IN THE COURT OF CRIMINAL APPEALS
OF TEXAS




NO. 1868-99

 

THE STATE OF TEXAS, Appellant

v.


PHILLIP WAYNE KERSH, Appellee





ON DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY

Womack, J., delivered the opinion of the Court, in which Keller, P.J., and Meyers, Price, Johnson, Keasler, Hervey, and Cochran, JJ., joined. Holcomb, J., filed a dissenting opinion.



This case presents the issue of whether the court of appeals erred in taking jurisdiction of an appeal by the State. Specifically, we must decide whether the State may appeal a trial court's decision to ignore enhancement allegations that previously have been found to be true when assessing punishment at an adjudication hearing. The answer to this question depends upon whether such a decision is part of the "sentence" under Code of Criminal Procedure articles 42.02 and 44.01(b). Because the meaning of "sentence" under these articles includes enhancement allegations, we hold that the State may appeal a trial court's failure to consider them and that the court of appeals did not err in taking jurisdiction of the State's appeal in this case.

The appellant was charged with felony possession of a controlled substance. The indictment included two enhancement paragraphs that alleged previous felony convictions. The appellant pleaded guilty to the charged offense and true to the enhancement allegations. The trial court admonished him that the range of punishment was twenty-five years to life or ninety-nine years, based on the appellant's plea of true to the enhancement paragraphs. The court accepted the appellant's guilty plea, found the enhancement paragraphs to be true, but deferred an adjudication of guilt. The court placed the appellant on community supervision for ten years. Four years later, alleging violations of several terms of the probation, the State moved to adjudicate the appellant's guilt. Finding that the appellant had violated the terms of his probation, the trial court granted the State's motion to adjudicate and found him guilty of the original offense. The court sentenced the appellant to ten years' confinement, but did not take into account the enhancement allegations for which a finding of true had been made in the original proceeding.

The State appealed, complaining that the court erred by not considering the enhancement paragraphs and by failing to sentence the appellant pursuant to the habitual-offender provisions in Penal Code section 12.42(d). The State argued that under section 12.42(d), the appellant's two previous final felony convictions, the second felony offense having occurred after the first conviction was final, required that he receive a sentence of 25 years to life imprisonment. (1) The court of appeals reversed the trial court's judgment, and held that the trial court had sentenced the appellant outside the range of punishment for a felony committed by a habitual offender by ignoring the previously found enhancement allegations. (2) We granted review to determine whether the court of appeals erred in taking jurisdiction of the State's appeal. Our review is limited to the jurisdictional questions. We express no opinion as to the legality of the sentence imposed.

Code of Criminal Procedure article 44.01(b) gives the State the right "to appeal a sentence in a case on the ground that the sentence is illegal." Article 42.02 provides: "The sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law." In State v. Ross, (3) we explained that the sentence "is nothing more than the portion of the judgment setting out the terms of punishment." (4) It consists of the facts of the punishment itself, including the date of commencement of the sentence, its duration, and the concurrent or cumulative nature of the term of confinement and the amount of the fine, if any. (5) Factors that merely affect these facts are not part of the sentence. (6) We also noted that article 42.01 sets forth the elements of a proper judgment, and that deadly-weapon findings are "listed separately from the portions regarding the sentence." (7) For these reasons, we held that a deadly-weapon finding is not part of the sentence, and that, therefore, the State is not entitled to appeal an omission of one from a trial court's judgment. (8)

Enhancement findings, however, differ from a deadly-weapon finding in two important respects. First, enhancements are not explicitly mentioned in article 42.01. The second important distinction between a deadly-weapon finding and enhancements appears upon examination of Chapter 12 of the Penal Code. Under Ross, the assessment of punishment within a particular range is part of the sentence. (9) Chapter 12 of the Penal Code provides the punishment ranges for offenses, and includes the ranges for habitual and repeat offenders. (10) The duration of punishments prescribed for habitual and repeat offenders is part of the sentence just as is the duration of punishments prescribed for the other types of offenses addressed in Chapter 12. Deadly-weapon findings under article 42.12 do not appear in Chapter 12, we consider them to be included in the facts pertaining to the proper punishment and the term of confinement, (11) as they only affect the duration of the sentence. The legislature's decision to prescribe the punishments for exceptional sentences and those for ordinary sentences in the same explicit manner supports the conclusion that both are included in the meaning of "sentence" under article 42.02.

Furthermore, in Sigler v. State, (12) we held that proven enhancement allegations are historical facts, "offered for the purpose of arriving at the punishment to be assessed." (13) Such facts are the type of information to which Ross held the article 42.02 definition of sentence was limited, for they prescribe the proper term of confinement. (14)

For the above reasons, we hold that enhancement findings are part of the sentence, and that the State may appeal a trial court's failure to consider such findings when assessing punishment.

Therefore, the court of appeals properly took jurisdiction of the State's appeal in this case. The court of appeals' judgment is affirmed.



En Banc.

Delivered February 4, 2004.

Publish.

1. "If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years." Tex. Penal Code 12.42(d).

2. State v. Kersh, 2 S.W.3d 636, 638 (Tex. App.-- Houston [14th Dist.] 1999).

3. 953 S.W.2d 748, 750 (Tex. Cr. App. 1997).

4. Id., at 750.

5. See Tex. Code Crim. Proc. art. 42.01, 1(9).

6. Ross, 953 S.W.2d, at 751.

7. Id. (citing Marshall v. State, 860 S.W.2d 142, 143 (Tex. App. -- Dallas 1993).

8. Id.

9. See Ross, 953 S.W.2d, at 751 (holding that the duration of the punishment is part of the sentence).

10. See Tex. Penal Code 12.42.

11. We recognize that section 12.35(c)(1) enhances the punishment for a state-jail felony in which a deadly weapon was used or exhibited in its commission to that of a third-degree felony. The deadly-weapon findings that were at issue in Ross, however, were those that were found pursuant to article 42.12, not those that operate pursuant to section 12.35(c)(1), and therefore are not separate from the sentence in article 42.01.

12. 143 Tex. Crim. 220, 157 S.W.2d 903 (1942).

13. Id., at 224, 157 S.W.2d, at 904-05 (citing 24 C.J.S. Criminal Law 1958, at 1143).

14. See Tex. Code Crim. Proc. art. 42.01, 1(19).