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V.the State (RR9-16-28), the jury found Bridges guilty of aggravated assault with a deadly weapon as charged in the indictment (CR-73 and RR9-34-35]. Thereafter, an agreement was reached regarding punishment. RR9- 36&37. Bridges stipulated, in writing and in open court, that he had twice previously been convicted of a felony, the second felony having been committed after the first conviction had become final. CR-81 and RR9-52-54. He plead true to the allegation oftwo prior felony convictions as identified in his stipulation (RR9-55&56), and the court below sentenced him to confinement in the Texas Department of Criminal Justice

- Institutional Division for aterm of 32 years (CR-82&83, CR-85&86, and RR9-57&58).
SUMMARY OF THE ARGUMENT Bridges entered into a punishment agreement with the State. Prior to 

### entering into that agreement, voir dire by the State suggested that Bridges
was being tried as an habitual offender. Priorto entering into that agreement, Bridges was directly admonished by both the court below and by his defense counsel that he might have been subjected to a punishment range of 25 years 

### to 99 years, or life, if he proceeded to a contested punishment hearing. Yet Bridges was notbeingtried as an habitual offender.



### ?.ARGUMENT 1. The court below erred in accepting the punishment agreement entered into by Bridges with the State, as neitherthe indictment (CR-4&5) nor the State's notice ofintentto enhance (CR-54&55) alleged that Bridges was an 

# habitualoffender.^-V^sw^Vo sy. 3i& &\ W,W 2. The punishment agreement entered into by Bridges with the State was neither knowing nor voluntary, as Bridges was erroneously advised as to the range ofpunishmentto which he mighthave been subjected. 3. Bridges received ineffective assistance ofcounsel in entering into the punishmentagreementwith the State. Bridges was charged with, and tried for, the offense of aggravated assaultwith a deadly weapon. CR-4&5 and RR8-10. Aggravated assaultwith a deadly weapon is a second degree felony. Texas Penal Code § 22.02(a)(2) and (b). The punishment range for a second degree felony is confinemant in the Texas Department of Criminal Justice for any term of not less than 2 years, 

### and not more than 20, plus an optional fine not to exceed $10,000. Texas Penal Code § 12.33. However, by its notice of intent to enhance, the State alleged six prior felony convictions for purposes ofenhancement. CR-54&55. The punishment range for a second degree felony enhanced by one prior felony conviction is 

### that of a first degree felony, confinementin the Texas Department of Criminal Justice for any term of not less than 5 years, and not more than 99 years, or

### life, plus an optional fine notto exceed $10,000. Texas Penal Code § 12.42(b) and §12.32. With the apparent intent to punish Bridges as an habitual offender, the 

### State alleged six prior felony convictions. CR-54&55. Texas Penal Code § 12.42(d) provides, in relevantpart, as follows: ... if it is shown on the trial of a felony offense
... that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction 

### having become final, on conviction the defendant shall be 

### punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. ... 

### To punish a defendant as an habitual felony offender, the State is thus 

### required to allege and prove both two or more prior felony convictions, and that one of those was for an offense committed after an earlier felony conviction had become final. 

### In order to invoke the provisions of § 12.42(d), it is necessary that each 

### succeeding conviction be subsequent both in point oftime ofthe commission ofthe offense and the conviction therefore. Seals v.State, 604 S.W.2d 899, 906 

### (Tex.App.-SanAntonio 1982, nopet.). In order to invoke the provisions of the habitual felonystatute, it isnecessaryto show thateach succeeding conviction 

### alleged for enhancement was subsequent both in point of time of the 

## 7.commission ofthe offense and the conviction therefor. McCarter v. State, 527 S.W.2d 296, 298 (Tex.Crim.App. 1975). Although the State's notice ofintent to enhance alleged six prior felony convictions, it did not allege that any was for an offense committed after any of the remaining five had become final. Nevertheless, the assumption 

### throughout Bridges' trial appears to have been that he was subject to punishment as an habitual offender were he to be convicted, and were the State to prove two ormore ofthe priorconvictions alleged. See RR7-118&119

- voir dire by the State, RR9-40 - admonishment of Bridges by the court below, and RR9-40 - admonishment ofBridges by defense counsel. 

