Opinion
No. 05-07-00958-CR
Opinion Filed June 20, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-15088-HN.
Before Justices WRIGHT, BRIDGES, and MAZZANT.
OPINION
Christopher Irby was convicted of sexually assaulting a child under the age of seventeen. The trial court found the enhancement paragraph true and sentenced him to life in prison. In four issues, he alleges that the evidence is factually insufficient; the trial court abused its discretion by improperly limiting his cross-examination of the complainant and the complainant's father; the trial court should have obtained his formal plea to the enhancement paragraph in the indictment; and the judgment should be reformed to reflect his plea of "not true" to the enhancement paragraph. We affirm the trial court's judgment.
Background
W.P. first met appellant in January 2005, when W.P. was sixteen years old. At that point, W.P. had been expelled from school and was working for his father, Bobby, in the contracting business. W.P.'s friend, James Barber, introduced W.P. to appellant because James "was going to see if" appellant would let W.P. work with them. W.P. spent the night at appellant's apartment "[m]ay be two or three" times. On one occasion, appellant provided the boys with "sour apple pucker" alcohol in honor of James' birthday. Both of them became intoxicated and eventually threw up. After vomiting, W.P. lay down on a futon in appellant's living room. Appellant turned the television to "hardcore porn" and started "saying stuff" to W.P., but he could not understand what appellant was saying and "turned over to go to sleep." Appellant approached W.P. and asked "if he could help me." W.P. did not understand what appellant meant by that. Appellant then pulled down the covers and unbuttoned and unzipped W.P.'s pants, after which "he came down and started to mess with [W.P.'s] penis." Appellant "eventually sucked [W.P.'s] penis." W.P. was not comfortable with what was happening and tried to push appellant away, but he "was drunk and confused, and . . . didn't know what was going on exactly." W.P. claimed he did not ejaculate. When appellant stopped touching him, W.P turned over and went to sleep. W.P did not get up and leave because he was drunk and did not want to walk home. When he woke up the next day, W.P. did not confront appellant about what had happened because he was "freaked out" and "didn't know what to do." W.P. was reluctant to leave appellant's apartment because appellant still owed him some money from work he had done the day before. Appellant paid W.P. for that work and gave him "some extra money," which appellant told him "was for what he had done." Appellant also told W.P. not to tell anyone about what had happened. Approximately three to five weeks later, appellant called W.P. at home. Appellant asked him if he would come over and if appellant could watch him masturbate or "do something." On another occasion, W.P. called appellant and asked to borrow money. Appellant told W.P. that if he allowed appellant to watch him masturbate, he would pay him "some money" and W.P. "wouldn't have to borrow it." W.P. accepted the offer because he "figured" it would be "easy money." Later, when W.P. sat on a couch in appellant's living room and started to masturbate, appellant put his mouth on W.P.'s penis. Appellant paid him $100. W.P. met appellant at his apartment "one or two more times after that." During these sexual encounters, appellant would perform oral sex on W.P. On the last occasion they were together, which was "around April" or "between March and April," appellant promised to pay W.P. $200 but he only collected "a hundred [dollars] or maybe a little bit more." W.P. eventually told James about the sexual encounters with appellant. James reacted by "talking down on [W.P.] as if [he] was gay" and suggesting W.P. "was wrong" and "shouldn't have done it." He made W.P. "feel bad." The next person that W.P. confided in was William Flowers, a lifelong friend. W.P. did not remember when he told William but thought it was probably during the month of April 2005. William was upset but W.P. asked him to "keep his cool whenever he went" to appellant's apartment. The last time that W.P. spent the night at appellant's apartment was on April 6, 2005. W.P. went back to his father's home at "around" noon on April 7, despite the fact that Bobby told him "to be back by 9 or 10." When he arrived, W.P. was accompanied by William and another friend, Marcus Lee, who had also spent the night at appellant's apartment. Shortly thereafter, W.P. told his father that he was going back to appellant's apartment to collect "some money" that appellant owed W.P. William went with him. At trial, W.P. could not remember if appellant answered the door. According to W.P., the money that appellant