COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS ANTHO NY RAY PERRYMAN, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-10-00193- CR

Appea l from the 227th District Court of B exar County , Texas (TC# 2008-CR-4078)

O P I N I O N After a jury convicted Anthony Perry man, Appellant, of the state-jail felony offe nse of possession of a controlled substance in an amount of less than one g ram, the trial court, finding the all eg ed enhanc ements true, elevated the sentenc ing rang e to that of a second- deg ree felony and
sentenc ed Appellant to eleve n y ear s’ confine ment. The Four th Court of Appea ls, howeve r, reve rsed that punishment, finding that the enhanc ements used – o ne state-jail felony and one nonstate-jail felony – did not meet t he requisite number of nonstate-jail felonies to enhanc e Appellant’s punis h m ent to a second- deg ree felony

. See Perrym an v. State , No. 04-09-00209- CR, 2010 WL 1066440, at *1-2 (Tex. App. – San Antonio Marc h 24, 2010, no pet.) (mem. op., not desig nated for publication). Rather, the court conclude d that the enhanc ements only allowed the punishment rang e to be enhanc ed to that of a third-deg ree felony

. Id

. at *2. Acc ording ly , the court rema nded the case to the trial court for a new punishment hearing. Id

. Upon rema nd, the tr i al court sentenc ed Appellant to the maximum sentenc e for a third-de g ree felony , ten y ear s’ imprisonment. The case is now back before the appellate court. And i n three issues on appea l, Appellantcontends that the t rial court failed to hold a new punishment hearing, that the S tat e fa i l ed t o offe r

sufficie nt proof of the prior convictions, and that counsel wa s i n ef fe ct i ve. For the rea sons that follow, we a ffirm. BACK GR OUND As background, we note that the Four th Court of Appea ls’ opinion ref lects that Appellant’s indictment alleg ed two state-jail felonies for enhanc ement purposes. Perrym an , 2010 WL 1066440,
at *1. L ater , the State filed notice of intent to use another state jail-felony and a nonstate-jail felony for enhanc ement. Id

. After Appellant was convicted on the char g ed offe nse, he pled true to the two enhanc ement alleg ations contained in the orig inal indictment, and to the additional enhanc ement alleg ations noticed by

the State at the late r date

. Id

. At the new punishment hear ing, the prosec utor explained to the trial court that Appellant was improperly sentenc ed to a s ec o n d -d egre e felony at his first trial when the enhanc ements only supported an enhanc ement to a third-deg ree felony

. The prosec utor further noted that Appellant pled
true to the enhanc ements at the previous punishment hear ing. Appellant’s counsel, in response, noted that the prosec utor’s statements wer e corr ect, and when the trial court questioned whether they

wer e “he re f

or punishment on a third degree felony ,” Appe llant’s counsel stated, “ Absolutely .” The trial court then asked for the State’s rec ommendation, and the prosec utor responde d that “since [Appellant has] pled o n n o w [t o] three State J ails,” the State rec ommends that “the Court
sentenc e him betwee n two to ten, and [t he] State is g oing to ask for ten y ear s.” Appellant’s counsel, in return, asked for a five-year sentenc e. The trial court, howeve r, sentenc ed Appellant to ten y ear s. After Appellant’s c ounsel stated, “T hank you, J udg e,” the following then occ urre d: [Appellant] : Your Honor , can I speak to you? [C ourt]: Uh-huh.[Appellant] : Sir, like, when I ’m having this here , ri gh t, when I ’m having this appea l here , rig ht, don’t Ihave a chanc e for

a jury or any thing e lse? [C ourt]: Not any

more. [Appellant] : Huh? [C ourt]: Nope. [Appellant] : Ithought he said, like – [C ourt]: Have him sit over there so y ou can explain it to him. [ Ap p el l ant’s

counsel], explain this to him. He thinks he’s g etting entitled to a new jury trial. Court was then a djourned. DISCUSSIO N Appellant bring s three issues for our revie w. The first contends that the trial court failed to hold a full punishment hear ing on rema nd, faulting the court for not re -r eading the enhanc ement alleg ations and taking his ple as to the same. The second a ssumes that if there was no plea of true, t h en the State failed to offe r sufficie nt proof of the prior convictions. And the thir d ch al l en ges counsel’s e ffe ctiveness. We find no mer it in any of the issues ra ised. Failure to Read Enhance ments and Take Appe llant’s Pleas In I ssue One, Appellant contends that he was denied due proce ss and due course of law when the trial court failed to hold a new t ri al o n punishment. Specifica lly , Appellant asser ts reve rsible

err or when the trial court failed to rea d the enhanc ement alleg ations and take his pleas during the second punishment hear ing. The State responds th at Appellant waived any proce dural err or by failingto object. Almost ever

y rig ht, constitutional and statutory , may be waived by failing to obje ct. Smith

v. State , 721 S.W .2d 844, 855 (Tex. Crim. App. 1986); Powell v. State , 252 S.W .3d 742, 744 (Tex.App. – Houston [14t h Di s t.] 2008, no pet.). Thus, to prese rve a complaint for appellate review, a

party must have objected to the trial court, stating the specific g rounds for the ruling desired. T E X . R. A P P . P. 33.1(a)

