COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS CL I NTON W. L EWI S, Appellant,

v.

THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00052- CR

Appea l from the 120th District Court of El Paso County , Texas (TC# 20080D03814)

O P I N I O N I n two issu es on appea l, Appellant alleg es that the trial court committed err or when sentenc ing him for ag g rava t ed assault with a deadly wea pon and by failing to g rant his amende d motion for new tria l. We affirm the tria l court’s judg ments as re formed. BACK GR OUND Appellant was char g ed by indict m en t wi th ag g ravated kidnapping (Count I ), ag g ravated sexual assault (Count I I ), and ag g ravated assault with a deadly wea pon (Count I I I ). On October 13, 2008, the State filed a “Notice of Enhanc ement” in which the State alleg ed that Appellant had two prior felony convictions which had become final and which it intended to u s e fo r t h e purpose of enhanc ing Appellant’s rang e of punishment to that of a first-de gre e fe l o n y . Pursuant to a plea ag ree ment, and in exchang e for dismiss al of the ag g ravated-s ex u al-a ssault char g e (Count I I ), Appellant pleade d g uilty in open court to the rema ining offe nses, Counts I and I I I , and was sentenc ed to twenty -five year s’ conf inement. Appellant ti mely filed a motion for new t rial and amende d motion for new t rial

. T h e t ri al court gra nted Appellant permission to appea l the l imited issue of an illeg al sentenc e related to hisconviction for ag g rava ted assault with a deadly wea pon (Count I I I ). The trial court did not g rant Appellant per

mission t o appea l any

other issues re lated to Count I or Count I I I

. DISCUSSIO N I n h i s fi rst issue, Appellant complains that the trial court imposed an illega l sentenc e in rela tion to his conviction for ag g ravated assault with a deadly wea pon (Count I I I ). Specifica lly , he alleg es that the trial court failed to find the enhanc ement true, and thus, he conclude s that he cannot be sentenc ed bey ond 20 y ear s. For support, Appellant points to the written judgme nt, which shows that he was convicted of the second- deg ree offe nse and that the plea and finding s as to the first enhanc ement par ag raph a re ma rked “ N/A,” r ather

than “Tr ue.” We disag ree . “A sentenc e that is outside the maxi mum or minimum rang e of punishment is unauthorized by law and there fore illega l.” Mizell v. State , 119 S.W .3d 804, 806 (Tex. Crim. App. 2003), citing Ex parte Pena , 71 S.W .3d 336, 336 n.2 (Tex. Crim. App. 2002) and Ex parte Seidel , 39 S.W .3d 221, 225 n.4 (Tex. Crim. App. 2001). Trial and appellate courts that otherwise have jurisdiction over a criminal convic tion have the a uthority to corre ct an illeg al sentenc e. Id

. The offe nse of ag g ravated assault with a deadly wea pon is a seco n d -degr ee felony , punishable by imprisonment for two to twenty y ear s, and a fine of up to $10,000. T E X . P E N A L C O D E AN N . § 12.33 (Ve rnon Supp. 2009); T E X . P E N A L C O D E A N N . § 2 2 .02(a) (2) (Ve rnon 2003). The punishment for a second- deg ree felony may be enhanc ed to the punishment of a first-deg ree felony if it is shown that the defe ndant has been previously convicted of a felony

. T E X . P E N A L C O D E AN N . § 12.42(b) (Ve rnon Supp. 2009). The punishment for a first-deg ree felony is imprisonment for five to ninety -nine y ear s or life, and a fine not to exceed $10,000. T E X . P E N A L C O D E A N N . § 12.32 (Ve rnon Supp. 2009). A defe ndant is entitled to notice of a prior conviction that the State intends t o u s e forenhanc ement. Brooks v. State , 957 S.W .2d 30, 33 (Tex. Crim. App. 1997). Proper notice informs

