Opinion
No. 02-04-548-CR
Delivered: March 9, 2006.
Appeal from the 97th District Court of Montague County.
Panel B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DAUPHINOT, J. filed a dissenting opinion.
OPINION
Appellant Randy Lee Fugate was charged with possession of one gram or more but less than four grams of a controlled substance, a third-degree felony. See TEX. HEALTH SAFETY CODE ANN. § 481.115(c) (Vernon 2003); Tex. Penal Code Ann. § 12.42(a)(3) (Vernon Supp. 2005). A jury found him guilty and assessed his punishment at twenty years' confinement due to a prior felony conviction that enhanced his punishment to a second-degree felony. On appeal, he challenges the enhancement, claiming he did not receive sufficient notice. We affirm.
Factual Background
Appellant properly filed his request for notice of extraneous offenses and offenses to be used for enhancement under article 37.07(3)(g) and rule of evidence 404(b) on November 18, 2003. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (Vernon Supp. 2005); TEX. R. EVID. 404(b). The State file²d its notice of enhancement on October 5, 2004, one week prior to trial.
The State gave notice of two prior felony convictions. Appellant's objection as to one conviction was sustained and withdrawn by the State due to an erroneous allegation contained within that enhancement.
On the first day of trial, October 12, 2005, appellant objected to the State's notice of enhancement. Appellant contended that the State's notice was inadequate because it was given less than seven days prior to trial, citing Fairrow and Sears, two cases holding that ten days' notice of enhancement was presumptively sufficient without setting an arbitrary minimum. Fairrow v. State, 112 S.W.3d 288, 295 (Tex.App.-Dallas 2003, no pet.); Sears v. State, 91 S.W.3d 451, 455 (Tex.App.-Beaumont 2002, no pet.). The State replied that appellant had been given at least seven days' notice before trial; the notice was sent on October 5 and trial did not begin until October 12. Upon questioning from the trial court, appellant conceded that he had received notice by fax two to three weeks prior to trial of the State's intention to use two extraneous offenses; however, he did not receive notice that the offenses would be used for enhancement as well until one week before trial. The trial court overruled his objection concluding that seven days' notice before trial at guilt-innocence was sufficient. The trial court also denied appellant's request for a continuance. The jury convicted appellant of the present felony, with one enhaement, as a second-degree felony, giving him a twenty-year sentence.
Issue on Appeal
On appeal appellant raises no constitutional point. The sole basis for his appeal is the State's failure to give proper and timely notice of enhancement of punishment under section 12.42(a)(3) of the penal code, which he contends should have resulted in him receiving a maximum third-degree punishment. TEX. PENAL CODE ANN. § 12.42(a)(3).
At trial appellant argued that the ten-day notice rule for amendments to indictments should apply; on appeal he apparently abandoned this argument, for it is nowhere to be found in his brief. See TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (Vernon 1989) (requiring ten days' notice to amend an indictment). He merely notes the requirement in his list of other statutory examples requiring ten days' notice. Regardless, the dissent voluntarily draws the conclusion that a notice of enhancement is the equivalent of an amendment to an indictment, relying on the only intermediate appellate court opinion adopting this position, Hackett. See Dissenting Op. at 5 (citing Hackett v. State, 160 S.W.3d 588, 591 (Tex.App.-Waco 2005, pet. ref'd)).
Discussion
Normally, the maximum punishment for a third-degree felony is two to ten years' confinement whereas the punishment for a second-degree felony is two to twenty years' confinement. If the State shows that the defendant was convicted of a prior felony, the third-degree felony will be punished as a second-degree felony resulting in an enhanced punishment. Here, the jury assessed the maximum confinement for a second-degree felony, twenty years.
Appellant and the dissent urge us to adopt the Waco appellate court's holding in Hackett, the only intermediate appellate court opinion to adopt a bright-line rule. See Hackett, 160 S.W.3d at 591. We decline to do so.
In Hackett, the Waco court relied on article 28.10(a) of the code of criminal procedure, which requires a minimum of ten days' notice to amend an indictment. Id.; see also TEX. CODE CRIM. PROC. ANN. art. 28.10(a). Following Hackett, the dissent proposes adoption of a bright-line ten-day notice of enhancement rule that is nowhere to be found in the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 28.10. This court has previously declined the opportunity to adopt such a rule on two prior recent occasions in our Williams and Hudson opinions. Williams, 172 S.W.3d at 734; Hudson, 145 S.W.3d at 326. Adopting the dissenting opinion's position would require us to overrule this court's own precedent.
