No. 05-02-01728-CR
Opinion Filed March 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F01-75104-H. Affirmed as Modified.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
A jury convicted Chadrick Sharone Harris of aggravated assault. The trial court assessed punishment, enhanced by two prior felony convictions, at forty years' imprisonment. Appellant contends that the trial court erred in enhancing his sentence with the two prior convictions because the trial court made no findings on the prior convictions. The State asks this court to reform the trial court's judgment to reflect that appellant pleaded true to two enhancement paragraphs in his indictment and to reflect the trial court's implied finding of true on the enhancement paragraphs. We modify the trial court's judgment and affirm as modified.
BACKGROUND
Appellant's indictment contained two enhancement paragraphs for previous felony convictions for unlawful possession of a firearm and possession of a controlled substance. During the punishment phase of trial, appellant pleaded true to both paragraphs and signed a written stipulation evidencing his pleas of true. The trial court asked appellant if he understood that his pleas of true would raise the range of punishment in his case to twenty-five years to life, and appellant answered in the affirmative. The court made an affirmative finding that a deadly weapon was used in the offense, set punishment at forty years' imprisonment, and pronounced the sentence. However, the trial court made no oral or written findings on the prior convictions and made no reference to them in the judgment. LAW AND DISCUSSION
Appellant contends that because the trial court did not make findings of true on the prior convictions, it illegally sentenced him to a punishment outside the range proscribed by law for the offense. Aggravated assault is a second degree felony, punishable by not more than twenty years or less than two years and a fine of up to $10,000. Tex. Pen. Code Ann. § 12.33; 22.02 (Vernon 2003 and Supp. 2004-05). However, the range of punishment increases to not less than twenty-five years or more than ninety-nine years or life confinement when enhanced by two prior felony convictions. Tex. Pen. Code Ann. § 12.42 (Vernon Supp. 2004-05). For appellant's sentence to be enhanced based on prior convictions, the State had the burden to prove the convictions were final convictions under the law and appellant was the person convicted of those offenses. See Wilson v. State, 671 S.W.2d 524, 525 (Tex.Crim.App. 1984). The State's burden was satisfied by defendant's pleas of true to the enhancement paragraphs in the indictment. See id. Because the enhancement paragraphs were proved, punishment at the enhanced level was mandatory. See id at 526. Therefore, the forty year sentences imposed by the trial court were within the statutorily permissible range of punishment and were legal. Appellant did not object to the trial court's actions at sentencing or in his motion for new trial. Because a sentence outside the maximum or minimum range of punishment is unauthorized by law and is therefore illegal, a party is not required to make a contemporaneous objection to the imposition of an illegal sentence. See Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003); Perez v. State, 129 S.W.3d 282, 289 (Tex.App.-Corpus Christi 2004, no pet.). But because we have determined that the sentences assessed by the trial court were legal, we conclude that appellant did not preserve error on the issue of whether the trial court erred by failing to enter oral or written findings on the enhancement paragraphs. Even if appellant properly preserved the issue for review, the trial court did not err by failing to orally read the enhancement paragraphs and find them to be true or false on the record. See Garner v. State, 858 S.W.2d 656, 659 (Tex.App.-Fort Worth 1993, writ ref'd) (finding it is better practice for trial court to orally read enhancement paragraphs and find them true or false on record, but failure to do so is not error because the trial court, rather than the jury, assessed punishment). We conclude that the trial court implicitly found the enhancement paragraphs to be true and sentenced appellant accordingly. As a result, we overrule appellant's sole issue. REFORMING THE JUDGMENT
In a cross-point, the State requests that we order the judgment reformed to reflect appellant's pleas of true to the enhancement paragraphs. Appellant pleaded true and stipulated to the enhancement paragraphs, and signed a stipulation evidencing his pleas of true. However, the trial court entered "N/A" opposite "PLEA TO ENHANCEMENT PARAGRAPHS" and "FINDINGS ON ENHANCEMENT" on its judgment. An appellate court has the authority to modify incorrect judgments where the evidence necessary to correct a judgment appears in the record. Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, writ ref'd); Tyler v. State, 137 S.W.3d 261, 267-68 (Tex.App.-Houston [1st Dist.] 2004, no pet.); see French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992) (stating that appellant court had authority to reform judgment to include affirmative finding of use of deadly weapon); Howell v. State, 563 S.W.2d 933, 936 (Tex.Crim.App. 1978) (reforming judgment and sentence to reflect punishment enhanced using prior felony conviction). The authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court. Asberry, 813 S.W.2d at 529. Because appellant pleaded true to the enhancement paragraphs and because we determine that the trial court impliedly found the enhancement paragraphs true, we conclude that we have the necessary evidence to correct the judgment. Accordingly, we modify the judgment to reflect that appellant pleaded true to the enhancement paragraphs in his indictment regarding two previous felony convictions of unlawful possession of a firearm and possession of a controlled substance and to reflect the trial court's implied finding of true on the enhancement paragraphs. CONCLUSION
Having resolved appellant's sole issue against him, we affirm the trial court's judgment as modified.