Opinion
No. 05-09-00007-CR
Opinion issued April 6, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-80661-06.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
MEMORANDUM OPINION
Terry Bryant Crisp appeals his conviction for the state jail felony offense of evading arrest while using a motor vehicle. After finding appellant guilty, the jury assessed punishment, enhanced by two prior felony convictions, at fifteen years in prison. On appeal, appellant challenged the legal sufficiency of the evidence to show his prior convictions occurred in sequence authorizing his state jail conviction to be punished as a second-degree felony. The State conceded error, and this Court reversed and remanded for new punishment hearing under article 44.29(b) of the code of criminal procedure. Six days before the new punishment hearing, the State filed a written notice of its intent to request the factfinder assessing punishment to determine appellant used or exhibited a deadly weapon, a motor vehicle, during the underlying offense of evading arrest. The jury subsequently made an affirmative finding of use of a deadly weapon and assessed punishment, enhanced by a prior felony conviction, at fifteen years in prison and a $5000 fine. Appellant raises two issues, both of which relate to punishment. In his first issue, appellant claims his due process rights were violated when the State failed to provide proper notice of its intent to enhance his punishment using a deadly weapon finding. Because appellant presents no argument or authority that the Texas constitution provides different protection than the federal constitution, we will analyze this issue only for a violation of the federal constitution. See Mitschke v. State, 129 S.W.3d 130, 132 (Tex. Crim App. 2004) (because appellant did not argue two constitutions offer different levels of protection, court considered only federal constitutional claim); Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993) (same). Appellant claims the notice given by the State was inadequate because it was filed almost two years after the original guilt innocence phase of the trial and a "mere week" before the second hearing on punishment. Appellant does not allege the State vindictively sought the deadly weapon finding. A defendant is entitled to some form of notice at the time of prosecution that the State will seek an affirmative finding of the use or exhibition of a deadly weapon during the commission of the charged crime. Brooks v. State, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993) (per curiam); Johnson v. State, 784 S.W.2d 413, 414 (Tex. Crim. App. 1990). This notice "need not be included in the indictment" but it must be in writing. Brooks, 847 S.W.2d at 248; Patterson v. State, 138 S.W.3d 643, 647 (Tex. App.-Dallas 2004, no pet.). While the Texas Court of Criminal Appeals has not held what constitutes timely notice in this context, it has held that the right to notice of the State's intent to use prior convictions as enhancements, similar to notice given for deadly weapon allegations, is constitutionally based and due process does not require notice of prior convictions be given before the trial on guilt begins. See Villescas v. State, 189 S.W.3d 290, 294-95 (Tex. Crim. App. 2006). Furthermore, when a defendant has no challenge to the allegation and does not request a continuance to discover or prepare such a challenge, "notice given at the beginning of the punishment phase satisfies the federal constitution." See id. at 294. Appellant first argues the State's notice was inadequate because it was filed a "mere week" before punishment. During punishment, the State asked the arresting officer if appellant's manner of driving could have caused death or serious bodily injury. Appellant objected to any testimony about appellant's car being a deadly weapon because the State did not allege use of a deadly weapon in the original indictment dated March 30, 2006. Appellant did not complain that the written notice, given six days before the punishment hearing began, was untimely. Nor did appellant raise a defense to the allegation or request a continuance to discover or prepare a challenge to the allegation. Under these facts and circumstances, we conclude the State's notice, given six days before the start of the punishment hearing, constituted adequate notice and satisfied due process concerns. See Nolasco v. State, 970 S.W.2d 194, 197 (Tex. App.-Dallas 1998, no pet.) (notice of State's intent to seek deadly weapon finding, given just prior to start of trial, provided defendant with timely written notice that use of deadly weapon would be fact issue in case; further, appellant's failure to request continuance to remedy perceived inadequate notice problem defeats any due process claim he might have). The remainder of appellant's complaint under his first issue is that because the State did not allege a deadly weapon finding in the original March 2006 indictment, it should not have been allowed to do so after this case was remanded for new punishment hearing. As noted above, while the State is required to give written notice of its intent to seek an affirmative finding on use of a deadly weapon, it is not limited to doing so in the indictment. Brooks, 847 S.W.2d at 248; Patterson, 138 S.W.3d at 647. Here, the State filed in the trial court written notice of the State's intent to seek a deadly weapon finding. That the State chose to do so after the indictment was already on file does not render the notice inadequate or improper. We overrule appellant's first issue. In his second issue, appellant claims he suffered multiple punishments in violation of the double jeopardy clause of the United States Constitution. Specifically, he alleges punishment was assessed multiple times for the same wrongful conduct when his punishment was enhanced under section 12.35(c)(1) of the penal code and then further enhanced under section 12.42. Appellee was tried for a state jail felony punishable under penal code section 12.35. See Tex. Penal Code Ann. § 12.35 (Vernon Supp. 2009). Because the jury made an affirmative finding on use of a deadly weapon, section 12.35(c) determines appellant's punishment category:
An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
(1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited . . .Tex. Penal Code Ann. § 12.35(c). In contrast, section 12.42 provides for enhancement of punishment for repeat and habitual felony offenders. See Tex. Penal Code Ann. § 12.42 (Vernon Supp. 2009). Specifically, section 12.42(a)(3) provides:
Except as provided by Subsection (c)(2), if it is shown on the trial of a state jail felony punishable under Section 12.35(c) or on the trial of a third-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony.Tex. Penal Code Ann. § 12.42(a)(3). Although a "habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is essentially independent of the determination of guilt on the underlying substantive offense." Oyler v. Boles, 368 U.S. 448, 452 (1962). While the habitual criminal issue may be included in the trial of the felony charge, "it is a distinct issue, and it may appropriately be the subject of separate determination." Id. Thus, the deadly weapon finding elevated appellant's state jail offense to that of a third degree felony whereas the finding of a prior felony conviction under section 12.42(a)(3) determined his punishment (second degree felony) as a habitual offender. Because appellant was punished only for the offense of evading arrest while using a motor vehicle and only under section 12.42(a)(3), we conclude there was no violation of the double jeopardy clause. See Whittle v. State, 147 Tex. Crim. 227, 229, 179 S.W.2d 569, 570 (Tex. Crim App. 1944); see also Bunton v. State, 136 S.W.3d 355, 364-65 (Tex. App.-Austin 2004, pet. ref'd) (concluding no multiple punishments or successive prosecutions involved where defendant was convicted of aggravated state jail felony that was "punishable" under section 12.35(c)(1) because of deadly weapon finding, but was actually punished under article 12.42(d) because of prior convictions alleged and proved); Monge v. California, 524 U.S. 721, 728 (1998) (concluding enhanced sentence imposed on persistent offenders should not be viewed as either new jeopardy or additional penalty for earlier crimes but as stiffened penalty for latest crime which is considered aggravated offense because it is repetitive one). We overrule appellant's second issue. We affirm the trial court's judgment.