the defe ndant that the State is seeking a g reater penalty than it would seek without the enhanc ement and serve s to allow the defe ndant to show possible defe nses, such as a mistake in identity or that the prior convictions never beca me final. Hollins v. S t a t e , 5 7 1 S.W .2d 873, 876 (Tex. Crim. App. 1978). A prior conviction may be used to enhanc e punishment if it is plead in some form but it need not be pleade d in the indictment. Villescas v. State , 189 S.W .3d 290, 292 (Tex. Crim. App. 2006), citing Brooks v. State , 957 S.W .2d 30, 34 (Tex. Crim. App. 1997). When seeking to enhanc e punishment, it is t h e S t at e’s burden to show that the prior conviction was f

inal under the law and that Appellant was the person pr eviously convicted of

that offe nse. Ex pa rte Augusta , 639 S.W .2d 481, 484 (Tex. Crim. App. 1982); Harve y v. State , 611 S.W .2d 108, 111 (Tex. Crim. App. 1981). Howeve r, when a defe ndant pleads “true ” or “g uilty ” to the enhanc ement alleg ations, he remove s from the State its burden to prove what it alleg ed. Ex parte Sewell , 742 S.W .2d 393, 396 (Tex. C ri m . App. 1987); Harve y , 611 S.W .2d at 111; Dinn v. Stat e , 570 S.W .2d 910, 915 (Tex. Crim. App. 1978) (whe n a defe ndant pleads “true ” to the enhanc ement para g raph, the State’s burden of proof is satisfied as t h e p l ea o f “true” is sufficie nt proof)

. When enhanc ement para g raphs are proven, punishment at the enhanc ed level is mandatory

. See W ilson v. State , 671 S.W .2d 524, 525 (Tex. Crim. App. 1984). When the trial court alone a s s e s s e s a d e f e n dant’s punishment, the court is not require d to rea d the enhanc ement para g raphs or the finding s to the defe ndant. Garner v. State , 858 S.W .2d 656, 659 (Tex. App.–For

t Worth 1993, pet. ref

’d), citing Ree d v. State , 500 S.W .2d 497, 499 (Tex. Crim. App. 1973); Seek

er v. State , 186 S.W .3d 36, 39 (Tex. App.–Houston [1st Dist.] 2005, pet. ref ’d). When

a conflict exis ts betwee n the oral pronounce ment of a sentenc e and the sentenc e in a wri t t en judgme nt, the oral pronounce ment controls. Taylor v. State , 131 S.W .3d 497, 500 (Tex. Crim. App.2004). Her e, Appellant executed a written document titled, “Court’s Notice to Def endant of Rights, Writt en Admonishments, Waiver of Rights, J udicial Confession, and Plea Ag ree ment.” Wit hin that document, under

the hea ding, “ Rang e of Punishment,” is written: You are pleading g uilty t o the offe nse of Ag g ravated Kidnapping CT I PARAGRAPH B[,] Ag g ravated Assault with Dea dly Weapon CT I I I

. (1) This offe nse is a 1 DEGREE FEL ONY punishable as a 1 DE GR E E st s t FEL ONY by confine ment in the Texas Depa rtment of Criminal J ustice, Institut ional Division for a term of not mor e than 99/life y ear s or less than 5 y ear s and a fine not to exceed ten thousand dollar s ($10,000.00). Under the hea ding, “ Acknowle dg ment and Waivers,” is written: I , the Def endant in this case , do here by in ope n court plead g uilty to the offe nse set out in the indictment or information filed by the State in this cause , and plead true to any para g raphs a lleg ed for

enhanc ement of punishment. Under the hea ding, “ J udicial Confession,” is written: I , the undersig ned defe ndant in this case , do now here by , in open Court, admit all of the alleg ations in the indictment or information now pending in this cause including any all [si c] para g raphs alleg ed for the purpose of enhanc ing punishment, a n d confe ss that I committed the offe nse as char g ed in the indictment or information, as well as all l esser included offe nses arising out of the same criminal episode and admit the truth of any