owed him, which was "[a]round a hundred dollars," was for "the oral sex that [appellant] performed on me." About fifteen minutes after W.P. and William left the house, Bobby set off to find them. When he knocked on the door to appellant's apartment, appellant answered the door and told him W.P. was "not here." Bobby got back in his truck and drove back to the house. Five or ten minutes after he got home, W.P. and William "came walking up to the house." W.P. "seemed perplexed" and "agitated," indicating that "he wanted his money from [appellant]." William "was agitated too." Bobby told W.P. that he would drive him to appellant's apartment to "check on your money," after which they would go to work. W.P.'s mother then told W.P. and Bobby that, while they were talking, William had gone to appellant's apartment and that he might "do [appellant] some harm." Bobby explained that William had been "a friend of the family [for] a long time" and they did not want to see him "get in any trouble," "so we hopped in the truck and made a pretty fast B-line to" appellant's apartment. Along the way, W.P. and his parents saw William walking by the side of the road. They told him to "calm down" and assured him that they would "run by and see if W.P. can get his money, and then we'll go on to work and that will chill you out and keep you from getting in any trouble." When they arrived at appellant's apartment, appellant was in the parking lot. Bobby told him that "we're coming by to check on W.P.'s money." He asked appellant if he would have the money later in the day. Appellant said that he would, and Bobby told him they would come back. As appellant and Bobby were talking, W.P. leaned over to his mother and told her about the sexual encounters with appellant. At the time, Bobby "didn't know what all was going on." He described the conversation with appellant as "a general passing by." He said "[t]here were no raised voices" and that "[n]obody was mad." After he drove away, W.P.'s mother told Bobby to pull over because there was "something she needed to tell" him. It was at this point that he learned what had happened. After he was told about his son's sexual encounters with appellant, Bobby called the police. On April 7, 2005, W.P. was interviewed by Debbie Rule, who was an investigator in the Crimes Against Children Unit of the Balch Springs Police Department. She spoke with W.P. and William, both of whom gave written statements. According to Rule, W.P. stated, "[W.P] had told me that it happened at around January 8, and he wasn't real sure of which the exact date was." She added that "[i]t was one of his friend's or somebody's birthday around that weekend area." Rule extrapolated the date of Saturday January 8, 2005 alleged in the indictment from the information provided by W.P. W.P. told Rule that, during the instant offense, he ejaculated into appellant's mouth and that appellant swallowed it. W.P. also told Rule that sexual acts occurred at other times but he did not provide specific times or dates. Rule further testified that her colleague, Detective Thomas Clements, interviewed appellant and obtained written consent to search his apartment in Balch Springs and a second apartment in Grand Prairie. Both apartments "were almost totally vacant." Rule did not find any pornography, alcohol, marijuana, or any smoking implements at appellant's Balch Springs apartment, which was the location of the instant offense. She did not smell marijuana and did not recall whether the power was on or off. The State's final witness was Dr. Ellen J. Elliston, the director of the Victim Intervention and Rape Crisis Center at Parkland Hospital. According to Elliston, teenagers who experience instability in their families, such as the death of a loved one or a divorce, can leave "them more vulnerable to victimization." When a teenager becomes involved with an adult or is being used for sexual purposes, he may be confused if his body responds sexually but his mind is telling him that "this isn't the right thing for me to do." They may not "know how to get back out" of the situation and money provides "instant gratification." Drugs or alcohol can impair impulse control. Elliston also testified that teenage boys are reluctant to report when they have been sexually abused and that they usually do not tell their parents. In addition, it can be difficult for them to explain the exact order in which events occurred or provide details because a traumatized mind "cannot remember things in a detailed order." Appellant's first witness was Balch Springs Police Officer Troy Burke. While on patrol on April 7, 2005, Burke claimed that he saw W.P.'s family arguing and stopped to investigate. They were emotional but "[i]t wasn't anything physical, that [he] could tell." After discovering