### The stipulation ofevidence (CR-81) signed by Bridges did listtwo prior felony convictions, the second for an offense committed after the first had become final. Butthat the second was for an offense committed after the first 

### had become final was not alleged in either the indictment or in the State's
notice ofintent to enhance. 

### Bridges was erroneously advised as to the range of punishment to 

### which he might have been subjected. During voir dire, the State asked the following: If there was a law or there was a way that this case could be 

### enhanced and the punishment for the same offense was 25 to 99, 

### could anybody - could everybody follow that range ofpunishment, if that's the law? Anybody on the first row got a problem with a minimum of 25 years and a maximum of life, or 99? RR7-118&119. There was no objection by defense counsel. Priorto accepting the punishmentagreement, the courtbelow admonished Bridges as follows: And you realize that by doing this, that the full range of punishment comes open and it can vary? Obviously, ifyou have enhancement paragraphs, it can be 25 to 99, or life, ifyou don't have some agreement. RR9-40. There was no objection by defense counsel, who himselfadmonished Bridges as follows: But for the agreement
- whatthe Judge is saying, butfor our 

### agreement, the range ofpunishmentwas 25 to 99, orlife. 

### RR9-40. Finally,the written plea admonishments, signed by Bridges, defense counsel, the State, and the court below, identified Bridges as an habitual 

### offender, subject to confinement for life, or for any term ofnot more than 99 years orless than 25. CR-79&80. 

### Bridges can only have relied on what he had been told. Immediately after being erroneously admonished by the court below and defense counsel, occurred the following: The Defendant: Okay. Mr. Dennison: Doyou understandthat?
The Defendant: Yeah. 

## 9*The Court: Okay. Mr. Dennison: Andthatwas the reason we reached this agreement. The Defendant: Oh,okay. Allright. Yes.
RR9-40. In fact, Bridges could not have been punished as an habitual offender. Had he proceeded to a contested punishment phase of trial, he could have been punished as a second degree felony offender, as a first degree felony offender pursuant to Texas Penal Code § 12.42(b), or, arguably, as a first 

### degree felony offenderwith a prior felony conviction, pursuantto Texas Penal Code § 12.42(c)(1), depending on thejury's findings regarding the allegations ofsix priorfelony convictions. Ifthe trial courtproperly admonished the defendantbefore a guilty plea


### was entered, there is a prima facie showing the plea was both knowing and 

### voluntary. Houston v. State, 201 S.W.3d 212, 217 (Tex.App.-Houston [14th Dist] 2006, no pet). There is no such showing with regard to the punishment 

### agreemententered into by Bridges - the courtbelow erroneously advised him as to the range ofpunishmentto which he mighthave been subjected. A defendant in a criminal case has a constitutional right to the 

### reasonably effectiveassistance of counsel. Lopez v. State, 96 S.W.3d 406, 416 

### (Tex.App.-Austin 2002, pet.refd). This right does not meanerrorless counsel, 10 9or counsel whose competency is judged by hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.Crim.App. 1983). But the performance of Bridges' defense counsel with respectto the punishmentrange to which Bridges might have been subjected fell below an objective standard of reasonableness. Defense counsel failed to object to voir dire by the State suggesting that the punishment range might be 25 years to 99 years, or life. RR7-118&119. Defense counsel failed to object when the court below admonished Bridges that the punishment range might be "25 to 99, or life". RR9-40. Defense counsel himself erroneously admonished Bridges that "the range of punishmentwas 25 to 99, or life." RR9-40. Defense counsel failed to objectto 

### the written plea admonishments identifying Bridges as an habitual offender, 

### subject to confinement for life, or for any term ofnot more than 99 years or less than 25. CR-79&80. 

### If a guilty plea is entered upon the advice of counsel, that counsel must be competent and render effective assistance. To prove his claim of ineffective assistance, the defendant must show that counsel's representation 

### fell below an objective standard of reasonableness, and that there is a 

### reasonable probability that, but for counsel's defective performance, he would not have plead guilty, and would have insisted upon going to trial. Pena v. State, 132 S.W.3d 663, 668-669 (Tex.App.-Corpus Christi 2004, no pet).

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«i,Affirmed and Memorandum Opinionfiled October 15, 2015.

In the 

### iFourtssntfj Court ofAppeals

NO. 14-14-00682-CR TROYLEE BRIDGES, Appellant
V. THE STATE OF TEXAS, Appellee On Appealfrom the 344th Judicial District Court Chambers County, Texas Trial Court Cause No. 17438
MEMORANDUM OPINION 

### A jury convicted appellant Troy Lee Bridges ofaggravated assault with a 

### deadly weapon. See Tex. Penal Code §22.02(a)(2) (West 2013). The State and 

### appellantreached an agreementonpunishment. Thetrial court sentenced appellant to 32 years' confinement pursuant to that agreement. Appellant challenges his sentence inthree issues. First, he argues that the trialcourt erred in accepting the 

### punishment agreement due to lack ofnotice. Next, he claims that he did notvoluntarily enter into the punishment agreement. Finally, appellant asserts that he received ineffective assistance of counsel with regard to the punishment agreement. We affirm. I. Factual and Procedural Background 