and all par ag raphs a lleg ed for purposes of e nhancing

punishment. Eac h of these rec itations is followed by the statement, “I , the undersig ned defe ndant, acknow ledg e I have rea d this page an d u n d er s tand its content” and is there afte r signe d by Appellant. Also contained in the plea paper s, under the heading , “State’s Recommenda tion to the Court,” is written: “The State would rec ommend that the Def endant be sentenc ed to 25 y ear s TDC.” Du ri n g t h e plea proce eding s, the trial court showed Appellant the plea paper s. Appellant informed the trial court that he had rea d and understood the plea paper s, and that he had signe d his

n am e t o t h e p lea paper s. As reque sted by the trial court, the State rec ited the terms of the pleaag ree ment and st ated, “Your Honor, the pl ea ag ree ment -- in exchang e for a dismissal of Count I I and abandoning of Parag raph A in Count I -- is 25 y ear s to serve in the I nstitut ional Division of the Texas Depa

rtment of C riminal J ustice.” Appellant informed the t rial court that the S t ate’s rec ital of the plea ag ree ment ref

lected his understanding of the terms of the plea ag ree ment. The trial court

acc epted Appellant’s plea and sentenc ed him in open court to twe nty -five y ear s’ confine ment. No objections wer e made reg arding the leng th of the sentenc e. The fac ts of this case demonstrate that Appellant p le a d e d tr u e to th e e nh a

n c e me n t a ll e g ations. Alt houg h the trial court did not make a written or oral finding of “True ” to the enhanc ement para g raphs set forth in the State’s “Notice of E n h an ce m en t , ” the rec ord shows that the trial court impliedly made such a finding

. See Almand v. State , 536 S.W .2d 377, 379 (Tex. Crim. App. 1976) (“I t 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 evidenc e that there was a prior conviction and with the ag ree ment of the parties assessed punishment as a second deg ree felony .”); Garner , 858 S.W .2d at 659-60 (noting that trial court had assessed the defe ndant’s enhanc ed punishment at twenty -five y ear s and that the maxi mum punishm ent the def endant c ould have rec eived without enhanc ement was ten y ear s). Be cause Appellant pleade d true to the enhanc ement para g raphs, and bec ause the trial court impliedly found the e nhance ment alleg ations to be true, we find that the enhanc ed first-deg ree felony sentenc e imposed by the trial court was not outside the enhanc ed rang e of punishment for the second- deg ree felony conviction of ag g ravat ed assault with a deadly wea pon, did not constitute an illega l sentenc e, and was within the mandatory rang e of punishment. T E X . P E N A L C O D E AN N . § 12.42(b) (Ve rnon Supp. 2009); T E X . P E N A L C O D E AN N . § 12.33 (Ve rnon Supp. 2009); W ilson , 671 S.W .2d at 525. Appellant’s first issue is overr uled. I n his second issue, Appell ant complains that the trial court err ed by failing to g rant hismotion for new trial and that the trial court should have ref ormed his first-deg ree felony sentenc e for ag g rava ted kidnapping (Coun t I ) to a term of imprisonment within the rang e of punishment for a second- deg ree felony

. Appellant also complains that the judgme nts for Count I and Count I I I should be re formed to r efle ct that the sente nces a re to run c oncurr ently

. A defe ndant may reque st a new trial no later than thirty day s afte r the date on which the trial court imposes or suspends sentenc e in open court. T E X . R. A P P . P. 21.4(a)