the reason for the argument, Burke recalled that Bobby told him there were two videotapes that might contain footage of "the sex acts." Burke was told that the videotapes could be found in a vehicle belonging to Jason Dennis. Dennis' vehicle was searched and two videotapes were recovered, but Burke did not view them and had "no idea" what, if anything, was on the videotapes. Burke got appellant's name from W.P. and his parents and relayed that information to other officers, who then went to appellant's apartment complex. Burke said he was not flagged down by Bobby. According to Cheryl Anderson, a "specialized support specialist" with TXU Corporate Security, there was no record of any electrical services being provided to appellant's apartment at 3210 Balch Springs Road, Apartment F1, between the dates of December 1, 2004 and April 7, 2005. She did not know, however, if any other electric service companies were doing business in Balch Springs during that period of time and did not know the exact date when the electricity "was cut off" to the apartment. Her job entailed searching company records and did not include investigation of the theft of electrical services. Appellant also presented alibi testimony from his aunt, Marie Marshall, and her brother, Lonnie Irby, appellant's uncle. According to their testimony, they met with appellant at Irby's house on January 8, 2005, to discuss whether they would loan appellant money to pay the rent on his Balch Springs apartment. Marshall remembered the date of the meeting because she wrote a check for appellant that was made payable to Phil Blackstone, the owner and manager of the Balch Springs apartment complex. Marshall testified that appellant was present at Irby's house from "around" 8 o'clock or 8:30 p.m. until approximately 10:00 p.m. and that he spent the night there. Irby also testified that appellant spent the night of January 8 at his house and that appellant had been "staying with [him] for probably about a month." Marshall admitted, however, that she could not be certain that appellant actually spent the night at Irby's house, and Irby testified that he had two jobs and did not always know appellant's whereabouts. Phil Blackstone, appellant's final witness, testified that he received a check from appellant "sometime" in January 2005. The check was deposited on January 13, 2005. On March 24, 2005, he filed a "forcible detainer" action against appellant because he failed to pay rent for the months of February and March of 2005. Inspecting the apartment after appellant's eviction, he found a couch, a chair, and "some miscellaneous furniture," including a ladder. He was not aware of any records indicating that electricity was being stolen in the apartment.Discussion
Factual Sufficiency In his first issue, appellant claims the evidence is factually insufficient to support his conviction for sexually assaulting a child under the age of seventeen. In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). The jury was authorized to convict appellant of sexual assault if it found beyond a reasonable doubt that he did intentionally or knowingly cause W.P.'s sexual organ to contact and penetrate his mouth. See Tex. Penal Code Ann. § 22.011(a)(2)(c) (Vernon Supp. 2007). Appellant argues that W.P.'s testimony is insufficient to support the conviction because he presented evidence of an alibi for the date of the offense alleged in the indictment, January 8, 2005, and there is no physical evidence corrobating the victim's allegations. Appellant also attacks W.P.'s credibility and the credibility of other witnesses, noting various inconsistencies in their testimony. Specifically, appellant points out that (1) W.P. testified that a "hard core" pornographic movie was showing on television at the time of the offense, yet there is no record of electricity being provided to appellant's apartment between December 1, 2004 and April 7, 2005; (2) William testified that Bobby knew about the sexual assault before Bobby drove to appellant's apartment to confront him about the money he owed W.P.; (3) there are other discrepancies concerning whom W.P. told about the offense, the order in which they were told, what they were told, and how they reacted; (4) W.P. testified that he did not ejaculate yet he told Rule that he ejaculated into appellant's mouth and appellant swallowed it; (5) despite testimony from W.P., William, and Marcus that they were smoking and drinking in appellant's apartment on April 6-7, 2005, police officers found no alcohol or marijuana when they searched the apartment and they did not detect the odor of marijuana. In this case, the State was not required to present physical evidence corroborating W.P.'s testimony. A conviction for sexual assault may be affirmed absent any medical evidence and solely on the testimony of the victim. