1 AFFIRMED and Opinion Filed April 29, 2020 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-00515-CR GILBERT LAMON CLEVELAND, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F18-51262-K MEMORANDUM OPINION Before Justices Myers, Par tida-Kipness, and Reichek Opinion by Justice Reichek A jury convicted Gilbert Lamon Cleveland of possession of a con trolled substance, i.e., cocaine, in an amount of one gram or more but less than four grams with intent to deliver. The trial court assessed punishment, e nhanced by two prior felony convictions, at twenty-five years in prison. In two issues, appellant contends the trial court erred by (1) instructing the jury that cocaine is a controlled substance and (2) failing to obtain pleas from him on the enhancement paragraphs. For reasons set out below, we o verrule both issues and affirm the trial court’s judgment.–2– Appellant has not challenged the sufficiency of the evidence to support his conviction; accordingly, we provide only a brief recitation of the facts. An undercover narcotics detective w ith the Dallas Police Departmen t received a tip that appellant was selling drugs out of a fast-food restaurant that he managed. The detective investigated and learned that appellant had an outsta nding warrant. The detective requested officers from the fugitive unit to make an arrest. One of the officers approached appellant outside of the restaurant, told h im he had a warrant for his arrest, and handcuffed him. As part of a search incident t o arrest, the officer found a bag in appellant’s front p ants pocket. The bag contain ed nine smaller bags that contained powder and rock c ocaine. The cocaine weighed 1. 1275 grams, including adulterants and dilutants. Jury Instruction In his first issue, appellant cont ends the trial court improper ly commented on the weight of the evidence by including an instruction in the j ury charge that “c]ocaine is a controlled substance.” Appellant did not object to the instruction and argues on appeal that its inclusi on in the charge was egregious error because it lessened the State’s burden of proof. We have previously rejected this argument. See Germany v. State , 1999 WL 72297, at *2 (Tex. App.—Dallas Fe b. 16, 1999, no pet.) (not des ignated for publication); Fletcher v. State , No. 05-92-01604, 1993 WL 532058, at *1 (Tex. App.—Dallas Dec. 21, 1993, no pet.) (per curiam) (not designate d for publication).–3– Whether a substance is a controlled substance is a question of law, not of fact.
Accord Black v. State , 491 S.W.2d 428, 431 (Tex. Crim. App. 1973), overruled on other grounds by Faulkner v. State , 549 S.W.2d 1, 4 (Tex. Crim. App. 1976). The Texas Controlled Substances Act d efines “controlled substance” as a substance listed in Penalty Group 1. T EX
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. § 481.002(5). Cocaine is listed in Penalty Group 1. Id . § 481.102(3)(D). Thus, cocaine is by definition, and as a matter of l aw, a controlled substance, and the court’s instruction did not usurp the jury’s fact-finding role nor lessen the State ’s burden of proof. See See Germany , 1999 WL 72297, at *2; Fletcher , 1993 WL 532058, at *1. We overrule the first issue. Enhancement Paragraphs In his second issue, appellant contends the trial court violate d article 36.01(a)(1) of the Texas Code of Criminal Procedure by failing to read the allegations contained in the two enhancement paragraphs and rec eive pleas of “true” or “not true” to those allegations before assessing his sentenc e. He contends that by failing to do so, the issue of e nhancement was not joined and t he sentence assessed was greater than the maxim um allowed. We disagree.
In Reed v. State , as here, the punishment phase of the trial was heard by the trial court. 500 S.W.2d 497, 499 (Tex. Crim. App. 1973). The enhancement allegation was not read to the de fendant, and defense counsel d id not object to this omission. Id . at 498–99. The court thus determined that it “appear[s] that appellant–4– may not raise the question for the first time on appeal.” Id . at 499. The Court noted that, had there been an objection, the problem could have been easily remedied by reintroducing the evidence, if any had been offered after the e nhancement allegations were read, and the plea entered. Id . Here, appellant did not object to the trial court’s failure to read the enhancement allegations and receive pleas; thus, his complaint is waived. Even if the issue was not waived, article 36.01(a)(1) applies t o the order of proceedings in a jury trial, but appellant elected for the tria l court to decide punishment. See T EX
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. art. 36.01(a). When the punishment phase of trial is held before t he trial court, the code of crim inal procedure does not mandate the reading of the enhanc ement paragraphs and the recei pt of the defendant’s plea to the e nhancement paragraphs. See Reed , 500 S.W.2d at 499; see also Hernandez v. State , No. 05-18-00172-CR, 2019 WL 3543576, at *6 (Tex. App.—Dallas Aug. 5, 2019, pet. re f’d) (mem. op.) (not designate d for publication), citing Lopez v. State, 452 S.W.3d 425, 428 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Davis v. State , 970 S.W.2d 747, 749 (Tex. App.—Houston [14th Dist.] 1998, no pet.); Garner v. State , 858 S.W.2d 656, 659 (Tex. App.—Fort Worth 1993, pet. ref’d). In add ition, when the court decides punishment, t he court is not required to read its finding concerning th e enhancement paragraph to the defendant. Hernandez , 2019 WL 3543576, at *6. Although it is preferred that trial courts read the enhancement paragraphs ora lly and find them to be true or n ot true on the record,–5– a trial court does not err by not doing so as long as it appear s on the record that the court found the enhancement true and entered sentenced accordin gly. Id

. Here, the record shows that appe llant was aware of the two enha ncement allegations and their impact on any sentence. Immediately befo re voir dire began, the State said it had offered appellant a ten-year sentence and was “open to talk about that rec.” The trial court explained that if the two enhanceme nt paragraphs were found true, appellant was facing a minimum sentence of twenty-f ive years and suggested appellant talk to his l awyer “and see if there’s anyt hing that you want to talk about with him, or do, or if he can give you some good adv ice or something, because 25 years is a lot.” After a brief recess, appellant an d his attorney returned to the courtroom, and defense counsel said he had talked to app ellant, who was not willing to “negotiate anything. . . [n]ot even probation.” Giv en these events, it would be difficult to say appellant wa s misled about the charge again st him. At punishment, the State presente d the penitentiary packets con taining the documents of the prior convicti ons alleged as enhancements and fingerprint evidence to link the convictions t o appellant. Thereafter, app ellant testified and said he understood the prosecution had introduced evidence of his pa st criminal record. After hearing the evidence, the trial court sentenced appellant to twenty-five years, “the “minimum I can give.” The judgment reflects findings of t rue to both enhancement paragraphs, which are supported by the record. Bec ause appellant has–6– not preserved his issue for review and because, in any event, t he trial court did not err, we overrule his second issue. We affirm the trial court’s judgment.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GILBERT LAMO N CLEVELAND, Appellant
No. 05-19-00515-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 4, Dallas County, Texas Trial Court Cause No. F18-51262-K. Opinion delivered by JusticeReichek; Justices Myers and PartidaKipness participating. Based on the Court’s opinion o f this date, the judgment of the trial court is AFFIRMED

. Judgment entered April 29, 2020