. Acc ording ly , sever al courts have held that a party cannot complain for the first time on appea l that the failure to rea d the enhanc ement alleg ations and to take the defe ndant’s plea
to such alleg ations is reve rsible err or. See Marshall v. State , 185 S.W .3d 899, 903 (Tex. Crim. App. 2006) (stating that a defe ndant must object when he has “notice that the proce eding s may have g one amiss,” and explaining that he has such notice when he lear ns that the State is seeking a highe r penalty despite the enhanc ement alleg ations not being rea d to the jury ); W arren v. State , 693 S.W .2d 414, 416 (Tex. Crim. App. 1985) (explaining that any err or in failing to rea d and plead to enhanc ement alleg at io n s is s ubject to prese rvation); Lee v. State , 239 S.W .3d 873, 876-77 (Tex. App.

– Waco 2007, pet. ref

’d) (holding that the defe ndant failed to prese rve err or by not raising the err or in the trial court when the indictment was not rea d to the jury and the defe ndant did not enter a plea) ; Burley v. State , Nos. 14-09-00868- CR & 14-09-00869- CR, 2010 WL 5238583, at *2 (Tex. App.

– Houston [14t h Dist.] Dec

. 16, 2010, no pet.) (mem. op., not desig nated for publication) (“A ppellant argues for the first time on appea l that the failure to rea d the enhanc ement alleg ations to the jury and to take his plea on the alleg ations is rever sible err or. By failing to r aise this issue in the trial court, appellant has not prese rved err or for our revie w.”) ; Pope v. State , No. 05-02-01745- CR, 2004 WL 1173202, at *6 (Tex. App. – Dallas May 27, 2 0 0 4 , p et
. ref ’d) (op. on reh’ g , not desig nated for publication) (“Appellant did not prese rve error at t rial by objectingto the failure to enter a plea to the enhanceme nt. . . . There fore , we c onclude a ppellant has not pre serve d any issue for appeal on this point .”). Her e, Appellant did not object at the new punishment hear ing that the trial court should have

rea d the enhanc ement alleg ations and asked for his pleas to the same. Rather, he joined in with theprosec utor in repr esenting that the parties wer e there for sentenc ing on a third-deg ree felony and that

Appellant previously pled t ru e t o t h e enhanc ement alleg ations. The trial court then sentenc ed Appellant without any objection that it did not rea d the enhanc ement alleg ations or take Appellant’s pleas to the same. There fore , beca use Appellant did not object to this proce dural err or, we hold the

err or, if any , is not prese rved for our revie w. See Burley , 2010 WL 5238583, at *2; Pope , 2004 WL 1173202, at *6. In any case , we find that the trial court did not err by failing to read the enhanc ement alleg ations or to take Appellant’s plea. The rea ding of enhanc ement alleg ations and the entry of the defe ndant’s plea there to are mandatory , and there fore , no issue is joined betwee n the State and the defe ndant with respe ct to the defe ndant’s prior criminal rec ord if this is not done

. Turner v

. State , 897 S.W .2d 786, 788 (Tex. Crim. App. 1995); W arren , 693 S.W .2d at 415. Howeve r, when it is the trial court alone that assesses punishment, there is no require ment that the enhanc ement alleg ations be rea d or that the trial court even take the defe ndant’s plea. Seeke r v. St a t e , 186 S.W .3d 36, 39 (Tex. App. – Houston [1st Dist.] 2005, pet. ref ’d); Garner v. State , 858 S.W .2d 656, 659 (Tex. App.

– For t Worth 1993, pet. ref

’d). “Although i t i s p ref err ed that trial courts rea d the enhanc ement para g raphs orally and find them to be true or not true on the rec ord, a trial court does not err by not doing so.” Seek

er , 186 S.W .3d at 39; Garner , 858 S

. W

. 2 d at 660. Acc ording ly , based on these authorities, we hold that the trial court did not err by failing to rea d the enhanc ement alleg ations and to take Appe llant’s plea to the same duringthe new punishment he aring . I ssue One is ove rruled. Sufficient Proof of Prior