### Appellant was indicted for aggravated assault. The indictment alleged that, on or about August 12, 2013, appellant assaulted the complainant by placing a firearm to her head and threatening her. Following the jury's guilty verdict, 

### appellant changed his election from jury punishment to trial court punishment. The State andappellant reached an agreement as to punishment. Pursuant to that 

### agreement, the trial court found the appellant had twice before been convicted of felony offenses and then assessed punishment atconfinement for 32 years inthe Institutional Division of the Texas Department of Criminal Justice. Appellant timely appealed.
II. Analysis 

### Appellant raises three issues on appeal. Appellant complains that: (1) the trial court should not have accepted the punishment agreement due to lack of 

### notice that appellant was being tried as ahabitual offender; (2) appellant did not voluntarily enter into the punishment agreement with the state because he was erroneously advised regarding the range ofpunishment; and (3) appellant received ineffective assistance ofcounsel with regard to the punishment agreement. i

A. Waiver 

### We first considerthe State'sargumentthatappellant has waived his rightto 1After his counsel filed a brief on his behalf, appellant also filed apro se instrument 

### styled, "Nunc Pro Tunc-Supplemental Brief," raising additional issues. We do notaddress these issues becauseappellanthas norighttohybridrepresentation. SeeMarshallv. State, 210 S.W.3d 618, 620n.l (Tex. Crim. App. 2006).appeal his sentence. The Court ofCriminal Appeals has made it clear that a defendant may waive his right to appeal when he has agreed to a sentence following a jury trial. Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000). In Blanco, the prosecution and appellant agreed that appellant would not appeal his conviction in exchange for the prosecution's promise to recommend the trial court assess a particular sentence. Id. at 219. That is, there was evidence in the record that the defendant had agreed to waive his right to appeal. 

### In reviewing the record before us, we cannot say that appellant waived his 

### right to appeal his sentence. The trial court's certification ofdefendant's right to 

### appeal on its face certifies thatthe "case isjurytrial (sic) andthe defendanthas the right to appeal." While perhaps not dispositive ofthe waiver issue, we note that the certification contains no limitation as to appellant's right to appeal. Further, the record contains an instrument styled, "Defendant's Election as to Punishment." In this instrument, appellant waived his right to jury punishment and moved the trial court to sentence him instead. The election contains the 

### following language: "This election as to punishment does not affect Defendant's right of appeal." This also does not indicate that appellant waived his right to appeal his sentence. 

### There are additional stipulations in the record—specifically, appellant's 

### stipulations as tothe evidence ofhis 1982 felony conviction for attempted robbery andhis 1991 felony conviction for assault with a deadly weapon. None ofthese 

### stipulations contains an express waiver ofthe right to appeal the sentence in this

matter. 

### Finally, the record indicates the trial court specificallytold appellant inopencourt that his change in election to punishment by the court would not affect his right to appeal. Given the state ofthe record before us, we cannot conclude that a waiver occurred. Having rejected waiver, we next consider appellant's issues. B. Notice ofintent to try appellant as habitual offender Appellant claims a lack of notice that the State sought to enhance his punishment as ahabitual offender. In particular, appellant argues that the State did not allege that any conviction was for an offense committed after the conviction for the previous offense had become final. See Act ofJune 17, 2011, 82nd Leg. R.S., ch. 1119, 2011 Tex. Gen. Laws 2881 (amended 2015) (current version at Tex. 

### Penal Code § 12.42(d)).2 When the State seeks to enhance a defendant's punishment with evidence of a prior conviction, "[t]he accused is entitled to a description ofthe judgment of former conviction that will enable him to find the record and make preparation for a trial on the question ofwhether he is the named convict therein." Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006). "[Pjrior convictions used as enhancements must be pled in some form, but they need not be pled in the indictment." Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997). In
2Section 12.42, Penalties for Repeat and Habitual Felony Offenders on Trial for First, Second, or ThirdDegree Felony, in effect as of appellant's alleged commission of the primary offense, provides: (d)Except asprovided bySubsection (c)(2) or(c)(4), if it isshown on the trial of a felony offense other than a statejail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequenttothe first previous conviction having become final, onconviction he shall bepunished byimprisonment in theTexas Department ofCriminal Justice for life, or for any term of not more than 99 years or less than 25 years. Act of June 17, 2011, 82nd Leg. R.S., ch. 1119, 2011 Tex. Gen. Laws 2881 (amended 2015). Aggravated assaultwith adeadly weapon is ordinarily asecond-degree felony. Tex. Penal Code § 22.02(b).Garza v. State, we held that the State's notice ofintention to use prior convictions and extraneous offenses, which notice identified the particular burglary enhancement ultimately used for enhancement by cause number, county of the convicting court, district court number, and conviction date, "provided appellant with adequate notice that his sentence could be enhanced by the burglary conviction." 383 S.W.3d 673, 676 (Tex. App.—Houston [14th Dist] 2012, no 