Article 28.10 provides, "On the request of the defendant, the court shall allow the defendant not less than ten days, or a shorter period if requested by the defendant, to respond to the amended indictment or information." TEX. CODE CRIM. PROC. ANN. art. 28.10. Neither the code of criminal procedure nor the penal code requires a minimum of ten days' notice of enhancement allegations. See Williams v. State, 172 S.W.3d 730, 734 (Tex.App.-Fort Worth 2005, pet. ref'd) (holding that the issue is whether a defendant received reasonable notice of the enhancement); Hudson v. State, 145 S.W.3d 323, 326 (Tex.App.-Fort Worth 2004, pet. ref'd) (acknowledging that notice is presumptively reasonable if given ten days before trial on guilt-innocence, but concluding notice unreasonable when given during trial on guilt-innocence, six days before trial on punishment began).
To support its position, the dissenting opinion argues that because the enhancement notice "affects the range of punishment [it] is a de facto amendment of the indictment." See Dissenting Op. at 5 (citing Hackett, 160 S.W.3d at 591). The dissent contends that because it is a de facto amendment to the indictment, article 28.10(a) of the code of criminal procedure requires us to likewise graft a minimum of ten days' notice onto a notice of enhancement. However, appellant never made this argument on appeal, and this use of article 28.10 has not been approved by the court of criminal appeals or by this court.
See Brooks v. State, 957 S.W.2d 30, 33-34 (Tex.Crim.App. 1997) (holding notice of enhancements must be pled in some form, but need not be in indictment); Hudson, 145 S.W.3d at 326 (holding ten days' notice of intent to use enhancement was "presumptively reasonable").
Because there is no statutory requirement and because the court of criminal appeals has created no bright-line rule requiring a minimum of ten days' notice of enhancements, we conclude and hold that there is no such ten-day notice requirement. Therefore, we further agree with the trial court's conclusion that seven days' notice was reasonable notice under these circumstances, and following our Williams and Hudson opinions, we likewise conclude that appellant received "reasonable" notice. See Williams, 172 S.W.3d at 734; Hudson, 145 S.W.3d at 326.
Finally, because we have found no error there is no reason to address harm. Even if we had found error requiring us to address harm, appellant only argues that his substantial rights were affected under rule 44.2(b), not under 44.2(a). See Tex.R.App.P. 44.2(a), (b). Therefore, we do not agree that a rule 44.2(a) constitutional harm analysis should be used as the dissent recommends. Because appellant raised no constitutional error or harm on appeal, there is no basis for addressing the alleged harm as constitutional under rule 44.2(a).
Conclusion
For these reasons, we overrule appellant's sole point and affirm the judgment of the trial court.
DISSENTING OPINION
The indictment charged Appellant with a third-degree felony. On November 18, 2003, Appellant filed a request for notice of the State's intent to offer Appellant's prior record under article 37.07, section 3(g). Almost a year later, on October 5, 2004, both sides announced ready for trial. Later that day, the State filed its notice of enhancement and, for the first time, gave Appellant notice. If the State proved either of the two prior convictions listed in the notice of enhancement, Appellant could be punished for a second-degree felony. Prior to the start of trial on October 12, 2004, Appellant objected that the notice was untimely. The State argued that the enhancement allegations were not amendments to the indictment and that therefore ten days' notice was not required. The State also noted that it had an open file policy, and Appellant agreed that he had been provided copies of the relevant pen packet two or three weeks earlier. The trial court overruled Appellant's objection and denied Appellant's motion for continuance. Appellant renewed his objection to the notice of enhancement on October 13, 2004, before the punishment trial began. The trial court sustained Appellant's objection to the enhancement allegation based on his conviction in trial court cause number 89-86M due to error in the allegation, and Appellant acknowledges that, because of the trial court's corrective action, there remains no error in regard to that allegation. That allegation is therefore not before us. But the trial court overruled all objections to the enhancement allegation based on Appellant's conviction in trial court cause number 88-86M. Appellant ultimately pled true to this enhancement allegation, preserving his right to appeal this issue.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (Vernon Supp. 2005).
See TEX. PENAL CODE ANN. § 12.42(a)(3) (Vernon Supp. 2005).
