Opinion
Nos. 05-10-00694-CR, 05-10-00728-CR
Opinion Filed June 20, 2011. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 1 Dallas County, Texas, Trial Court Cause Nos. F09-56489-H and F09-56488-H.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
XL Sherman Mathonican appeals convictions for possession of cocaine in the amount of one gram or more but less than four grams and possession of a firearm by a felon. He pleaded guilty to the offenses and true to enhancement paragraphs without the benefit of a negotiated plea agreement. The trial court sentenced appellant to 25 years incarceration in each case, to run concurrently. On appeal, appellant argues that the convictions must be reversed because the trial court did not adopt the findings, conclusions, and recommendations made by the magistrate. He also argues that the evidence in the drug case is insufficient to show that he committed one of the offenses alleged for enhancement. We affirm the convictions. However, we reverse the sentence in the possession of cocaine case and remand for a new punishment hearing in that case. Because the issues of law are settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4. Appellant's first issue states, "The trial court's judgments must be reversed because they are based on findings, conclusions, and recommendations made by a magistrate that were never reviewed or adopted by the trial court judge." Citing the Dallas County Magistrate's Act, appellant argues that a magistrate's actions are not legally binding unless they are adopted by the referring court. See Tex. Gov't Code Ann. §§ 54.301-.313 (West 2005). The Magistrate's Act authorizes a district court to refer criminal matters to a magistrate Id. §§ 54.301, .306. At the end of the proceedings, the magistrate transmits any papers relating to the case, including the magistrate's findings, conclusions, and recommendations, to the referring court. Id. § 54.311. The referring court may accept, reject, or revise the magistrate's findings, conclusions, and recommendations. Id. § 54.312(a). If the referring court does not accept, reject, or revise the action of the magistrate, it becomes the decree of the court. Id. § 54.312(b). The record shows that appellant appeared before a magistrate and entered guilty pleas to both offenses and pleas of true to enhancement paragraphs. In each case, the record contains a standardized form entitled "Findings, Conclusions and Recommendations of Magistrate Original Plea." Several of the listed findings and conclusions were "x"`d on the form by a computer or typewriter. The magistrate did not make any recommendations as to punishment in either case other than that court costs should be assessed. Both forms indicate that the cases were reset for sentencing. At the bottom of both forms is an order for the referring court to sign indicating its adoption of the magistrate's findings, conclusions, and recommendations. Neither order is signed. On the date set for sentencing, appellant appeared in the district court and the following occurred:
THE COURT:
And Mr. Mathonican, are you the same person who came before Magistrate, Alfredo Campos back on March 23, 2010, plead guilty to cocaine, possession of a firearm by a felon, pled true to the enhancement paragraph and notice of enhancement allegations? The Judge did not make a finding of guilt, and then it was set today for sentencing; is that correct?
THE DEFENDANT:
Yes.
THE COURT:
You're the same person?
THE DEFENDANT:
Yes.
The court asked whether the parties wanted to present additional evidence. Both sides presented testimony and other evidence relevant to sentencing. At the end of the presentation of evidence, the court stated:
THE COURT:So I'm going to find you guilty; find the enhancement paragraphs true. In each case I'll fix the punishment at the minimum 25 years. It is undisputed that the orders at the bottom of the magistrate's findings, conclusions, and recommendations forms in these cases are blank. And there is no other order in the clerk's records where the district court adopted the magistrate's actions. Appellant argues that because the district court never formally adopted the magistrate's actions, the judgments are void and must be reversed. He contends that it is unconstitutional for a referring court to adopt a magistrate's findings and recommendations by inaction. Appellant cites Christian v. State, 865 S.W.2d 198, 202 (Tex. App.-Dallas 1993, pet. ref'd), to support his arguments. In that case, we stated that unless the record affirmatively reflects that the referring court did not review the magistrate's actions, we must presume the trial court did so. Id. As we stated, a presumption of regularity applies to court proceedings, and the appellant bears the burden of overcoming that presumption by presenting a record that affirmatively shows that the requirements of the Magistrate's Act were not met. Id. See Kelley v. State, 676 S.W.2d 104, 108-09 (Tex. Crim. App. 1984). Here, the magistrate did not make any recommendations with regard to sentencing. Appellant appeared before the magistrate and entered guilty pleas to the offenses and pleas of true to the enhancement paragraphs. But the magistrate did not find appellant guilty, did not find the enhancement allegations true, and did not recommend a sentence. Instead, the magistrate reset the case to a future date for sentencing before the referring court. And when appellant appeared in the referring court for sentencing, the referring court asked appellant to confirm whether he was the same person who had appeared before the magistrate earlier and pleaded guilty to the offenses and true to the enhancement allegations. Appellant stated that he was that same person. Consequently, we presume from this exchange that the trial court reviewed the record and the magistrate's findings. See Christian, 865 S.W.2d at 202. We conclude that appellant did not present a record showing affirmatively that the referring court did not review and adopt the magistrate's actions. See id. Appellant also contends that section 54.312(b) of the government code, which states that a magistrate's actions become the decree of the court if the referring court does not take any action on them, is unconstitutional