In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-16-00044-CR

JAMIE LEE BLEDSOE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st District Court

Harrison County, Texas

Trial Court No. 12-0374X

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Moseley
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M E M O R A N D U M O P I N I O N

In a case previously appealed, a jury had found Jamie Lee Bledsoe guilty of burglary of a 

building (a state jail felony) enhanced to a second degree felony range of punishment by two prior 

felony convictions.1 However, instead of enhancing the punishment range, the judgment of 

conviction showed that Bledsoe was convicted of a second degree felony, and he was sentenced 

to twenty years’ confinement. On appeal, this Court modified the judgment to reflect the actual 

situation: that Bledsoe had been convicted of a state jail felony, with the punishment enhanced to 

the level of a second degree felony. Bledsoe v. State, 480 S.W.3d 638, 639 (Tex. App.—Texarkana

2015, pet. ref’d). In that opinion, we pointed out that “[d]espite the increase in the severity of the 

penalties which result, statutes enhancing punishment ranges for the primary offense do ‘not 

increase the severity level or grade of the primary offense.’” Id. at 639 n.5 (quoting Ford v. State, 

334 S.W.3d 230, 234 (Tex. Crim. App. 2011)); see also Ex parte Reinke, 370 S.W.3d 387, 389 

(Tex. Crim. App. 2012). The trial court conducted a new punishment hearing on remand and, in 

the judgment of conviction, once again recited that Bledsoe had been convicted of a second degree 

felony, but sentenced him this time to confinement for eight years. 

On appeal, Bledsoe argues that (1) the judgment should be modified to reflect a conviction 

for a state jail felony and not a second degree felony, (2) the State violated his right to a jury trial 

on punishment, and (3) the State’s use of different felony enhancement convictions constituted 

double jeopardy. 

 

1TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(1) (West 2011) (burglary of a building), § 12.42(a) (West Supp. 2016) 

(punishment for a state jail felony can be enhanced if prior offenses are proven).
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We modify the judgment to reflect a conviction for a state jail felony and affirm the 

judgment, as modified. 

I. We Modify the Judgment to Reflect a Conviction for a State Jail Felony

In his first point of error, Bledsoe argues that the judgment should be modified because it 

erroneously states that he was convicted of a second degree felony. The State concurs with this 

point. 

Bledsoe was convicted of burglary of a building, a state jail felony. See TEX. PENAL CODE

ANN. § 30.02(c)(1). However, as previously stated, the judgment of conviction incorrectly lists 

the degree of offense as a second degree felony. Under Section 12.425 of the Texas Penal Code, 

Bledsoe’s punishment range was enhanced due to two prior felony convictions, but statutes 

enhancing punishment ranges for the primary offense do not increase or alter the grade of the 

primary offense. Ford v. State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011). The Texas Rules 

of Appellate Procedure give this Court authority to modify judgments and correct typographical 

errors to make the record speak the truth. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 

609 (Tex. Crim. App. 1992); Land v. State, 291 S.W.3d 23, 31 (Tex. App.—Texarkana 2009, pet. 

ref’d). We, therefore, modify the judgment to reflect the correct degree of the offense as a state 

jail felony.

II. The State Did Not Violate Bledsoe’s Right to Trial by Jury

In his second point of error, Bledsoe contends that his right to have a jury trial on 

punishment was violated. 
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The Texas Code of Criminal Procedure provides, in accord with both the Federal and the 

State Constitutions, that a defendant has the right of trial by jury. TEX. CODE CRIM. PROC. ANN.

art. 1.12 (West 2005). As to waiving one’s right to trial by jury, Article 1.13(a) provides:

The defendant in a criminal prosecution for any offense other than a capital felony 

case in which the state notifies the court and the defendant that it will seek the death 

penalty shall have the right, upon entering a plea, to waive the right of trial by jury, 

conditioned, however, that, except as provided by Article 27.19, the waiver must 

be made in person by the defendant in writing in open court with the consent and 

approval of the court, and the attorney representing the state. The consent and 

approval by the court shall be entered of record on the minutes of the court, and the 

consent and approval of the attorney representing the state shall be in writing, 

signed by that attorney, and filed in the papers of the cause before the defendant 

enters the defendant’s plea.

TEX.CODE CRIM. PROC. ANN. art. 1.13(a) (West Supp. 2016). Bledsoe argues that Article 1.13(a)’s 

requirement that a waiver must be signed and made in person is equally applicable to the 

punishment phase of the trial; he thus maintains that his rights were violated because there is no 

such waiver in the record. 

In this case, after remand for a new trial on punishment, a jury was empaneled and qualified 

by the court, excuses for exemptions from jury service were entertained, and a recess was taken. 