### pet.). The appellant in Garza did not request a continuance to investigate or prepare a possible defense, and did not argue on appeal any possible basis for challenging the State's evidence of the prior conviction. Id. at 676-77. We concluded that there was no error. Id. at 677; see Hedrick v. State, —S.W.3d—, No. 14-14-00378-CR, 2015 WL 4774365, at *6 (Tex. App.—Houston [14th Dist.] Aug. 13, 2015, no. pet. h.) (applying Garza). In the case before us, the State, provided appellant with two separate 

### documents providing notice—the first notice invoking rules 404 and 609 ofthe Texas Rules of Evidence, and articles 37.07 and 38.37 of the Texas Code of Criminal Procedure, and the second notice invoking section 12.42 ofthe Texas Penal Code3—of its intent to introduce evidence of appellant's other crimes, 

### wrongs, and acts, which includedthe 1982 felony conviction for attemptedrobbery and the 1991 felony conviction for assault with a firearm. The notices identified both convictions by cause number, state, county of the convicting court, and conviction date. The first notice further identified both convictions by their year of 

### commission andsentence date. Appellant signed a stipulation ofevidence wherein 

### headmitted tohaving theprior convictions for attempted robbery and assault with afirearm. Moreover, within this stipulation, appellantjudiciallyconfessed that he committed and was convicted of the second offense (the 1991 assault with a 3 The second notice was styled, "State's Notice of Intent to Enhance Range of Punishment."firearm) prior to the commission ofthe primary offense and after final conviction ofthe first offense (the 1982 attempted robbery). Appellant pleaded true to the enhancement convictions in open court, including that the 1991 assault with a firearm occurred prior to the commission ofthe primary offense and after his final conviction in the 1982 attempted robbery. At no time did appellant object to the enhancement convictions or request additional time to challenge them. Nor does 

### appellant argue on appeal any basis to challenge his stipulations to those enhancement convictions. Under these circumstances, we hold there was no trial court error. See Hedrick, —S.W.3d—, 2015 WL 4774365, at *6; Garza, 383 S.W.3d at 677. We overrule appellant's first issue. C. Voluntariness ofthe punishment agreement 

### Appellant next claims that he did notknowingly orvoluntarily enterinto the 

### punishment agreementas hewas incorrectly advised as to therange ofpunishment. We disagree. 

### Appellant was convicted of the offense ofaggravated assault with a deadly 

### weapon. See Tex. Penal Code §22.02(a)(2). Ordinarily, this is a second-degree felony. See id. §22.02(b). As discussed above, appellant had two prior felony convictions to qualify him as a habitual felony offender as contemplated under section 12.42(d). SeeAct of June 17,2011, 82nd Leg. R.S., ch. 1119, 2011 Tex. 

### Gen. Laws 2881 (amended 2015). This then made the applicable range of 

### punishmentnot less than 25 years normore than 99 years orlife inthe institutional division of the Texas Department of Criminal Justice Institutional Division. See 

### id. Therefore, appellantwas properly advised as tothe range ofpunishmentforthe primary offense, inlightof his priorfelony convictions.The record demonstrates the trial court went to great lengths to make sure that appellant understood the punishment proceedings in their entirety. The trial court admonished appellant about the range ofpunishment, the agreed sentence, and his stipulation of evidence. The trial court noted multiple times that the agreement needed to be made freely and voluntarily before the court would approve. The court also expressly asked appellant five times whether he was acting freely and voluntarily with regard to his sentence plea and the stipulations. Each time, appellant answered yes. At no time during the proceedings did 

### appellant indicate that he did not freely, voluntarily, or knowingly enter into the punishment agreement. We overrule appellant's second issue. D. Ineffective assistance oftrial counsel in entering the punishment agreement 

### Finally, appellant asserts that histrial counsel was ineffective withregard to entering into thepunishment agreement. This argument ispredicated on thetheory 

### that appellant was not subject to being punished as a habitual felony offender. However, as discussed above, appellant was properly subject to being punished as a habitual offender with a range of punishmentof25 to 99 years, or life. SeeAct 

### of June 17,2011, 82nd Leg. R.S., ch. 1119, 2011 Tex. Gen. Laws 2881 (amended 

### 2015). Therefore, appellant has failed to show trial counsel rendered a deficient 

### performance, much less one that prejudiced appellant. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We overrule appellant's third issue.III. Conclusion Having overruled all of appellant's issues, we affirm the trial court's judgment.

/s/ Marc W. Brown Justice

Panel consists ofJustices Boyce, Busby, and Brown. Do Not Publish

— Tex. R. App. P. 47.2(b).