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd); see also Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex.Crim.App. 1991); Garza v. State, 18 S.W.3d 813, 820 (Tex.App.-Fort Worth 2000, pet. ref'd). Therefore, the lack of medical or scientific evidence does not render the evidence factually insufficient. Nor are we persuaded that the testimony of appellant's aunt and uncle established an alibi for the offense. Appellant's aunt testified that she did not know whether appellant actually spent the night at his uncle's house on January 8, 2005. Appellant's uncle admitted that he worked two jobs and did not always know his nephew's whereabouts. In addition, the jury was free to accept or reject the testimony of any witness and apparently chose to believe the State's witnesses, and we are mindful of those findings. See Watson, 204 S.W.3d at 414. Appellant's remaining arguments challenge the jury's evaluation of the witnesses' credibility. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984); Bottenfield v. State, 77 S.W.3d 349, 355 (Tex.App.-Fort Worth 2002, pet. ref'd). The jury is free to believe or disbelieve the testimony of any witness, to reconcile conflicts in the testimony, and to accept or reject any or all of the evidence of either side. Bottenfield, 77 S.W.3d at 355. We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). The jury in this case was entitled to believe W.P.'s testimony and resolve any inconsistencies in his favor. Viewing the evidence in a neutral light, the evidence was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust, nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. We therefore conclude that the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first issue. Cross-Examination Regarding Deferred Adjudication Probation In his second issue, appellant claims the trial court violated his rights under the confrontation clause by denying his request to cross-examine W.P. regarding his status on deferred adjudication probation. During a pretrial hearing, defense counsel informed the trial court that W.P. was on deferred adjudication for an offense — aggravated assault with a deadly weapon — that occurred on January 30, 2005. Defense counsel wanted to cross-examine W.P. about the conviction in order to show his bias and motive for making the allegations against appellant. Counsel added that he believed appellant's status on either probation or bond at the time of the instant offense gave him a "motive to lie," i.e., "the motive to come up with a reason to make this allegation," and that the Supreme Court's decision in Davis v. Alaska, 415 U.S. 308 (1974), permitted counsel to inquire into such matters. Stating that it was "not knowledgeable of any of the facts that are going to be introduced into evidence," the trial court decided to withhold ruling on this issue. After Bobby testified, a second hearing was held to determine if defense would be allowed to question Bobby concerning W.P.'s status on deferred adjudication probation. Outside the presence of the jury, Bobby testified during a sub rosa examination that W.P. was charged with aggravated assault. He could not remember the date but he believed W.P. was probably fourteen or fifteen years old at the time. He also testified that W.P. was currently on probation and had been on probation for "about a year, maybe a little longer." Stating that Bobby did not have "sufficient knowledge," defense counsel withdrew his request to question him about the aggravated assault. During a recess in W.P.'s direct testimony, the trial court held a third hearing outside the jury's presence to determine whether defense counsel should be allowed to question W.P. about his deferred adjudication status. Defense counsel informed the court that the aggravated assault with a deadly weapon charge that led to W.P.'s deferred adjudication occurred on January 20, 2005, twelve days after the present offense. Counsel argued that when the outcry occurred on April 7, 2005, W.P. "was either on bond or on probation." Defense counsel argued that W.P. "might be involved at that time in a robbery of [appellant] and that in order to cover his own tracks to protect himself while he's on bond or probation for aggravated assault, he comes up with this allegation against [appellant]." Noting that the State had not even concluded its direct examination, the trial court decided to withhold its ruling until both sides had finished examining W.P. After both the State and the defense had finished examining the witness, the trial court held another hearing out of the jury's presence and refused to allow defense counsel to question W.P. about the deferred adjudication status. The court concluded that the "juvenile records" were not relevant to