant pleaded not true to the first enhancement allegation and a plea of true to the second enhancement allegation. Id. at 887. After the defendant entered his pleas, the trial court did not receive further evidence regarding the enhancement allegations because the sheriff's deputy was not present to testify, and the court delayed the hearing because the defendant requested a presentence investigation report. Id. In a subsequent hearing, a different judge continued the sentencing proceedings, assuming that the enhancement allegations had been properly presented. Id. The State did not attempt to correct his assumption. Id. Although the written judgment in Turk contained findings of true on the enhancement allegations, the trial judge testified during a special hearing that he, in fact, had not found the enhancement allegations to be true. Id. at 887-88. Thus, even though the sentence assessed was within the statutory range, we remanded the case for a new punishment hearing on the basis that we could not assume that the trial court automatically would assess the same sentence. Id. at 888. We did not hold in Turk that a finding of true of an enhancement allegation in a judgment is insufficient or that, in circumstances like those presented in this case, a finding of true must be made orally on the record. Here, appellant pleaded true to the enhancement allegation that he had a prior felony conviction, and the trial court, which assessed appellant's punishment, admonished appellant on the applicable enhanced punishment range. In its written judgment, the trial court found the allegation to be true, and the trial court assessed punishment within the applicable range. See Garner, 858 S.W.2d at 659-60 (noting that without finding on enhancement allegations, maximum punishment trial court could have assessed would have been less than amount actually enhanced). Accordingly, we hold that the trial court did not err in not orally pronouncing its finding of true of the enhancement allegation. Consequently, we need not remand for a new punishment hearing. We overrule appellant's sole issue. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Taft, Jennings, and Alcala. Do not publish. Tex. R. App. P. 47.2(b). 1. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2006). 2. There is no indication in the record that the trial court separately admonished appellant regarding the non-enhanced penalty range.