. A defe ndant may also file one or more amende d motions for new trial with in the same thirty -day period for filing the orig inal motion for new trial, without leave of court, as long as the trial court has not overr uled any prec eding motion for new trial. T E X . R. A P P . P. 21.4( b). Restated, a trial court cannot consider an amende d motion for new trial that is filed more than 30 day s afte r a defe ndant’s sentenc e is imposed. Id. The defenda

nt m u s t p rese nt the m otion to the t rial court within 10 day s of fili ng it, unless the trial court, in its discretion, permits the m otion to be presented and hear d within 75 day s from the date when the court imposes or suspends sentenc e in ope n court. T E X . R. A P P . P. 21.6. I f the trial court does not r

ule by written order on the motion for new trial within 75 day s from the date when the court imposes or suspends sentenc e in ope n court, the motion is deeme d denied. T E X . R. A P P . P. 21.8(a), ( b), (c ). Appellant ti mely filed hi s orig inal motion for ne w t ri al. T E X . R. A P P . P. 21.4(a) , (b). The orig inal motion for new trial was deeme d denied afte r the trial court failed to rule upon it by written order within 75 day s afte r his sentenc e was imposed in open court. None o f t h e i s s u es raised by Appellant in his orig inal, timely -filed motion for new trial are prese nted for our consideration in this appea l. Appellant subseque ntly filed his amende d motion for new trial more than 30 day s after his sentenc e was imposed in open court. T E X . R. A P P . P. 21

. 4 (b ). T he record does not show that thetrial court g rante d Appellant leave to file the amende d motion for new trial bey ond the 30-day , postsentenc e period. I n his unverifie d, untimely -filed amende d motion for new t ri al, which was unsupported by aff

idavit, Appellant asser

ted that his first-deg ree felony sentenc e for his conviction of ag g ravated kidnapping was illega l beca use he had voluntarily rele ased the complainant in a safe place and contende d that he should have been sentenc ed wi t h i n the rang e of punishment for a second -d egree felony

. Appellant now attempts to raise these issues on appea l but they wer e not

asser ted in his tim ely -filed, or igina l motion for new trial. Section 20.04(d) of

the Texas Penal Code provides that, at t he punis hment stag e of trial, a defe ndant may raise the issue of whether he voluntarily rele ased the ag g ravated-kidnapping victim in a safe place

. T E X . P E N A L C O D E AN N . § 20.04(d) (Ve rnon 2003). I f a defe ndant proves the issue by a preponde ranc e of the evi d ence, the ag g ravated-kidnapping offe nse become s a felony of the second- deg ree , there by reduc in g t h e ra n ge of puni shment for the offe nse. Id

. I t is clea r from our revie w of the r ecor d that even if Appellant had r aised his “sa fe pla ce” asser tion in his tim ely -filed motion for new trial, the plea ag ree ment did not contemplate a reduc tion of sentenc e upon that basis and Appe llant did not prove the issue in the affirmative by a prepondera nce of the evidence at the punishment stag e of trial as required b y S ec tion 20.04(d). Id

. Under these fac ts, we find that Appellant did not timely

file his amende d motion for new tria l, that he did not have leave of c ourt to file h i s u n t imely , amende d motion for new t rial, and that the i ssues raised in his untimely -filed amende d motion for new trial canno t fo rm the basis for his issues on appea l. T E X . R. A P P . P. 21.4(b); W

ebb v. State , 109 S.W .3d 580, 581 (Tex. App.–For t Worth 2003, no pet.) (a

n untimely

fi l ed amende d motion for new trial cannot form the basis for points on appea l), citing Merc ier v. State , 96 S.W .3d 560, 562 (Tex. App.–For t Worth 2002, pet. stricken). I n any case , Appellant signe d a waiver of his rig ht to appea l. I n a plea- barg ain case wher ea plea of g uilty or nolo contende re was enter ed and the punishment did not e x cee d the punishment

rec ommended by the prosec utor and ag ree d to by the defe ndant, a defe ndant may appea l only those matters that wer e raised by written motion filed an d ru l ed o n b efor e trial or afte r g etting the trial court’s permission to appea l. T E X . R. A P P . P. 25.2(a) (2)( A) & (B ). Her e, the punishment did not exceed that r ecommende d by the prosec utor or ag ree d to by Appellant, the issues ra ised on appe al

wer e not raised in a written motion filed and ruled on by the trial court befor e trial, and the trial court did not g rant Appellant permission to appea l his con viction or sentenc e in rela tion to Count I , ag g rava ted kidnapping