Several intermediate courts have faced the issue of timeliness of enhancement notice. In Sears v. State, our sister court in Beaumont held that "[t]he accused has a right to be advised that a greater penalty is to be sought." As to the method and timeliness of the notice of intent to enhance punishment, the court explained that an accused is entitled to proper notice of any prior conviction used for enhancement of punishment. "Proper notice constitutes `a description of the judgment of former conviction that will enable [the accused] to find the record and make a preparation for a trial of the question whether he is the convict named therein.'" The Sears court concluded that less than one business day and two weekend days' notice was not enough time to enable a defendant to properly prepare for trial.
Sears v. State, 91 S.W.3d 451, 454 (Tex.App.-Beaumont 2002, no pet.).
Id.
Id. at 454-55 (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex.Crim.App. 1978)).
Id. at 455.
In addressing the same issue in Fairrow v. State, our sister court in Dallas discussed the Sears analysis, pointing out that the Sears court did not establish a time certain but cited precedent that,
112 S.W.3d 288 (Tex.App.-Dallas 2003, no pet.).
"Notice is presumptively `reasonable' if given at least ten days before trial." See TEX. CODE CRIM. PROC. ANN. art. 1.051(e) (Vernon Supp. 2003) (holding appointed counsel afforded ten days to prepare for trial); Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989) (defendant allowed ten days to respond to an amended indictment or information); Campbell v. State, 456 S.W.2d 918, 920 (Tex.Crim.App. 1970) (probationer entitled to ten days to prepare for hearing after being served with motion to revoke).
Id. at 294.
In resolving the questions of whether the State's "Notice of Extraneous Offenses" filed the Friday before the Monday jury trial date constituted a "pleading" contemplated by Brooks and whether it afforded the appellant proper notice of intent to enhance punishment, the Fairrow court agreed with the reasoning in Sears, concluding that the State's notice did not suffice to confer notice of the intent to enhance punishment and was not a proper "pleading" under Brooks. But, like the Sears court, the Fairrow court declined to determine a certain time frame for timely notice, instead agreeing that notice is presumptively reasonable if given at least ten days before trial.
Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App. 1997).
Fairrow, 112 S.W.3d at 294.
Id. at 295.
Our sister court in Waco, however, addressed the issue of a bright-line rule directly. In Hackett v. State, that court stated,
Hackett v. State, 160 S.W.3d 588, 591 (Tex.App.-Waco 2005, pet. ref'd).
An enhancement notice which affects the range of punishment is a de facto amendment of the indictment. Because article 28.10(a) of the Code of Criminal Procedure requires a minimum of ten days' notice for an amendment to an indictment, we hold that a minimum of ten days' notice is required when the State files a separate pleading giving notice of enhancement allegations.
Id.
In the case before us, Appellant contends that the trial court erred by overruling his objection to the notice of enhancement and by charging the jury with the issue of the enhanced punishment. He also requests that this court adopt a bright-line rule. The State argues that although ten days' notice is presumptively reasonable, less than ten days is not presumptively unreasonable. The State also argues that Appellant must be required to show surprise and to show that he lacked adequate time to prepare. The State further argues that, because the pen packets were in the State's file and it has an open file policy, Appellant was aware that the State had the pen packets and could use them for enhancement purposes if it so decided.
The majority here has elected to again decline the opportunity to directly address the issues of whether an enhancement notice is a de facto amendment to an indictment and therefore subject to the same bright-line rules as such amendments to indictments or, if the enhancement notice is not a de facto amendment, the specific minimum number of days before trial a defendant is entitled to receive the enhancement notice.
See Williams v. State, 172 S.W.3d 730, 734 (Tex.App.-Fort Worth 2005, pet. ref'd); Hudson v. State, 145 S.W.3d 323, 326 (Tex.App.-Fort Worth 2004, pet. ref'd).
The State's argument that the mere fact that the pen packets were in the State's file provided Appellant with sufficient notice of intent to use them for enhancement purposes is unpersuasive. In Buchanan v. State, the Texas Court of Criminal Appeals explained that an open file policy was not sufficient to satisfy the rule 404(b) notice requirement because showing that the State is aware of evidence of extraneous offenses is not the same as showing an intent to introduce evidence of extraneous offenses. The Buchanan court said:
911 S.W.2d 11, 15 (Tex.Crim.App. 1995).
We cannot conclude that the mere opening of its file containing an offense report detailing extraneous evidence satisfies the requirement of giving notice "of intent to introduce" such evidence. The mere presence of an offense report indicating the State's awareness of the existence of such evidence does not indicate an "intent to introduce" such evidence in its case in chief.
Id.