the present proceeding because the two matters were "completely separate." Standard of Review and Applicable Law We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Evidence of a juvenile adjudication, outside the realm of a juvenile proceeding, is not admissible for impeachment unless required by the Texas or United States Constitutions. See Tex. R. Evid. 609(d). The confrontation clause of the United States Constitution gives the defendant the right to cross-examine a witness with juvenile records if the cross-examination is reasonably calculated to expose a motive, bias, or interest for the witness to testify. See Davis, 415 U.S. at 317-18; Hoyos v. State, 982 S.W.2d 419, 421 (Tex.Crim.App. 1998); Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996); see also Juneau v. State, 49 S.W.3d 387, 389-90 (Tex.App.-Fort Worth 2000, pet. ref'd) (although deferred adjudication not admissible under rule 609, it is admissible to show bias, motive, or ill will; however, appellant must make some showing that witness's version of the facts might be a result of his deferred adjudication status). Evidence that a witness with a juvenile record might have been testifying due to pressure from the State and to shift suspicion away from himself is relevant to show bias and thus is admissible under the confrontation clause. See Davis, 415 U.S. at 318. The mere fact, however, that a witness might be on probation or have some otherwise "vulnerable relationship" with the State is not alone sufficient to establish bias or prejudice. See Carpenter v. State, 979 S.W.2d 633, 635 (Tex.Crim.App. 1998). There must be some causal connection or logical relationship between the witness's "vulnerable relationship" and his testimony at trial. Id.; Foster v. State, 25 S.W.3d 792, 796 (Tex.App.-Waco 2000, pet. ref'd) (refusing to allow cross-examination regarding prior juvenile adjudication for aggravated robbery because charges were not pending and record did not show previous adjudication somehow caused bias or prejudice to testify favorably for the State); Gilmore v. State, 871 S.W.2d 848, 851 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (refusing to allow cross-examination of complaining witness concerning prior juvenile record). Analysis In the present case, the record does not show a causal connection between W.P.'s record of deferred adjudication probation and his testimony at trial. According to defense counsel's assurances to the trial court, W.P. committed the aggravated assault with a deadly weapon on January 20, 2005, twelve days after the instant offense. He was subsequently placed on deferred adjudication probation. However, there is no indication that a motion to revoke W.P.'s probation was pending either when he made the allegations against appellant or at the time of trial. Thus, appellant has not shown that W.P.'s deferred adjudication status placed him in a "vulnerable relationship" with the State. The record also fails to show that W.P. had some bias or prejudice to testify favorably for the State because of his juvenile deferred adjudication status. Therefore, we cannot conclude that the trial court abused its discretion by refusing to allow appellant to cross-examine W.P. about his juvenile deferred adjudication status. See Foster, 25 S.W.3d at 796. We overrule appellant's second issue. Cross-Examination Regarding Prior Conviction In his third issue, appellant argues that the trial court abused its discretion when it refused to allow the defense to cross-examine Bobby about a prior conviction involving "moral turpitude." Appellant also claims he was harmed by the erroneous exclusion of this testimony. During the recess in Bobby's testimony, defense counsel argued, out of the jury's presence, that he should be permitted "to impeach [Bobby] with the fact that in 2006 he was convicted for failure to ID himself as a fugitive." Counsel also asserted that "failure to ID" is a crime of moral turpitude and that he should be allowed to impeach Bobby's "credibility for truth and veracity." The trial court then allowed defense counsel to make an offer of proof. During the sub rosa examination, Bobby admitted that he was arrested for the offense of failure to identify in 2006 and that he gave a "fake name" to police officers. Bobby also admitted that he was "given straight probation or 365 days in jail probated for one year for the offense of failure to identify" himself as fugitive. He was convicted and sentenced to one year of probation. The trial court concluded that appellant could not question Bobby about the arrest and subsequent conviction. During a recess in W.P.'s direct testimony, appellant asked the trial court to reconsider this ruling. He tendered a document showing that Bobby "was convicted of failure to ID as a fugitive with attempt