in Re William Owens, Jr.

IN THE

TENTH COURT OF APPEALS

No. 10-04-00276-CR

In re William Owens, Jr.

Original Proceeding

MEMORANDUM Opinion

          In this action, Owens requests this Court to mandamus both the district clerk and the trial court.

First, we have no jurisdiction to mandamus a district clerk.  In re Simpson, 997 S.W.2d 939 (Tex. App.—Waco 1999)(orig. proceeding).  Thus, as to the district clerk, the petition for writ of mandamus is dismissed.

Second, it appears the trial court has not signed a written order regarding Owens’s motion for DNA testing.  The trial court is required to enter a written order in resolving a motion seeking DNA testing of evidence.  In re Johnston, 79 S.W.3d 195, 198 (Tex. App.—Texarkana 2002)(orig. proceeding); see also Cravin v. State, 95 S.W.3d 506, 508 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

          As to the trial court, the petition for writ of mandamus is conditionally granted.  The writ will only issue if the trial court fails to take appropriate action consistent with this opinion.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Writ dismissed in part and conditionally granted in part

Opinion delivered and filed October 20, 2004

[OT06]

. Crim. App. 1991).

      The indictment alleges in pertinent part that Camp committed this offense “by asking the [victim] to lay on a couch next to him, and let him touch her breasts and genitals and by grabbing her hand, which amounted to more than mere preparation that tended but failed to effect the commission of the offense . . . .”

      The victim testified that:

      •    Camp asked her to sit next to him on a couch;

      •    he asked her if she ever let anyone “touch [her] in private places” to which she responded “no”;

      •    he asked her if she “would lay back on the couch and let him touch [her] breasts and [her] private area down there” to which she responded “no” and “started to get up”;

      •    when she stood to walk away, Camp grabbed her by the wrist and asked her to sit down; and

      •    when she said “no” and began to walk away, he grabbed her arm “in an attempt to pull [her] back.”

      Reviewing this evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support the conviction. See Hackbarth v. State, 617 S.W.2d 944, 945-46 (Tex. Crim. App. [Panel Op.] 1981); Franklin v. State, 34 Tex. Crim. 203, 213, 29 S.W. 1088, 1090 (1895). Thus, Camp’s third issue is without merit.

      Camp avers in his first issue that the court erred by sentencing him to enhanced punishments without an affirmative jury finding on the enhancement allegation. He also complains of the absence of an affirmative finding on the enhancement allegation in the judgment.

      Camp pleaded true to the enhancement allegation. The State offered in evidence the penitentiary packet reflecting the prior conviction alleged without objection. The court’s punishment charge informed the jury that Camp had pleaded true to the enhancement allegation and instructed the jury to assess his punishment within the ranges provided for a person previously convicted of a felony. The jury assessed his punishment accordingly.

      The judgment contains the following recitals regarding the enhancement allegation:

      PLEA TO ENHANCEMENT PARAGRAPH(S): True

      ENHANCEMENT PARAGRAPH(S):   One

      In a similar case, the Court of Criminal Appeals has held that, upon a defendant’s plea of “true” to an enhancement allegation, “the validity of the enhancement allegation [i]s not in issue” and there is “no need to submit its validity for the jury’s consideration.” Howell v. State, 563 S.W.2d 933, 936 (Tex. Crim. App. [Panel Op.] 1978); accord Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984); Kenneybrew v. State, 576 S.W.2d 861, 862 (Tex. Crim. App. [Panel Op.] 1979); Vance v. State, 970 S.W.2d 130, 133 (Tex. App.—Dallas 1998, no pet.).

      Camp cites Turk v. State as authority for the proposition that the punishment verdicts must be reversed in the absence of an affirmative finding on the enhancement allegation. 867 S.W.2d 883 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). In Turk, the State alleged two prior felony convictions to enhance the defendant’s punishment to that of an habitual offender. Id. at 887-88 (citing Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2001)). Turk pleaded “true” to one of these allegations and “not true” to the other. The prosecution offered no punishment evidence because a fingerprint expert was unavailable. After a presentence investigation, a different judge proceeded to pronounce Turk’s sentence. This second judge “assumed that the enhancement allegations had been properly presented, and the prosecutor did not attempt to correct his assumption.” The judgment recited that both enhancement allegations were found true. In a “special hearing,” each judge who presided over Turk’s trial testified that he did not make a finding of true on the enhancement allegations.

      Even though the punishment assessed (50 years) would fall within the habitual or enhanced punishment ranges for Turk’s convictions, the court reversed for a new punishment hearing because it could not “assume that the trial court automatically would assess another 50-year punishment.” Id. at 888. We believe Turk is distinguishable however because the defendant in that case pleaded “not true” to one of the enhancement allegations.

      Nonetheless, Camp is correct that the judgment does not recite a finding on the enhancement allegation. Article 37.12 of the Code of Criminal Procedure requires the court to enter “the proper judgment.” Tex. Code Crim. Proc. Ann. art. 37.12 (Vernon 1981); see also Rachuig v. State, 972 S.W.2d 170, 179 (Tex. App.—Waco 1998, pet. ref’d). Such a judgment must accurately reflect the court’s findings on any enhancement allegations. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1(7) (Vernon Supp. 2001); Rachuig, 972 S.W.2d at 179; State v. Dickerson, 864 S.W.2d 761, 764 (Tex. App.—Houston [1st Dist.] 1993, no pet.).

      For this reason, we modify that portion of the court’s judgment which recites, “ENHANCEMENT PARAGRAPH(S): One ,” to read, “FINDING ON ENHANCEMENT PARAGRAPH(S): True .” This modification aside, Camp’s first issue is without merit.

      We affirm the judgment as modified.

                                                                         REX D. DAVIS

                                                                         Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed as modified

Opinion delivered and filed August 1, 2001

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