Prior convictions may also be used for impeachment and, at the punishment phase, as evidence of extraneous bad acts. In both circumstances, a prior conviction may be too remote to be relevant. Prior convictions used to enhance punishment, however, may be used despite remoteness. The preparation for trial when the extraneous offenses are used as enhancements, then, is totally different from preparation when the extraneous offenses are used for impeachment or as evidence of extraneous bad acts at punishment. Merely storing pen packets in the State's open file does not constitute sufficient notice of intent to use the prior convictions for enhancement purposes.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1).
TEX. R. EVID. 609(b); Nethery v. State, 692 S.W.2d 686, 706 (Tex.Crim.App. 1985), cert. denied, 474 U.S. 1110 (1986).
Sanford v. State, 492 S.W.2d 581, 582-83 (Tex.Crim.App. 1973), overruled on other grounds, Simon v. State, 522 S.W.2d 929 (Tex.Crim.App. 1975).
Additionally, when an extraneous offense is used for enhancement, the State must plead and prove its allegations. The defendant must enter his plea to those allegations before the trier of fact. He must plead true or not true. After the close of punishment evidence, the enhancement issue must be submitted to the trier of fact under the Blakely-Ring-Apprendi line of cases handed down by the United States Supreme Court, holding that increasing the maximum punishment for an offense without a jury finding violates the Sixth Amendment right to a jury trial.
TEX. PENAL CODE ANN. § 12.42; Brooks, 957 S.W.2d at 34; see also Tinney v. State, 578 S.W.2d 137, 139 (Tex.Crim.App. [Panel Op.] 1979).
Blakely v. Washington, 542 U.S. 296, 304, 124 S. Ct. 2531, 2537 (2004); Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 2443 (2002); Apprendi v. New Jersey, 530 U.S. 466, 483, 120 S. Ct. 2348, 2359 (2000).
Consequently, we should squarely address the issues and join our sister court in Waco in holding that an enhancement notice that affects the range of punishment is a de facto amendment of the indictment. Because article 28.10(a) of the Texas Code of Criminal Procedure requires a minimum of ten days' notice for an amendment to an indictment, this court should hold that a minimum of ten days' notice is also required when the State files a separate pleading giving notice of enhancement allegations.
Hackett, 160 S.W.3d at 591.
TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (Vernon 1989).
A bright-line rule benefits everyone involved. The trial judges, prosecutors, defense attorneys, and defendants of the State of Texas are entitled to know what the rules are. They are also entitled to consistency. They should not have to guess whether an enhancement notice is timely. A notice that is timely in North Texas should be timely in South Texas. A notice that is untimely in West Texas should be untimely in East Texas. The timeliness of a notice of enhancement that can increase the minimum confinement from two to twenty-five years and the maximum confinement from ten or twenty years to ninety-nine years or life must be clearly understood and consistent. It should not be left up to the best guess of an appellate court, especially in light of the fact that we make that guess only after the parties and the trial court have expended the time, energy, and expense of a full trial.
In the case now before this court, Appellant received the maximum confinement for a second-degree felony although the underlying offense was only a third-degree felony. He did not receive ten days' notice of the enhancement allegation, violating his right to due process under the Sixth and Fourteenth Amendments. The State concedes that Appellant was harmed if the trial court erred in overruling his objection to the notice of enhancement because the upper range of confinement was increased from ten to twenty years. Appellant received twenty years' confinement. We should hold that Appellant suffered harm under rule 44.2(a) because the inadequate notice violated his right to due process. Even under rule 44.2(b), being subjected to and receiving twice the maximum confinement allowed for the charged offense affected Appellant's substantial rights.
See TEX. PENAL CODE ANN. § 12.33(a) (Vernon 2003).
See TEX. HEALTH SAFETY CODE ANN. § 481.115(c) (Vernon 2003).
See Sears, 91 S.W.3d at 453-55.
See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976).
See TEX. R. APP. P. 44.2(b); Hudson, 145 S.W.3d at 327.
Accordingly, I would sustain Appellant's sole issue, reverse the trial court's judgment on punishment, and remand this case to the trial court for a new punishment hearing absent the enhancement allegation based on Appellant's conviction in trial court cause number 88-86M. Because the majority refuses to address the real issue in this case — whether a post-indictment enhancement pleading constitutes a de facto amendment to the indictment — and because the majority refuses to provide necessary guidance to the trial bench and bar by clearly stating a bright-line rule for such notice, I must respectfully dissent.
See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (Vernon Supp. 2005).