No. 14-04-01002-CR
Memorandum Opinion filed January 12, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 209th District Court, Harris County, Texas, Trial Court Cause No. 975,174. Affirmed.
Panel consists of Justice FOWLER, EDELMAN, and GUZMAN.
EVA M. GUZMAN, Justice.
Appellant Willy Edward Neal was charged with possession of cocaine. After the trial court found him guilty, the court sentenced him to twenty-five years confinement in the Texas Department of Criminal Justice-Institutional Division. In his sole issue, appellant argues the trial court improperly enhanced his sentence by considering prior convictions that were not alleged in the indictment. Because appellant was given sufficient notice of the State's intent to prove enhancements to his sentence, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 23, 2004, Appellant was arrested and charged with possession of more than one and less than four grams of cocaine. The grand jury returned an indictment on April 26, 2004 that included two enhancement paragraphs for prior felony convictions. The enhancement paragraphs read as follows: Before the commission of the offense alleged above, (hereinafter styled the primary offense), on March 25, 1997 in Cause No. 737915, in the 248th District Court of Harris County, Texas, the Defendant was convicted of the felony of possession within intent to deliver a controlled substance. Before the commission of the primary offense, and after the conviction in Cause No. 737915 was final, the Defendant committed the felony of delivery of a controlled substance and was finally convicted of that offense on January 18, 2000, in Cause No. 549953, in the 248th District Court of Harris County, Texas. Although appellant had been convicted of the two offenses, the indictment misidentified the dates of the convictions. Accordingly, on July 14, 2004, the State filed a motion to amend the indictment to make the correction. The trial court granted the motion, but a new indictment reflecting the changes was never issued. The case was set for trial on October 5, 2004. Appellant elected a trial to the bench and at its conclusion, the trial court found him guilty as charged. Before appellant was arraigned in the punishment phase of the trial, appellant's counsel objected to the inclusion of the modified enhancement paragraphs that were never incorporated into a new indictment. The trial court overruled the objection. After finding both enhancements "true," the trial court sentenced appellant to twenty-five years in prison. II. DISCUSSION
In his sole issue, appellant argues that the trial court's grant of the State's motion to amend the indictment did not constitute an actual amendment of the indictment and accordingly, asks us to remand and instruct the trial court to render a new sentence. Because it is not necessary that enhancement paragraphs be included in the indictment, and because appellant had adequate notice of the State's intention to introduce evidence of prior felony convictions, we overrule appellant's sole issue. Although an accused has the right to be informed that the State seeks enhancement of the punishment for the charged offense, the notice does not need to be pleaded in the indictment because it is not an element of the primary offense. Calton v. State, ___ S.W.3d ___, ___ (Tex.Crim.App. 2005) (en banc) (citing Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997) (en banc)). Texas law merely requires that the State plead the enhancements "in some form." Brooks, 957 S.W.2d at 34. A motion to amend the indictment is a valid pleading for this purpose, and the trial court's grant of the motion constitutes requisite notice to the defendant. Id. at 34. Such notice, however, must enable the defendant "to find the record and make preparation for a trial of the question [of] whether he is the convict named therein." Hollins v. State, 571 S.W.2d 873, 875 (Tex.Crim.App. 1978) (citing Morman v. State, 127 Tex. Crim. 264, 265, 75 S.W.2d 887, 887 (1934)); see also Sears v. State, 91 S.W.2d 451, 454-55 (Tex.App.-Beaumont 2002, no pet.) (finding less than one full business day and two weekend days to be inadequate notice); Hudson v. State, 145 S.W.3d 323, 325 (Tex.App.-Fort Worth 2005, no pet. h.) (holding notice provided six days before the punishment phase was untimely). Here, neither the form of the pleading nor the timeliness of the notice was defective. The Court of Criminal Appeals established in Brooks that a motion to amend an indictment is a pleading sufficient to provide notice. Moreover, here, the trial court granted the State's motion nearly three months prior to trial. And, at the punishment hearing, appellant's counsel readily conceded, "the State gave us notice of the language prior to trial." Accordingly, we hold the trial court did not err and overrule appellant's sole issue. For the foregoing reasons, we affirm the judgment of the trial court.