### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00140- CR

Duone Titus -Ray Hairston, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CALDWELL CO UNTY, 421 ST JUDICI AL DISTRICT NO. 16- 167, TH E H ONO RAB LE CHRI S SCH NEIDER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Duone Titus-Ray Hairston g uilty of theft of proper ty valued at less than $2,500 with two prior theft convictio n s . S ee T ex . Penal Code § 31.03 (a) , (e) (4)( D). Appellant submitt ed the issue of punishment to the trial court, and the court assessed app el l an t ’s punishment at confinement for 450 d ay s i n a s t ate jail fac ility and assessed a $1,000 fine. See id. § 12.35(a) , (b). On a

ppeal, appellant complains about error in the writt en judgment of conviction and seeks modification of the judgme nt. We sustain his sole point of err or, modify the judgme nt of conviction ac cording ly , and af firm the judg ment of convic tion as modified.DISCUSSIO N 1 I n his sole point of err or, appellant argues that the trial court’s judgme nt of conviction must be modified beca

use it incorre ctly indicates that he pled true to two enhanc ement alleg ations. The indictment in this case char g ed appellant with the theft of proper ty valued at less than $2,500—specific ally , a cell phone—on or about October 6, 2016, and alleg ed, for purposes of eleva ting the offe nse to a state jail felony theft, two prior theft convictions. See id. § 31.03(e) (4)( D) (providing that theft offe nse is state jail felony if value of proper ty is less than $2,500 and defe ndant has been previously convic ted two or more times of any g rade of theft). Although appellant pled “n o t g uilty ” to the offe nse, he stipulated that he was previously convicted of the two prior theft offe nses alleg ed in the indictment. The jury found him “GUI L TY of the offe nse of Theft as alleg ed in the indictment.”

The indictmen t d i d n o t contain any enhanc ement para g raphs for the purpose of enhanc ing punishment. See, e.g. , id. § 12.425 (authorizing enhanc ed punishment rang es for repe at and habitual offe nders convicted of state jail felony offe nse). “I t has been uniformly held that prior theft convictions alleg ed to elevate a misdemeanor theft to a felony -leve l offe nse are jurisdictional elements of a new, felony offe nse, rather than simply punishment enhanc ements.” State v. Re yes , 310 S.W .3d 59, 61 (Tex. App.—El Paso 2010, pet. ref’d ) (c i t at i ons omitted); see Gant v. State , 606 S.W .2d 867, 869 n.2, 871 n.9 (Tex. Crim. App. 1980) (construing prede cessor statute of section 31.01(e) (4)( D) and concluding t h at statutory provision requiring two prior theft convictions for

Be cause the parties are familiar with the facts of t he case, it s proce dural hist ory , and the 1 evidenc e adduce d at trial, we do not rec ite them in this opinion ex ce pt as nece ssary to advise the parties of the Court’s dec ision and the basic r easons f or it. See Tex. R. App. P . 47.1, 47.4. 2purpose of eleva ting offe nse from misdemeanor to f elony was “ not an ‘e nhance ment’ provision at all” but rathe r “a jurisdictional element—a ‘for b i d d en conduct’ —of t he felony theft”)

. Howeve r, the trial court’s j u d gm en t o f conviction ref lects that appellant pled “true ” to two enhanc ement para g raphs. Be cause the record in this ca s e cl ea rl y demonstrates that there wer e no enhanc ement para g raphs in the indictment, the rec itation in the judgme nt that appellant enter ed pleas of “true ” to the enha nceme nt para g raphs is er

roneous. We sustain appe llant’s sole point of err or. 2 This Court has au t h o rity to modify incorre ct judgme nts when the nece ssary information is available t o d o s o . S ee Tex. R. App. P. 43.2(b) (authorizing court of appea ls to modify trial court’s judgme nt and aff irm it as modified); Bigley v. State , 865 S.W .2d 26, 27–28 (Tex. Crim. App. 1993) (conc luding that Texas Rules of Appellate Procedur e empower courts of appea ls to ref orm judgme nts). Acc ording , we modify the judgme nt of conviction to delete any ref ere nce to appellant plea ding “ true” to enhanc ement par ag raphs.

CONCLUSION Having conclude d that the writ t en judgme nt of conviction in this case contains

non-re versible error , we modify the trial cour

t’s judgme nt of conviction t o delete any ref ere nce to appellant plea ding to e nhance ment para g raphs a nd aff irm the judg ment as modified.

The State conce des that the inclusion of lang uag e ref lecting a plea to enhanc ement 2 para g raphs is er

ror a nd joins appellant’s re quest for modification of the judg ment. 3__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Pemberton, and G oodwin Modified and, a s Modified, Aff irmed Filed: Aug ust 4, 2017 Do Not Publish

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