. Consequently , we lack jurisdiction to consider Appellant’s second issue on appea l as it rela tes to his untimely -filed, amende d motion for new trial. Estrada v. State , 149 S.W .3d 280, 282, 285 (Tex. App.–Houston [1st Dist.] 2004, pet. ref ’d) (stating , “The simple fac t is that the denial of a motion for new tr ial, reg ardle ss of the g round or g rounds raised in the motion, is not appea lable in a plea- barg ained case without the trial court’s permission.” and noting that, in a pleabarg ained case , appea ls are limit ed by the Rules of Appellate Procedur e and no exceptions exis t for

a trial court’s ref

usal to g rant permission to appea l, for an adver se ruling on a motion for new trial,

or for the voluntariness of waiver s.); Turley v. State , 242 S.W .3d 178, 180 (Tex. App.–For t Worth 2007, no pet.) (whe re trial court d i d not g rant appellant permission to appea l its failure to hold a hear ing on appellant’ s motion for new trial, the ap p el l at e court dismiss ed the appea l without addre ssing the me rits). Appellant’s se cond issue is dismissed for lack of jurisdiction. REF ORMATION Finally , we ha

ve the authority to r efor

m a trial court’ s judgme nt to corre ct a c lerica l error

. T E X . R. A P P . P. 43.2(b); Bigley v. State , 865 S.W .2d 26, 27 (Tex. Crim. App. 1993). We also have the authority to modify

incorre ct judg ments where the evidenc e nec essar y to corr ect the judgme nt appea rs in the rec ord. Howell v. State , 563 S.W .2d 933, 936 (Tex. Crim. App. 1978). As we havethe ability to ref orm the judgme nt to corr ect a cler ical mistake, and beca use the evidenc e nece ssary to c orre ct the judgme nt a

ppear s in the rec ord, we ref orm the trial court’s judgme nt f or Count I I I to show that Appellant pleade d “True ” to the alleg ations in the first and second en h an ceme nt para g raphs, and that the trial court found the alleg ations in the first and second enhanc ement para g raphs to be “True .” See T E X . R. A P P . P. 43.2(b); Bigley , 865 S.W .2d at 27; Howell , 563 S.W .2d at 9 36; Almand , 536 S.W .2d at 380 (re forming judgme nt and sentenc e to ref lect enhance m en t o f punishment by v i rt u e of prior conviction). As the judgme nt for Count I suffe rs from the same fallac y , we further refor

m that judgme n t t o show that Appellant pleaded “True” to the allegations in the first and second enhanc ement para g raphs, and that the trial court found the alleg ations in the first and sec ond enhanc ement par ag raphs to be “ True.” Appellant also c omplains that the judgme nts for Counts I and I I Ido not show whether his sentenc es are to r

u n concur rently or consec utively and, instead, are marke d with the notation, “N/A.” Section 3.03(a) of the Texas Penal Code provides that when an acc used is found g uilty of more than

one offe nse arising out of the same crim i n al epis ode prosec uted in a single criminal action, a sentenc e for eac h offe nse for which he h as b ee n fo u nd g uilty shall be pronounce d and, except as provided by Section 3.03(b), the sentenc es shall run concur rently

. T E X . P E N A L C O D E AN N . § 3.03(a) (Ve rnon Sup p . 2 0 0 9 ). We ref orm the trial court’s judgme nts in Counts I and I I I to show that Appellant shall ser

ve those sente nces c oncurr ently

.

CONCLUSION The trial c ourt’s judg ments are aff irmed as r efor

med.

GUADA L UPE RI VERA, J ustice J une 16, 2010Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)