Pamela Diana Wilburn AKA Susan Broussard v. State

Opinion issued July 3, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00830-CR __________ PAMELA DIANA WILBURN A/K/A SUSAN BROUSSARD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 692000 MEMORANDUM OPINION Appellant, Pamela Diana Wilburn, also known as Susan Broussard, pleaded guilty to the felony offense of theft. (1) After appellant signed a judicial confession stating that she had a prior felony theft conviction, the trial court assessed her punishment at confinement for 20 years and a $10,000 fine. In a single point of error, appellant contends that the "sentence imposed is illegal because it is outside the penalty range for the offense for which she was convicted." We modify the judgment of the trial court, and affirm as modified. Factual and Procedural Background On April 21, 1995, a Harris County grand jury issued a true bill of indictment against appellant, accusing her of committing the felony offense of theft. The State alleged that appellant, on November 19, 1993, had committed two thefts "pursuant to one scheme and continuing course of conduct and [that] the total value of the [stolen] property was over [$750] and under [$20,000]." (2) On May 2, 2007, the State filed a "Notice of Enhancement," which set forth three enhancement paragraphs, alleging that, before the commission of the charged offense, appellant had committed three separate felony theft offenses on June 28, 1983, November 20, 1984, and July 3, 1991. On June 27, 2007, appellant signed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" (the "judicial confession"), stating that she was entering her plea of guilty and waiving her right to trial by jury. Appellant acknowledged that it was alleged that she had committed thefts in November 1993 pursuant "to one scheme and continuing course of conduct" and that the total value of the property stolen was over $750 and under $20,000. Appellant further acknowledged that before the commission of the instant offense, she had been convicted of felony thefts on June 28, 1983, as alleged in the first enhancement paragraph in the State's Notice of Enhancement, and on November 20, 1984, as alleged in the second enhancement paragraph in the State's Notice of Enhancement. The judicial confession does not reference the third prior felony theft conviction as alleged in the third enhancement paragraph in the State's Notice of Enhancement. The judicial confession also contained a handwritten notation that the "State abandons [the] second and third paragraph[s] from 'State's Notice of Enhancement.'" Appellant further stated, I understand the above allegations and I confess that they are true and that the acts alleged above were acts committed on November 19, 1993. In open court I consent to the oral and written stipulation of evidence in this case and to the introduction of affidavits, written statements of witnesses, and other documentary evidence. I am satisfied that the attorney representing me today in the court has properly represented me and I have fully discussed this case with him. I intend to enter a plea of guilty without an agreed recommendation--PSI in exchange for the State's abandonment of the second and third paragraphs of "State's Notice of Enhancement" and I agree to that recommendation. (Emphasis added). Appellant signed the judicial confession. Also, on June 22, 2007, appellant signed a document entitled "Written Plea Admonishments." These admonishments provided, Pursuant to article 26.13 of the Code of Criminal Procedure, the Court admonishes you the Defendant in writing as follows. Place your initials by each item only if you fully understand it. . . . You are charged with the offense shown above, and you are subject to the following range of punishment: . . . SECOND DEGREE FELONY RANGE: a term of not more than 20 years or less than 2 years confinement in the Institutional Division of the Texas Department of Criminal Justice and, in addition, a possible fine not to exceed $10,000. Appellant initialed next to this punishment range for a second-degree felony. (3) On August 22, 2007, the trial court signed its judgment, in which it stated that appellant had been convicted of the third-degree felony offense of theft by check between $750 and $20,000 that had occurred in November 1993. It further stated that appellant had pleaded guilty to the charged offense, and in a section entitled "terms of plea bargain," the judgment stated "PSI Hearing-20 years TDCJ State abandons second and third enhancement paragraphs." The trial court sentenced appellant to 20 years confinement and a $10,000 fine, thus indicating that the trial court had found true the allegation concerning appellant's prior felony theft conviction. However, in the sections of the judgment where the trial court was to indicate appellant's "plea to the 1st enhancement paragraph," as well as its "finding to the 1st enhancement paragraph," the trial court marked "N/A." Sentence In a single point of error, appellant argues that the "sentence imposed is illegal because it is outside the penalty range for the offense for which she was convicted." Appellant asserts that "two of the three enhancement paragraphs were abandoned and neither a plea nor a finding was made on the remaining [first] enhancement paragraph." Appellant further asserts that there is no evidence that she was convicted of the prior felony theft offense and, thus, the maximum prison sentence that the trial court could have imposed was 10 years. The State responds that appellant entered a plea of guilty to the charged felony theft offense, enhanced by one prior felony conviction. The judicial confession signed by appellant establishes that she pleaded true to the allegation, as set forth in the first enhancement paragraph in the State's Notice of Enhancement, and that she had a prior felony conviction in 1983. The judicial confession specifically states that the State abandoned only the allegations set forth in the second and third enhancement paragraphs of the State's Notice of Enhancement. Also, the judicial confession omitted any reference to the State abandoning the allegation in the first enhancement paragraph of the State's Notice of Enhancement and repeated in the judicial confession. Once appellant provided a judicial confession that the allegation in the first enhancement paragraph was true, the State was relieved of its burden to prove the allegation "because a plea of 'true' constitutes 'evidence and sufficient proof to support the enhancement allegation.'" Ford v. State, 243 S.W.3d 112, 117 (Tex. App.