Robert Preston Ray A/K/A Robert D. Ray v. State

• Court: Court of Appeals of Texas
• Decided: September 5, 2013
• Docket: 07-12-00174-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-12-00174-CR

ROBERT PRESTON RAY A/K/A ROBERT D. RAY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the Criminal District Court 4 Tarrant County, Texas Trial Court No. 1226573D, Honorable Michael Thomas, Presiding

September 5, 2013

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Robert Preston Ray was convicted of burglary of a habitation upon an open plea

of guilty and sentenced to twenty-five years imprisonment. In challenging his

conviction, he claims 1) his punishment was void due to it exceeding the statutory

range, 2) he received ineffective assistance of counsel because his attorney failed to

argue that a prior conviction for a felony of the third degree should be treated as a

conviction for a class A misdemeanor or a state jail felony offense, and 3) he received ineffective assistance of counsel because his counsel waived a reporter’s record of the

plea hearing. We affirm the judgment.

Issue 1 – Void Punishment

In his first issue, appellant argues that his sentence of twenty-five years is void

since it allegedly exceeds the permissible range of punishment. It purportedly exceeds

the permissible range since the trial court never satisfied a prerequisite for assessing

that amount, the prerequisite being an oral pronouncement that the enhancement

allegations in the indictment were true. We overrule the issue.

The indictment contained an “Habitual Offender Notice” in which the State

alleged that appellant had been convicted in 1999 of being a felon in possession of a

firearm and in August of 1993 of burglarizing a vehicle. Both were felony convictions.

Furthermore, appellant judicially confessed (in writing) that not only were “[a]ll facts

alleged in the indictment . . . true and correct” but also that “[a]ll enhancement and

habitual [offender] allegations . . . [were] true and correct,” with an exception not here

pertinent. At the sentencing hearing, the trial court noted that appellant pled that the

habitual offender allegations were true and then sentenced him as an habitual offender

to the minimum term of twenty-five years imprisonment. However, it did not orally

pronounce that the enhancement allegations were true. Instead, it stated in its

judgment that the enhancement paragraphs were true and specifically incorporated the

following passage in the same document: “HABITUAL OFFENDER NOTICE – TRUE.”

Unless the enhancement allegations were found true, appellant could not have

been sentenced to prison for twenty-five years; this is so since the maximum term for

the second degree felony of burglarizing a vehicle, see TEX. PENAL CODE ANN. §

2 30.02(c)(1) (West 2011), was twenty years. Id. § 12.33(a). In other words, it took a

finding of true to the enhancement paragraph to elevate the sentence to a twenty-five-

year term. See id. § 12.42(d) (West Supp. 2012). And, because the trial court did not

orally find the allegations to be true, according to appellant, he could not have been

assessed the greater punishment. We disagree.

Just as a trial court can implicitly find an accused guilty without uttering the word

“guilty” while pronouncing sentencing, Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim.

App. 1978), it can implicitly find enhancement allegations to be true. Waggoner v.

State, No. 11-07-00335-CR, 2009 Tex. App. LEXIS 4805, at *8 (Tex. App.–Eastland

June 25, 2009, pet. ref’d) (not designated for publication) (wherein the reviewing court

determined that the finding of true was implicit in the trial court's revocation of

Waggoner's community supervision and ordering of a presentence investigation). And

by acknowledging that appellant had pled true to the enhancement paragraph,

pronouncing sentence at twenty-five years, and ultimately writing in the judgment that

the allegations were true, the trial court at bar implicitly pronounced that the

enhancement or habitual offender allegations were true.

Issue 2 – Failure to Object to Enhancement

In his second issue, appellant would have us conclude that his trial counsel was

ineffective since he did not argue that a prior felony conviction should be treated (for

purposes of punishment) as a class A misdemeanor or state jail felony. 1 Why counsel

did not so argue appears nowhere in the record. Indeed, appellant acknowledges in his

brief that he raises the claims of ineffectiveness for the first time on appeal. So, it can

1 Apparently, the offense was a felony when committed but legislatively changed to a class A misdemeanor. Appellant acknowledges, though, that the conviction was and remains a felony.

3 be said that trial counsel lacked the opportunity to address the matter or otherwise

justify his omission. And, that is fatal to appellant's issue, according to the opinion in

Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012). The issue is

overruled.

Issue 3 – Waiver of Reporter’s Record

In his third issue, appellant argues that his counsel again was ineffective for

allowing him to waive the presence of a court reporter at his plea hearing. That the

presence of a reporter may be waived is beyond dispute. See TEX. R. APP. P. 13.1(a)

(stating that a court reporter must attend court sessions and make a full record of the

proceedings unless excused by agreement of the parties). Here, the record reveals that

appellant waived the presence of the reporter via the plea admonishments signed by

him, his attorney, counsel for the State, and the trial court. Furthermore, his trial

attorney was not afforded opportunity below to explain (via a motion for new trial or

otherwise) why he permitted that. Thus, we cannot but overrule the issue on the

authority of Menefield v. State, supra.

Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice

Do not publish.