From the Court of Appeals for the First District of Texas

Johnny Louis Torres Jr. v. State of Texas – PDF of Opinion – Modified and Affirmed

The court’s opinion here deals with an appeal of a conviction for possession of a less than one ounce of cocaine, a state jail felony which was enhanced to a second degree felony by prior state jail convictions. Mr. Torres pled guilty to the charge, and he was sentenced to twelve years confinement in TDC.

Torres appealed his conviction on two grounds.Firstly that that the trial court did not order a substance abuse evaluation as required by statute. Secondly that he was given a sentence that was impermissibly long because the trial court did not make express oral or written findings on the enhancement paragraphs.

The appellate court overruled Torres’s first point of error because Torres did not raise that particular issue at trial. Citing Alberto v. State, the court found that while a substance abuse evaluation is mandatory, a defendant must assert that right at trial or the claim is waived, and the claim may not be addressed on appeal. 100 S.W.3d 528, 529 (Tex. App.—Texarkana 2003, no pet.).

Torres’s second issue, that his sentence was unlawfully enhanced, was also overruled by the court. Without enhancement, a state jail felony conviction prison sentence is a maximum of two years, however, with enhancement the maximum is increased to twenty years.

Torres argues that he never pled true to any of the enhancement paragraphs making the enhancements invalid, however, the court found that Torres was properly admonished of the punishment range when he signed the plea agreement paperwork. Torres also pled guilty to the indictment which contained the same enhancement paragraphs, which the court found also constituted a plea of “true” to the enhancement allegations.

The court found that even though the trial court made no express findings about the enhancement paragraphs, the trial court impliedly found them true. A trial court can make an implied finding of true to enhancement allegations when the record establishes the truth of the allegation. Appellate courts will find that such an implied finding was made if the punishment range is outside the range of the underlying offense, but was in the range for the enhanced offense. The court found that Torres acknowledged the enhancements in the documents he signed and that the punishment was inside the range for the enhanced offense. The court then found that the implied findings were supported by the record because Torres pled true to the offense which is considered to be enough evidence to support the enhancement allegation. The court then modified the record to indicate that Torres pled true to the enhancement paragraphs.