Convictions In I ssue Two, Appellant, noting that the trial court d i d n ot take his plea of true to the enhanc ement alleg ations, asser ts that absent hi s plea of true, there was no proof of the prior convictions. Thus, he conclude s that the court could not assess an enhanc ed sentenc e. We disag ree .A defe ndant’s plea of “true ” to an enhanc ement para g raph will satisfy the State’s burden of

proof for enhanc ement alleg ations. W ilson v. State , 671 S.W .2d 524, 526 (Tex. Crim. App. 1984). Be cause a plea of “true ” is sufficie nt, the fac t that the defe ndant en t ered a plea of “true ” must be aff irmatively ref

lected by evidenc e in the re co rd

. S ee i d

. Such may be shown by a rec ital in the judgme nt. See Breazeale v. Sta t e , 683 S.W .2d 446, 450 (Tex. Crim. App. 1985) (op. on reh’ g ) (conc luding that althoug h rec ord did not include document showing formal waiver of trial by jury , appellants did not overc ome presumption of truth of rec ital in judgme nt that they did waive rig ht to jury ). He re, the judgme nt refle cted that Appellant pled true to the enhanc ements; thus, the State’s burden of proof for the enhanc ement alleg ations was satisfied. W ilson , 671 S.W .2d at 526. Moreove r, we must p re s u me that a defe ndant was arr aig ned and pled to the char g ing instrument “unless such matters wer e made an issue in the court below, or otherwise aff irmatively appea rs to the contra

ry from the rec ord.” W

arren , 693 S.W .2d at 416. Certainly , that was not made

an issue below, but rathe r counsel joined in repr esenting to the court that Appellant previously pled
true to the enhanc ement alleg ations and that the parties wer e simply there on sentenc ing. Nor does the contra ry appea r in the re cord a s the prosecutor represe nted t hat Appellant previously pled true and the judgme nt ref

lects that Appellant p l ed true. There fore , Appellant has not overc ome the presumption that he failed to plead true, much less that the State’s proof of the prior convictions was insufficient. I ssue Two is over ruled. Ineffec tive Assistance of Counsel Appellant’s third issue alleg es that counsel was ineffe ctive for failing to ensure that the trial
court conducte d a full rese ntencing hear ing or otherwise protec t his rig ht to a jury upon rese ntencing

. Specifica lly , Appellant contends that on rema nd, he reg ained the rig ht to choose to be sentenc ed by

a jury , and that his c ounsel was unawa re the he had that rig ht and did nothing to pr otect that rig ht.Thus, Appellant conc ludes that he is entitled to a new punishment hearing

. Claims of ineffe ctive assistance of co u n s el are revie wed under the standard set forth in Strickland v. W

ashi n g t o n , 4 6 6 U.S. 668, 104 S.Ct

. 2052, 80 L .Ed.2d 674 (1984). That standard requ i re s the defendant to prove (1) t hat hi s trial counsel’s perfor mance was deficient, and (2) that such defic ient perf

ormanc e was so serious that it de prived the def endant of a fa ir trial. Id

. at 687. I n o ther words, the defe ndant must prove, by a preponde ranc e of the evidenc e, that co u n s el ’s repr esentation fell below the objec tive standard of preva iling profe ssional nor ms, and that there is

a rea sonable probability that, but f or counsel’s defic iency , the result of the proce eding would have been dif fer ent. Id . at 690-94. Of course , our revie w of defe nse counsel’s perf ormanc e is highly defe rential, beg inning with the strong presumption that the attorney ’s actions wer e rea sonably profe ssional and wer e motivated by sound trial strateg y . Jack son v. State , 877 S.W .2d 768, 771 (Tex. Crim. App. 1994) (en banc)

. Thus, when the rec ord is silent as t o co u nsel’s strateg y , we will not conclude that counsel’s assistance was ineffe ctive unless the ch al l eng ed conduct was “‘so outrag eous that no competent attorney would have e ng ag ed in it.’” Goodspee d v. Stat e , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001)). Her e, the rec ord ref

lects that Appellant’s claim of ineffe ctive assistance is not firmly founded in the rec ord. Although the trial court asked counsel to explain to Appellant whether he was entitled
to a jury trial on punishment afte r sentenc ing, counsel’s explanation was not on the rec ord. We do
not know what co u n s el s aid t o Appellant, whether counsel knew of or i nformed Appellant of any rig hts to a jury trial on reman d , o r whether counsel advised Appellant that he could chang e his elec tion. Nor do we know if counsel advised Appellant on the matters befor e the hear ing. Indeed,

n o record was develope d at all for our revie w conce rning counsel’s knowledg e of the law or hisadvice to Appellant. All the rec ord shows is that Appellant elec ted in his first trial to have the court

assess punishment and did not claim otherwise in the hear ing on rema nd until afte r sentenc ing. Advising that punishment be assessed by a judge rathe r than a jury may be strateg ic, but we cannot tell if that was counsel’s strategy in this case . In short, the rec ord is simply too underde veloped for

us to conclude that counsel’s perf ormanc e was defic ient in this reg ard. See Bone v. State , 77 S.W .3d 828, 833-34 (Tex. Crim. App. 2002). Acc ording ly , we decline to find counsel ineffe ctive based on the limited recor d here and over rule I ssue Thre e. CONCLUSION Havingoverr

uled Appellant’ s issues, we af firm the trial c ourt’s judg ment.

GUADA LUPE RI VERA, J ustice Aug ust 31, 2011 Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)