NO. 07-09-0309-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL B JULY 19, 2010

__________________ ____________ KIM RENAY PROVENCE, Appellant

v. THE STATE OF TEXAS, Appellee

__________________ _______________ FROM THE 320TH DISTRICT COURT OF POTTER COUNTY; NO. 59,414-D; HON. DON EMERSON, PRESIDING

__________________ _____________ Memorandum Opinion

__________________ _____________ Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ Kim Renay Provence (appellant) appeals her conviction for driving while intoxicated. Punishment for the offens e was enhanced to that of a second degree felony due to her prior conviction of a felony . Through a single is sue, she now contends that the punishment levied exceeds the ma ximum allowed by law. We disagree. The State indicted appellant for driving while intoxicated. Included in the indictment was an allegation that she t wice had been convicted of the like crimes2 before. This allegation resu lted in the categoriz ation of the offense as a third degree felony. And, because she had also been convicted previously of a felony, i.e. injury to a child, the State sought to enhance her punishment. Thus, it filed a “N otice of Intent to Seek Enhanced Penalty” and alleged therein the aforementioned fel ony conviction. At trial, appellant entered an open plea of guilty to t he crime for which she was indicted. She also signed written plea ad monishments and acknow ledged therein that she was susceptible to being sentenced to im prisonment for not less than two years or more than twenty and levied a fi ne of up to $10,000. Thereafte r, the trial court orally admonished her as follows: [t]hat Written Plea Admonishment Agreem ent correctly stated that if you are found guilty of this offense and the State is able to show that you have previously been convicted of a fe lony offense, t here would be an enhancement in your possible punishm ent from the no rmal third degree felony of two years -- not less than tw o years nor more t han ten years -- to and a $10,000 fine, to a range of not less than two years nor more than 20 years and the same $10,000 fine.
When asked whether she understood that, appellant said, “[y]es , sir.” Thereafter, she stipulated, through counsel, to the admission of eleven trial exhibits. Those exhibits represented final convictions for crimes she pr eviously committed. Of those eleven, five were for driving while intoxicated (which in cluded the two averred in the indictment). One was for the felony offense described in the “Notice of Intent to Seek Enhanced Penalty.” Appellant also ad mitted, while on the witness stand, to having been convicted of injuring a child. Ultimately, the trial court accepted t he plea and found appellant guilty of driving while intoxicated. In doing so, it stated that it would “further find that the stipulations are correct and you previously have been convicted of numerous felony offenses all set out3 in the State’s exhibit.” Following this wa s the judge’s statement that “I’ll assess your punishment at 16 years confinement . . . .” Its written judgment reflected the same sixteen-year sentence. So too did the document reflect t hat the offense for which she was convicted was “DWI-3rd OR MORE” and that the offense was a “3rd Degree Felony.” It did not indicate that t he punishment was enhanced, however, and therein lies the heart of the complaint. Because of the written omission and since she “never pled true to the [prior felony] conviction, ” appellant allegedly co uld not be assessed punishment greater than that applicable to an unenhanced felony of the third degree, i.e. not less than two years nor more than ten. See T EX

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. §12.34 (Vernon Supp. 2009) (specifyi ng the range of punishment normally applicable to a felony of the third degree as no less than two nor more than te n years imprisonment plus a fine of up to $10,000). Missing from appellant’s contention, however , is citation to any authority holding that once the State di sclosed its intent to enhance her punishment, she was required to plead to the accuracy of the c onviction mentioned in the “N otice of Intent to Seek Enhanced Penalty.” This may be so bec ause there is no requirement that the enhancement paragraphs be read to the accused or that he plead to same during the penalty phase of a bifurcated trial when punishment is tri ed to the court. Reed v. State , 500 S.W.2d 497, 499-500 (T ex. Crim. App. 1973); Osei v. State , No. 05-04-0389-CR, 2005 Tex. App. L EXIS 3101, *8 (Tex. App.

– Dallas April 22, 2005, pet. dism’d) (not designated for publication); Nolan v. State, 624 S.W.2d 721, 724 (Tex. App.

– Amarillo 1981, no pet.). 1

1 We further note that appellant k new of the State’s effort to en hance her punishment via the use of a prior felony conviction as evinced by her resp onse to the trial court’s admonishment regarding the4 Regarding the matter of the judgment describing the o ffense as a third degree felony, appellant again fails to cite us to authority holding that when punishment is enhanced, the classification of a felony (as opposed to the range of punishment) changes. To know whether such authority exists would have been interesting. Nonetheless, statute specifies that when one is being tried for a third degree felony and the State proves the accu sed “has been once before c onvicted of a felony, on conviction he shall be punished for a second-degree felony.” T EX

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. §12.42(a)(3) (Vernon Supp. 2009). Whether this means that the offense is actually reclassified as a felony of the second degr ee or remains one of the third degree but is simply punished as a second degree felony is debatable. Reso lving that debate is unimportant here, though. We so conclude because the trial court said nothing about the type of felony for which appellant was fo und guilty. Instead, it orally pronounced her guilty of driving while intoxica ted, found “that the stipulations are co rrect,” found her to have “previously . . . been convicted of numer ous felony offenses . . .,” and assessed punishment at sixteen years imprisonment. This was done after admonishing appellant of the enhanced punishment range, receiving appellant’s representation that she understood that punishment coul d be enhanced, accept ing appellant’s plea of guilty to the charged offense, and hearing appellant admit to having been convicted of the felony relied upon by the State for enhancement pur poses. Thus, the sentence applicable to the third degree felony char ged in the indictment, as enhanced by the finding that appellant committed at least one prior felony , fell within the range authorized by §12.42(a)(3). See T EX

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. §12.33(a) (Vernon Supp. 2009) (prescribing
range of punishment. So too did she admit to having previously been convicted of felonious injury to a child, the very conviction being used to enhance her puni shment. Her having admitted to the validity of the conviction, it can hardly be said that she di d not plead to its authenticity or accuracy.5 the range of punishment for a second degree felony as not less than two or more than twenty years imprisonment). And, the sentence ora lly pronounced supersedes any contradictory recital contai ned in the written judgment. Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte Madding , 70 S.W.3d 131, 135 (Tex. Crim. App. 2002); Coffey v. State , 979 S.W.3d 326, 328 (Tex. Crim. App. 1998). In sum, we overrule appell ant’s issue. Yet, to avoid any confusion that may arise from the wording of the judgment, we modify it to reflect that the offense for which she was convicted was a third degree felony with punishment lawfully enhanced per §12.42(a)(3) of the Texas Penal Code.

Brian Quinn Chief Justice

Do not publish.