to give false information on December 14, 2006." The court reserved its ruling and requested that "if the Court reverses its ruling or grants your motion at a later time that both sides have the witness to remain available." The ruling, however, was not reversed. Standard of Review and Applicable Law We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Osbourn, 92 S.W.3d at 537; Green, 934 S.W.2d at 101-02. Texas Rule of Evidence 609 permits the credibility of a witness to be attacked with evidence of the witness's conviction for a felony or crime involving moral turpitude. Tex. R. Evid. 609(a). The rule allows the court to decide whether the evidence should be admitted after it balances the probative value of the evidence against its prejudicial effect. See id. Offenses involving "dishonesty or false statement" are crimes involving moral turpitude. Dallas County Bail Bond Bd. v. Mason, 773 S.W.2d 586, 589 (Tex.App.-Dallas 1989, no writ). Appellant argues that Bobby's conviction for failure to identify was a crime of moral turpitude that was admissible to attack his credibility. We need not resolve this issue. Even if the trial court erred by refusing to allow defense counsel to cross-examine Bobby about his misdemeanor conviction for "failure to ID," we conclude the error was harmless. Harm Analysis With respect to the erroneous admission or exclusion of evidence, constitutional error is presented only if the correct ruling was constitutionally required because a mere misapplication of the rules of evidence is not constitutional error. See Fox v. State, 115 S.W.3d 550, 563 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); Alford v. State, 22 S.W.3d 669, 673 (Tex.App.-Fort Worth 2000, pet. ref'd). In this case, the alleged error involved the misapplication of the rules of evidence and appellant does not claim the admission of the evidence in question was directly required by either the Texas Constitution or the United States Constitution. We therefore apply the harmless error standard found in rule 44.2(b) because the error is not constitutional. See Tex. R. App. P. 44.2(b); Potier v. State, 68 S.W.3d 657, 666 (Tex.Crim.App. 2002) (court of appeals correctly applied rule 44.2(b) to erroneous exclusion of evidence). Rule 44.2(b) provides that any non-constitutional error that does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002) (citations omitted). In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. Motilla, 78 S.W.3d at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In assessing harm, factors to be considered include the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. See Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867. Whether the State emphasized the error can be a factor. Motilla, 78 S.W.3d at 356. The weight of the evidence of appellant's guilt is also relevant in conducting the harm analysis under rule 44.2(b). Id. at 359-60. In determining the magnitude of the harm resulting from the trial court's error, we have examined and considered the entire record. As we understand the record, however, Bobby's testimony was not integral to the State's case against appellant. Most of his testimony concerned the events of April 7, 2005, which was the day W.P. reported the sexual assault to the police. He provided no details regarding the sexual assault itself and most of his testimony was cumulative of the testimony of other witnesses — W.P., William, Marcus, and Rule — that described the events of April 7, 2005. Moreover, with the exception of the misdemeanor conviction for "failure to ID," there were no limitations on appellant's cross-examination of Bobby. It is also worth noting that the "failure to ID" case was disposed of before Bobby testified and no plea agreement is associated with his trial testimony. In addition, W.P. unequivocally testified that appellant caused W.P.'s penis to contact and penetrate appellant's mouth. After reviewing the entire record, we therefore conclude the trial court's error, if any, did not have a substantial and injurious effect or influence on the jury's verdict. We overrule appellant's third issue. Plea to the Enhancement Paragraph In his fourth issue, appellant argues that the trial court erred in failing to obtain his plea to the enhancement paragraph alleged in the indictment prior to the beginning of the penalty phase of the trial. The indictment in this case contained the following enhancement paragraph:And it is further presented to said Court that prior to the commission of the aforesaid offense, the said defendant was convicted of a felony offense of INDECENCY WITH A CHILD, on the 18TH day of DECEMBER, 1998, A.D., in Cause Number F88-95955-NU on the docket of 291st JUDICIAL DISTRICT COURT, of DALLAS County, Texas under the name of CHRISTOPHER IRBY and