because it allows a magistrate's findings and recommendations to have binding effect based on inaction by the referring court and impermissibly vests an unelected magistrate with the authority of an elected state trial judge. But the record shows that after both sides had presented punishment evidence, it was the referring court that actually found appellant guilty, found the enhancement allegations true, and assessed punishment, not the magistrate. And appellant does not complain about the referring court's actions. Although the referring court did not sign the form order adopting the magistrate's findings concerning the entry of the pleas, there is no express requirement that it must do so. See Kelley, 676 S.W.2d at 108-09. And we conclude that the referring court here, even though it did not expressly state it was adopting the magistrate's findings, impliedly adopted those findings during the sentencing hearing. We resolve appellant's first issue against him. In his second issue, appellant argues that the evidence is insufficient to support a finding that he committed the offense alleged in one of the offenses used for enhancement in the drug case. We agree. Appellant was convicted of possession of cocaine in the amount of one gram or more but less than four grams, a third-degree felony. See Tex. Health Safety Code Ann. §§ 481.102(3)(d), .115(c) (West 2010). The indictment in that case alleged one enhancement paragraph-a 1988 conviction for burglary of a habitation. Sometime later, the State filed a "Notice of the State's Special Plea of Enhancement Paragraphs" in which it stated its intent to enhance appellant's punishment in the drug case by two prior convictions: the 1988 burglary and a 1992 conviction for robbery. The plea bargain papers, however, identified only the 1988 burglary conviction; appellant did not judicially confess to the 1992 robbery. The State concedes that appellant's judicial confession referred only to the 1988 burglary conviction. When appellant appeared before the magistrate and entered his pleas, the record shows that he pleaded true to the 1988 burglary; nothing was said about the 1992 robbery. However, when appellant appeared before the referring court, that court found the allegation of the 1992 robbery conviction to be true, even though the State did not present any evidence of the conviction and appellant did not judicially confess to it. The State "agrees that the record fails to reflect a sufficient offer of proof" for the 1992 robbery conviction. We conclude that there is insufficient evidence to support the finding of true to the 1992 robbery conviction used for enhancement. Appellant argues he was harmed because the punishment range for a third-degree felony with one prior felony conviction is 2 to 20 years, see Tex. Penal Code Ann. §§ 12.33(a), 12.42(a)(3) (West Supp. 2010), while the punishment range with two prior felony convictions is 25 to 99 years or life, see id. § 12.42(d). The trial court sentenced appellant for a third-degree felony with two prior felony convictions and assessed the minimum of 25 years. The State argues that the error is harmless. It argues that a remand for a new punishment hearing is a "useless procedure" because appellant will get the same minimum 25-year sentence on remand because "what was left undone the first time through would simply be done." It cites cases to support its argument, but those cases are distinguishable. See Allen v. State, 552 S.W.2d 843, 846 (Tex. Crim. App. 1977) (stating it would be "useless" to remand for new punishment hearing because life was only sentence available under facts of case); Miller v. State, 472 S.W.2d 269, 271 (Tex. Crim. App. 1971) (stating that trial court had already fixed the error in punishment and to remand for new punishment hearing would have been "useless"). Appellant's punishment was enhanced based on a conviction the State did not prove. He was sentenced to 25 years in prison when the maximum sentence he could receive based on the evidence was 20 years. Such a failure of proof is not subject to a harmless error analysis. Ex parte Miller, 330 S.W.3d 610, 624 (Tex. Crim. App. 2009); Jordan v. State, 256 S.W.3d 286, 292-93 (Tex. Crim. App. 2008). The State alternatively asks us to reform the judgment to delete the reference to the second enhancement paragraph and to assess a sentence of 20 years "as it seems clear (1) that the trial court would have assessed such sentence had it recognized the lack of proof and (2) such reformation could not possibly harm Mathonican, since assessing the maximum `correct' sentence in [the drug case] would not affect how long Mathonican is required to remain in prison. . . ." The State does not cite any authority to support its position. We conclude that the evidence is insufficient to prove the 1992 robbery conviction alleged for enhancement purposes in the drug case and, as a result, that case must be remanded for a new punishment hearing. We resolve issue two in appellant's favor. Appellant asks that we issue an instruction that, on remand, the State may not rely on the 1992 robbery conviction for enhancement purposes because it would violate the Double Jeorpardy Clause. We disagree, and, as a result, decline to issue such an instruction. See Jordan, 256 S.W.3d at 292 ("When a reviewing court determines that the State's evidence fails to show that an enhancement allegation is true, the Double Jeopardy Clause does not bar the use of the enhancement conviction during a retrial on punishment.") (citing Monge v. California, 524 U.S. 721, 734 (1998)). We affirm the trial court's judgment in Cause No. F09-56488-H. In Cause No. F09-56489-H, we affirm the conviction, but we modify the judgment to delete the plea of true and the finding of true to the second enhancement paragraph and we reverse the sentence of 25 years. We remand Cause No. F09-56489-H to the trial court for a new punishment hearing.
The magistrate's findings and conclusions in each case included that appellant appeared in court, waived a jury, waived his confrontation rights, judicially confessed to the crimes, pleaded guilty to the offenses and true to the enhancement paragraphs, entered his pleas freely and voluntarily, and was not coerced to enter his pleas.