--Houston [1st Dist.] 2007, pet. ref'd) (citing Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984)). Moreover, "[b]ecause the enhancement paragraph[] [was] proved, punishment at the enhanced level was mandatory." Harris v. State, No. 05-02-01728-CR, 2005 WL 639388, at *1 (Tex. App.--Dallas Mar. 21, 2005, pet. ref'd) (not designated for publication) (citing Wilson, 671 S.W.2d at 526). In regard to appellant's contention that the trial court did not make a finding concerning the allegation in the first enhancement paragraph, this Court has recently stated that, "[w]hen [a] trial court alone assesses a defendant's punishment, the court is not required to read the enhancement paragraphs or the findings to the defendant" and that, "[a]lthough it is preferred that trial courts read the enhancement paragraphs orally and find them to be true or not true on the record, a trial court does not err by not doing so." Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd) (citing Garner v. State, 858 S.W.2d 656, 659-60 (Tex. App.--Fort Worth 1993, pet. ref'd)). Here, appellant provided a judicial confession, admitting to both the instant offense of felony theft and her prior felony theft conviction in 1983. The trial court admonished appellant that she was subject to an enhanced punishment range that would have been invoked only upon a plea and finding of true on appellant's prior felony theft conviction, and appellant acknowledged that she had been admonished on this enhanced punishment range. The trial court, in accordance with its admonishments, then sentenced appellant to confinement for 20 years, which was a sentence available only upon a finding of true to the enhancement paragraph. Although the trial court did not make a written finding of true in its judgment as to the enhancement allegation, the record establishes that the trial court impliedly made such a finding. See Almand v. State, 536 S.W.2d 377, 379 (Tex. Crim. App. 1976) ("It is true that the court did not make an express finding as it should have as to the prior conviction, but it is obvious from what has been said that the court found from the undisputed evidence that there was a prior conviction and with the agreement of the parties assessed punishment as a second-degree felony."); see also Garner, 858 S.W.2d at 659-60 (noting that trial court had assessed defendant's punishment at 25 years and that maximum punishment that defendant could have received without finding on enhancements was 10 years); Harris, 2005 WL 639388, at *1 (holding that, even though trial court made no oral or written findings on two prior convictions, punishment imposed by trial court fell within enhanced range and trial court had implicitly found enhancement paragraphs to be true). Having concluded that appellant pleaded true to the allegation in the first enhancement paragraph, that appellant had previously been convicted of the felony offense of theft in 1983, and that the trial court impliedly found the allegation true, we hold that the sentence imposed by the trial court was not outside the penalty range for the offense for which appellant was convicted. We overrule appellant's sole issue. The State asks us to modify the judgment to reflect a finding of true as to the allegation in the first enhancement paragraph. See Tex. R. App. P. 43.2(b). Again, having concluded that appellant pleaded true to the allegation that she had previously been convicted of the felony offense of theft and that the trial court impliedly found the allegation true, we modify the trial court's judgment to reflect that appellant pleaded true to the allegation in the first enhancement paragraph and that the trial court found the allegation true. See Almand, 536 S.W.2d at 380; see also Harris, 2005 WL 639388, at *1 (holding that, because appellant pleaded true to the enhancement paragraphs and because trial court impliedly found enhancement paragraphs true, court of appeals had necessary evidence to modify trial court's judgment of "N/A" on enhancement paragraphs to findings of true on enhancement paragraphs); White v. State, No. 05-01-01620-CR, 2003 WL 22718787, at *1 (Tex. App.--Dallas Nov. 19, 2003, no pet.) (not designated for publication) (reforming trial court's "clearly incorrect" notations of "N/A" in regard to enhancement paragraphs to show pleas and findings of true to enhancement paragraphs); Sparks v. State, No. 06-02-00069-CR, 2003 WL 943105, at *2 (Tex. App.--Texarkana Mar. 10, 2003, no pet.) (not designated for publication) (reforming judgment to reflect enhancement of punishment after concluding that defendant had admitted to enhancement convictions by judicial confession and that defendant had been properly admonished as to range of punishment with enhancements). Conclusion We modify the judgment of the trial court to reflect appellant's plea of true and the trial court's finding of true as to the allegation in the first enhancement paragraph. As modified, we affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Taft, Jennings, and Hudson. (4) Do not publish. See Tex. R. App. P. 47.2(b). 1. See Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2007), § 31.09 (Vernon 2003). 2. Under the applicable penal code sections, a person who committed theft of property valued at $750 or more but less than $20,000 committed a third-degree felony and was subject to punishment by confinement for any term between 2 and 10 years and a fine not to exceed $10,000. See Act of May 23, 1991, 72nd Leg., R.S., ch. 565, § 1, 1991 Tex. Gen. Laws 2003, 2003 (amended 1993) (current version at Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2007)); Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.01, 1989 Tex. Gen. Laws 3471, 3491 (amended 1990) (current version at Tex. Penal Code Ann. § 12.34 (Vernon 2003)). However, if the person had a prior felony conviction, she was to "be punished for a second-degree felony," and, thus, was subject to punishment by confinement for any term between 2 and 20 years and a fine not to exceed $10,000. See Act of May 24, 1973, 63rd Leg., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 908 (amended 1993) (current version at Tex. Penal Code Ann. § 31.03); Act of May 28, 1973, 63rd Leg., R.S., ch. 426, art. 2, 1973 Tex. Gen. Laws 1122, 1125 (amended 1993) (current version at Tex. Penal Code Ann. § 12.33 (Vernon 2003)). 3. The admonishments also contained a section detailing the punishment range for a third-degree felony, but appellant did not initial this admonishment. Appellant also initialed an admonishment whereby she waived her right to have a court reporter record her proceedings. Thus, we have no reporter's record of the proceedings below. 4. The Honorable J. Harvey Hudson, retired Justice, Fourteenth Court of Appeals, participating by assignment.