said conviction was a final conviction. . . .On December 20, 2005, the State filed a "Notice of the State's Intent to Prove Prior Indecency With a Child and Seek Punishment of Life Imprisonment." The notice alleged that appellant was finally convicted of indecency with a child in cause number F88-95955 prior to the instant offense. It was hand-delivered to defense counsel on the same day that it was filed. Appellant elected, in the event of conviction, to have his punishment assessed by the court. At the beginning of the punishment phase, the State asked the trial court to "take judicial notice of the State's intent to seek a life sentence which was filed with the court." The trial court granted the State's request. There was no objection from appellant. At the conclusion of the hearing, the trial court found that appellant "was previously convicted of the offense of indecency with a child under Section 21.11 of the Penal Code." The court then sentenced him to life in prison. In order to preserve a complaint for appellate review, a complaint must be made to the trial court by a timely request, objection, or motion that states "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless specific grounds were apparent from the context." Tex. R. App. P. 33.1(a)(1)(A). Here, appellant did not object during the punishment phase of the trial that the trial court did not read the enhancement paragraph or that it failed to obtain appellant's formal plea to the enhancement. We therefore conclude that he failed to preserve these arguments for appellate review. See id.; Newby v. State, 169 S.W.3d 413, 416 (Tex.App.-Texarkana 2005, pet. ref'd) (claim that trial court erred by failing to make oral pronouncement regarding punishment enhancement allegations not preserved because appellant did not raise this objection at trial); Garner v. State, 858 S.W.2d 656, 659 (Tex.App.-Fort Worth 1993, pet. ref'd) (appellant failed to preserve argument that trial court erred by not reading enhancement paragraph because there was no objection at trial). Furthermore, even if we assume appellant preserved his argument for appellate review, he elected to have the trial judge assess punishment. He claims that if prior convictions are alleged by the State for enhancement purposes, the proper procedure is for the trial court to receive the defendant's plea before evidence is received at the penalty phase. See Tex. Code Crim. Proc. Ann. arts. 36.01, 37.07 (Vernon 2007). These articles, however, do not require a reading of the enhancement paragraph to the defendant and receiving his plea in the penalty phase of a bifurcated trial when punishment is tried to the court alone. See Reed v. State, 500 S.W.2d 497, 499-500 (Tex.Crim.App. 1973); Simms. v. State, 848 S.W.2d 754, 755 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd); Nolan v. State, 624 S.W.2d 721, 724 (Tex.App.-Amarillo 1981, no pet.). Since appellant elected to have the trial court assess punishment, it was unnecessary for the enhancement paragraphs to be read to him or for the trial court to receive his plea. Appellant's fourth issue is overruled. Reformation of Judgment In his fifth issue, appellant asks us to modify the judgment to show that he entered a plea of "not true" to the enhancement paragraph alleged in the indictment. The State claims we do not have the necessary information to modify or reform the judgment. We agree with the State. According to the record, during the punishment phase appellant did not enter a formal plea to the enhancement paragraph. However, the judgment shows that he entered a plea of "true" to the enhancement paragraph. A reviewing court has the power to reform a judgment when it has the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). However, we must presume that the defendant was arraigned and that he pleaded to the charging instrument unless it was disputed in trial or "unless the record affirmatively shows the contrary." Tex. R. App. P. 44.2(c)(3) and (4); Hazelwood v. State, 838 S.W.2d 647, 651 (Tex.App.-Corpus Christi 1992, no pet.). Silence is not an affirmative showing of the failure to read the enhancement paragraph or to plead to it. See Salinas v. State, 888 S.W.2d 93, 101 (Tex.App.-Corpus Christi 1994, pet. denied); Hazelwood, 838 S.W.2d at 651; State ex rel. Ownby v. Harkins, 705 S.W.2d 788, 791 (Tex.App.-Dallas 1986, no pet.). In this case, the judgment reflects that appellant pleaded "true" to the enhancement paragraph. Appellant also did not object to the judgment at trial. With no support in the record to affirmatively show appellant pleaded not true to the enhancement paragraph, we do not have the necessary information to reform the judgment as appellant requests. We therefore overrule appellant's fifth issue. We affirm the trial court's judgment.