State v. Kersh

2 S.W.3d 636, 1999 Tex. App. LEXIS 6552, 1999 WL 672535

• Court: Court of Appeals of Texas
• Decided: August 31, 1999
• Docket: 14-98-00855-CR
• Status: Published

Opinions

OPINION

MAURICE E. AMIDEI, Justice.

Appellee, Phillip Wayne Kersh, was charged with possession of a controlled substance. See Tex. Health § Safety Code Ann. § 481.115(a) (Vernon 1996). He pleaded guilty, the trial court deferred adjudication, and the State subsequently moved to adjudicate guilt. The trial court found appellee guilty and sentenced him. The State brings this appeal, contending the trial court illegally sentenced appellee. We reverse and remand.

Appellee was charged by indictment with possession of a controlled substance, a felony. See id. § 481.115(d). The indictment also contained two enhancement paragraphs concerning previous felony convictions. Appellee pleaded guilty to the indictment and true to the enhancement paragraphs. The trial court found the enhancement paragraphs were true, deferred a finding of guilt, and placed ap-pellee on community supervision. Four years later, appellee violated his probation, and the State moved to adjudicate his guilt. The trial court found appellee had violated the terms of his probation and sentenced him without regard to his previous plea or its findings regarding the enhancement paragraphs.

In its sole point of error, the State contends the trial court erred in sentencing appellee to an unenhanced punishment range. A penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal. See Flores v. State, 936 S.W.2d 478, 478 (Tex.App.—Eastland 1996, pet. ref'd).

The range of punishment for ap-pellee’s crime, enhanced by two previous felony convictions, is set by the Texas Penal Code:

If it is shown on the trial of a felony offense ... that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

Tex. Pen.Code Ann. § 12.42(d) (Vernon 1994). The trial court may defer an adjudication of guilt under Texas Code of Criminal Procedure art. 42.12 § 5(a).¹ The trial court noted in its findings, however, that “there is no mechanism for deferring a finding of true or not true on enhancement paragraphs where the court has determined to defer an adjudication of guilt and placed the defendant on probation.” Consequently, it did not consider the enhancement provisions in fashioning a sentence.

After an appellant enters a guilty plea, the trial becomes a unitary proceeding, and the issues of guilt and punishment cannot be separated. See Washington v. State, 893 S.W.2d 107, 108-09 (Tex.App—Dallas 1995, no pet.). For example, the time in which a defendant may withdraw his guilty plea is the same as the time in which he may withdraw his plea of true. See id. Similarly, a defendant’s waiver of her fifth amendment right not to incriminate herself during the guilt-innocence phase also applies to the punishment phase. See Carroll v. State, 975 S.W.2d 630, 632 (Tex.Crim.App.1998). Accordingly, if guilt and punishment cannot be separated, it is illogical to say that a trial court can defer judgment on guilt but not defer a finding on an enhancement provision. In addition, several other opinions have upheld sentences including enhanced punishment after the trial court deferred adjudication. See, e.g., Ray v. State, 919 S.W.2d 125, 126 (Tex.Crim.App.1996); Fisher v. State, 921 S.W.2d 814, 815, 817 (Tex.App.—Houston [14 th Dist.] 1996, pet. ref'd); Ward v. State, 906 S.W.2d 182, 183, 185 (Tex.App.—Austin 1995, pet. ref'd).

The court essentially bifurcated the issues of guilt and punishment when it determined the enhancement provisions could not apply. In fashioning a sentence, it assessed punishment which was not within the statutory range for a felony committed by a habitual offender. Consequently, the trial court erred in assessing punishment. We sustain the State’s sole point of error and reverse and remand this matter for further proceedings consistent with this opinion.

1 . Under sec. 12.42, the punishment is absolutely fixed. See State v. Garza, 824 S.W.2d 324, 326 (Tex.App.—San Antonio 1992, pet. ref'd). A trial court cannot ignore this statute and assess probation. See id. Nonetheless, some courts have done so. See e.g., Ward v. State, 906 S.W.2d 182, 183, 185 (Tex.App.—Austin 1995, pet. ref'd). Further, the State does not appeal the trial court’s decision to assess probation.