At that time, neither party had commenced to conduct voir dire. Although the record is not clear 

as to the disposition of the jury at that point, when the court reconvened, the jury panel did not 

return to the courtroom, and the case proceeded to a punishment hearing to the bench, with the 

trial court finding the State’s enhancement allegations to be true and sentencing Bledsoe to eight 

years’ confinement. The record contains no written waiver of Bledsoe’s right to have his 

punishment determined by a jury. 
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It is well-settled law that a defendant’s constitutional right to a trial by jury does not include

the right to have a jury assess punishment. Martin v. State, 753 S.W.2d 384, 389 (Tex. Crim. App. 

1988); Bullard v. State, 548 S.W.2d 13 (Tex. Crim. App. 1977), superseded by statute on other 

grounds; Medina v. State, 770 S.W.2d 54, 55 (Tex. App.—Texarkana 1989, no pet.). Accordingly, 

Bledsoe’s argument that his constitutional rights are implicated in this instance is without merit. 

In Texas, having a jury determine punishment is a statutory right. Martin, 753 S.W.2d at 388–89. 

In order to avoid forfeiture of the statutory right, a defendant must complain at trial or in a motion 

for new trial. TEX. R. APP. P. 33.1(a)(1); see Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. 

App. 2001) (defendant must object to preserve argument that his right to separate punishment 

hearing was violated). In the case now before us, even though it appears that Bledsoe had initially 

elected to have the jury assess his punishment, the trial court (not a jury) ultimately heard the 

evidence and assessed punishment. Because no objection was raised by either party at trial or 

through a motion for new trial, “it is presumed that the appellant agreed that the trial judge should 

assess the punishment”; therefore, this issue was not preserved for our review. Hackey v. State, 

500 S.W.2d 520, 521 (Tex. Crim. App. 1973).

Even had Bledsoe’s argument been preserved, well-established caselaw renders it 

ineffective. Here, Bledsoe argued that a separate signed and written waiver (such as required under 

Article 1.13(a) of the Texas Code of Criminal Procedure) must be on file for the punishment phase. 

However, the provisions of Article 1.13 only “pertain to the guilt-innocence phase of the trial . . . 

and these provisions have never been interpreted to apply to the punishment phase of a trial.” 

Martin, 753 S.W.2d 383; see Medina, 770 S.W.2d at 55. 
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III. Bledsoe Was Not in Danger of Double Jeopardy

In Bledsoe’s first trial, the State alleged prior convictions for burglary of a building and 

possession of a controlled substance to enhance Bledsoe’s available punishment range. On appeal, 

this Court modified the judgment and reversed the case for a new trial on punishment due to the 

erroneous use of a state jail felony for enhancement purposes. On remand, the State’s enhancement 

paragraphs alleged different felony convictions than those used in the first trial, namely, theft and 

escape. In his final point of error, Bledsoe argues that the State’s use of different enhancement 

felonies than those alleged in his prior trial on punishment constituted double jeopardy. 

The application of double jeopardy is an issue of law, and we review legal issues de novo. 

See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); In re Hunter, 256 S.W.3d 

900 (Tex. App.—Texarkana 2008, orig. proceeding).

A similar issue was addressed by the United States Supreme Court in Lockhart v. Nelson,

where, in a habeas corpus case, a federal district court held that a prior conviction offered by the 

State of Arkansas could not be used to support an enhancement allegation because the offense had 

been pardoned. Lockhart v. Nelson, 488 U.S. 33, 36 (1988). On remand, the state notified the 

defendant of its intention to resentence him as a habitual offender, using a conviction that was not 

offered or admitted during the prior sentencing hearing. Id. at 37. The Supreme Court held that 

the state’s subsequent use of a different conviction to prove habitual status did not constitute a 

double jeopardy violation. Id.at 41–42. 

The facts of this case are quite similar to those of Lockhart. Here, this Court remanded the 

case for a new trial on punishment because one of the alleged prior offenses could not be used for 
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enhancement purposes, and on remand, the State’s enhancement paragraphs alleged different prior 

offenses than those which had been previously alleged in the first trial. Based on the Supreme 

Court’s holding in Lockhart, we find that the State’s use of different enhancement convictions did 

not constitute a double jeopardy violation. Id. We overrule this point of error.

Accordingly, we modify the judgment of conviction to reflect that Bledsoe was convicted 

of the state jail felony of burglary of a building, but that the penalty for that offense is enhanced to 

the level of a second degree felony. We affirm the judgment of conviction, as modified. 

Bailey C. Moseley

Justice

Date Submitted: September 15, 2016

Date Decided: October 14, 2016

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