William Anderson Norman, III v. The State of Texas--Appeal from 173rd District Court of Henderson County

NO. 12-04-00057-CR

NO. 12-04-00058-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WILLIAM ANDERSON NORMAN, III., APPEALS FROM THE 173RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

William Anderson Norman appeals his convictions for aggravated assault and escape, for which he was sentenced to imprisonment for life and twenty years respectively. Appellant raises one issue on appeal. We affirm.

Background

Appellant was charged by separate indictments with the offenses of aggravated assault and escape. The indictments each contained an enhancement paragraph related to a prior conviction for aggravated assault with a deadly weapon. Appellant pleaded guilty as charged with regard to the allegations in each indictment and pleaded true with respect to each enhancement paragraph. //

A sentencing hearing was held on January 8, 2004. The trial court found Appellant guilty as charged in both causes. The trial court further accepted Appellant s plea of true to the respective enhancement paragraphs, expressly finding that the plea was freely and voluntarily made. However, the trial court did not expressly make an express finding of true on the record with respect to the enhancement paragraphs. Ultimately, the trial court sentenced Appellant to imprisonment for life with respect to the aggravated assault charge and to imprisonment for twenty years with respect to the escape charge. This appeal followed.

Express finding of Truth

In his sole issue, Appellant argues that absent an express finding of true with respect to the

enhancements charged, the sentence imposed by the trial court was outside of the statutory range of punishment and, therefore, illegal. However, by not objecting to the trial court s failure to expressly find the enhancement in each case to be true, Appellant has waived such an issue on appeal. See Garner v. State, 858 S.W.2d 656, 659 (Tex. App. Fort Worth 1993, pet. ref d); Tex. R. App. P. 33.1(a).

Yet, even if Appellant had properly preserved error, the outcome would not differ. While it is a better practice for a trial court to orally read the enhancement paragraphs and find them to be true or false on the record, a trial court does not err by failing to do so when it assesses punishment instead of a jury. See Garner, 858 S.W.2d at 660. Here, Appellant pleaded true to the enhancement paragraph in each case. // Furthermore, the pen pack admitted into evidence in each cause supports a finding that the respective enhancement paragraph is true. We hold that the trial court did not err in failing to expressly find that the enhancement allegations in each cause were true. Appellant s sole issue is overruled.

Disposition

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered December 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)