No. 05-02-01515-CR
Opinion Filed April 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80863-01. Affirmed.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
LANG-MIERS, Justice.
Buddy Wayne Rowe appeals his conviction for failure to stop and render aid. In a single issue, he contends the trial court erred in assessing an enhanced, thirty-year sentence because the trial court did not make findings on the enhancement paragraphs in the indictment. We affirm.
Appellant's first appointed counsel filed a motion to withdraw, accompanied by a brief asserting the appeals were frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967); Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.). On initial submission, the Court concluded the enhancement issue appellant now brings constituted an arguable issue for appeal.
Background
After drinking alcohol, appellant drove his car through a red traffic light and caused an automobile accident. While fleeing the scene of the first accident, appellant collided with a second vehicle. Both accidents caused injuries to occupants of the vehicles appellant struck. In two indictments, appellant was charged with intoxication assault, aggravated assault, felony driving while intoxicated, and two counts of failure to stop and render aid. As a predicate for the felony DWI charge, and as enhancements for the other four offenses, the indictments alleged appellant was convicted in 1990 and 1995 of felony driving while intoxicated. In the indictment at issue in this case, Counts I and II describe the failure to stop and render aid offenses, Counts A and B allege the enhancement convictions, and Count C again describes the enhancement convictions and alleges they were sequential. The trial court conducted a joint bench trial for all five offenses. After hearing the evidence, the trial court acquitted appellant of the Count II charge of failure to stop and render aid but convicted him of the other four charges. Before assessing punishment, the trial court spoke with the prosecutor to clarify which punishments should be enhanced and then made the following pronouncements: [The Court]:
Let me make sure I understand. The only case in which you all have habitualized the Defendant is the DWI case, right?
[The prosecutor]:
No, Your Honor, the DWI case is just classified as a regular —
[The Court]:
So it's a third degree felony.
[The prosecutor]:
Third degree felony. The intoxication assault, which he's been found guilty of aggravated assault and the failure to stop and render aid are the ones that have been habitualized.
[The Court]:
I'm sorry. I had it backwards. Okay, first of all, Mr. Rowe, the Court does find that each of the second and third paragraphs of the three indictments that I just inquired the prosecutor of, the intoxicated assault and the aggravated assault and failure to stop and render aid are true. I do find them true. In the DWI I think I've already done so by making a finding of guilty, but I do, of course, find that each of those two enhancement paragraphs there which raise that to a third degree felony are true. Having already found you guilty of that, I'll set your punishment in that case at ten years in prison and a fine of $500. In the other cases, Mr. Rowe, I'm going to set your punishment in each case at thirty years in prison, and in all three cases I do make an affirmative finding that a deadly weapon was used where it was alleged and where they are indicated. I'll run these four sentences together, as the law requires me to do that anyhow, but I will give you also credit for your back time.
The written judgment in this case records the State waived Counts A and B and the trial court found Count C to be true. The judgment accurately records the thirty-year sentence orally assessed by the trial court. The Parties' Contentions
The parties dispute what the trial court meant when it found true the "second and third paragraphs" of the indictment. Appellant contends the trial court was referring to Counts I and II charging the failure to stop and render aid offenses. Therefore, appellant contends, the trial court made no finding regarding the enhancement paragraphs. Without a finding on enhancement, appellant contends, the punishment assessed exceeds the maximum available sentence and is unauthorized. The State first responds appellant waived this issue by failing to object to the sentence in the trial court. Next, the State contends the context of the trial court's remarks shows the trial court intended to find the enhancement paragraphs "true." The State points out that a finding of "true" would be the wrong terminology to use in adjudicating the failure to stop and render aid offenses. Moreover, the State notes the incongruity in finding both Counts I and II to be "true" immediately after acquitting appellant on Count II. The State points out the trial court was discussing the enhancement allegations with the prosecutor immediately before making the findings, and the State had introduced sufficient evidence to prove the enhancement convictions. Thus, the State contends, taking into account the presumptive regularity of court proceedings, the trial court must have intended its "true" finding to apply to the second and third enhancement allegations found in Counts B and C. Finally, in the event the Court concludes the trial court erred, the State contends the error was harmless. Law and Discussion
Without enhancement, the offense of failure to stop and render aid after an accident resulting in injury or death is punishable by imprisonment for not more than five years, confinement in the county jail for not more than one year, a fine of up to $5000, or both a fine and term of imprisonment or confinement. See Tex. Transp. Code Ann. § 550.021(c) (Vernon 1999). The offense is treated as a third-degree felony for enhancement purposes. See Tex. Pen. Code Ann. § 12.41(1) (Vernon 2003); Childress v. State, 784 S.W.2d 361, 365-66 (Tex.Crim.App. 1990). Upon proof of two prior, sequential felony convictions, the punishment range for the offense is confinement for twenty-five to ninety-nine years or life. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2004-05). Because a sentence assessed from outside the punishment range would be unauthorized by law and thus illegal, we cannot agree with the State that appellant waived his appellate complaint by failing to make a contemporaneous objection. See Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003). Accordingly, we will consider the merits of appellant's contention. Upon consideration of the merits, however, we must conclude appellant has not shown error. In the absence of evidence to the contrary, we presume the regularity of the trial court's judgment and records. Jones v. State, 77 S.W.3d 819, 822 (Tex.Crim.App. 2002); Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984) (op. on reh'g). To prevail, appellant must overcome the presumption of regularity regarding the judgment's declarations that the trial court found Count C true and that a thirty-year sentence was properly assessed. In orally pronouncing its findings, the trial court was not specific regarding which paragraphs of the indictment it found true. In the written judgment, however, the trial court specifically identifies Count C as one of the paragraphs it found true. Although the trial court could have been more precise in its pronouncement, the record does not support appellant's hypothesis that the trial court was pronouncing Counts I and II to be true. And we find the State's contextual analysis of the record to be persuasive. As a result, we conclude appellant has not overcome the presumption of regularity attached to the judgment. See Breazeale, 683 S.W.2d at 450. Count C contains the necessary allegations to enhance appellant's punishment with two prior, sequential, felony convictions. Therefore, we overrule appellant's sole issue for appeal. We affirm the trial court's judgment.