Warren Frank v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-02-180 CR NO. 09-02-181 CR ____________________ WARREN ALPHONCE FRANK, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 84459 and 84385 OPINION A grand jury indicted Warren Alphonce Frank in Cause No. 84459 for delivery of a controlled substance, cocaine, in an amount of at least one gram or more, but less than four grams. The indictment included paragraphs that alleged Frank had twice previously been finally convicted of a felony offense. The grand jury indicted Warren Alphonce Frank in Cause No. 84385 for possession of a controlled substance, cocaine, in an amount of at least four grams or more, but less than two hundred grams. That indictment also included paragraphs that alleged Frank had twice previously been finally convicted of a felony offense. Frank entered non-negotiated guilty pleas to the court in both cases, and was sentenced as a repeat offender (1) to concurrent twenty year terms of confinement in the Texas Department of Criminal Justice, Institutional Division. The two issues raised on appeal contend that the evidence is legally and factually insufficient to support the allegations in the enhancement paragraphs. Both indictments included the following paragraph: AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do further present in and to said Court, at said term, that before the commission of the primary offense, the Defendant was finally convicted of the felony of Possession of a Controlled Substance on October 7, 1996, in Cause No. 67076, in the 252nd District Court of Jefferson County, Texas, . . . . Frank argues that he did not plead "true" to the enhancement paragraph. This argument is not supported by the record. After the defendant waived reading of the indictment, the trial court took Frank's pleas, as follows: THE COURT: Mr. Frank, in Cause Number 84385, the indictment in that case alleges that on May 1st of 2001 in this county you intentionally and knowingly possessed a controlled substance; that being cocaine, which had a weight of between 4 grams and 200 grams. The indictment also alleges that you were previously convicted on October 7th, 1996 in this county for the offense of possession of a controlled substance. It is alleged that after that had become final and before the commission of this offense, you were finally convicted of possession of a controlled substance on February the 14th, 2000 in this county. And do you plead guilty or not guilty to that Mr. Frank? THE DEFENDANT: Guilty. THE COURT: In Cause Number 84459, the indictment alleges that on May the 1st of 2001 in this county you intentionally and knowingly delivered by actual transfer to David McDaniel; cocaine, in an amount of between 1 and 4 grams. It also alleges those same two previous felony convictions in exactly the same order. And do you plead guilty or not guilty to that? THE DEFENDANT: Guilty. Frank signed judicial confessions that stated, "I have read the charging instrument and my attorney has explained it to me and I committed each and every element alleged." He responded affirmatively when asked by the court, "And in each case did you actually do everything that I've told you they charged you with?" As a trial to the court, these were unitary, rather than bifurcated, proceedings. The pre-sentence investigation report was prepared and presented to the court at the sentencing hearing. The pre-sentence investigation report includes the following entry in Frank's criminal history: Date of Offense Offense Disposition 04-29-94 Possession of a Controlled Substance 06-12-95; Eight (8) Years Probation, $1000.00 Fine 10-07-96; REVOKED, Five (5) Years TDCJ-ID 10-17-97; Paroled During the hearing, defense counsel admitted, "If the Court would note Mr. Frank has previously received probation and was revoked and received 5 years in the Institutional Division." "[A]n accused, having entered a plea of 'true' to an enhancement paragraph of the indictment, cannot be heard to complain that the evidence is insufficient to support same." Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981). The practice of pleading "true" or "untrue" to that part of the indictment that affects the punishment range originates from the bifurcated hearing in a jury trial. See Davis v. State, 429 S.W.2d 895, 896 (Tex. Crim. App. 1968); Tex. Code Crim. Proc. Ann. art. 37.07, § 1(a) (Vernon 1981) ("The verdict in every criminal action must be general. When there are special pleas on which a jury is to find they must say in their verdict that the allegations in such pleas are true or untrue."). Nevertheless, a plea of "guilty" to an enhancement paragraph functions as the typical plea of "true." Tindel v. State, 830 S.W.2d 135 (Tex. Crim. App. 1992). The judge used an indefinite word, "that," in taking the defendant's pleas, but he had just paraphrased both the primary offense and the enhancement paragraphs. The trial court thus solicited a single response to both the primary offenses and the enhancement allegations. By responding "guilty," Frank entered a plea not only to the allegations on the primary offenses, but also to the allegations regarding prior convictions. Although the usual procedure calls for soliciting separate responses to the primary offense and the prior convictions, these were unitary proceedings, not bifurcated ones; no one objected to the manner in which the pleas were taken; and the defense acknowledged the prior conviction. Frank's "guilty" pleas included a plea sufficient to establish the truth of the enhancement allegations without additional evidence from the State. Issues one and two are overruled. The judgments are affirmed. AFFIRMED. PER CURIAM Submitted on October 4, 2002 Opinion Delivered October 16, 2002 Do Not Publish Before Walker, C.J., Burgess and Gaultney, JJ. 1. The second alleged prior offense was a state jail felony.