COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-167-CR
CAMERON RAY BYRD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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OPINION
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I. INTRODUCTION
Appellant Cameron Ray Byrd entered open pleas of guilty to the offenses
of driving while intoxicated subsequent offense, evading arrest or detention
with a motor vehicle, and unauthorized use of a motor vehicle. Each count was
enhanced to a second degree felony by prior convictions, to which Byrd pled
true, and by an affirmative finding of the use of a deadly weapon, an
automobile. The jury assessed punishment at the maximum of twenty years’
confinement on each count, and the trial court sentenced Byrd accordingly,
with the sentences to run concurrently. Byrd complains on appeal that he was
denied due process because the State did not provide him with sufficient,
timely, and proper written notice of its intent to seek a deadly weapon finding.
We will affirm.
II. B ACKGROUND
On August 19, 2006, Byrd stole a 1995 Mercury Cougar from the parking
lot of a Sonic drive-in restaurant in Hood County, Texas. A witness saw Byrd
recklessly drive away in the car and immediately called 911. Byrd fled from the
responding police officers, resulting in a police chase through multiple cities and
at speeds up to 115 miles per hour. Law enforcement officers laid spike strips
in two separate locations in an attempt to end the dangerous car chase. Byrd
ran over both spike strips but continued driving for approximately three more
miles before stopping the car. Byrd stopped the car in a mobile home park and
fled on foot, hiding from the officers underneath a mobile home. The officers
found Byrd, pulled him out from underneath the mobile home, and made the
arrest. No one was injured during the chase.
The indictment included enhancement paragraphs based on Byrd’s prior
convictions, but it did not allege that Byrd used a deadly weapon during the
commission of the charged offenses. On February 22, 2007, the State faxed
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to Byrd’s defense counsel a notice of intent to seek a deadly weapon finding.
On March 7, 2007, the State faxed a second letter to counsel, reminding him
of the notice of intent letter faxed on February 22. The State did not file either
letter with the trial court before trial commenced, nor did it specify in either
letter the exact nature of the alleged deadly weapon.1
On March 19, 2007, during voir dire, the State addressed three times the
issue concerning the use of a car as a deadly weapon. After the jury was
sworn in, the trial court admonished Byrd on his guilty pleas and specifically
told Byrd that the State was seeking a deadly weapon finding. The trial court
asked Byrd if he understood that the State was seeking a deadly weapon
finding and the resulting ramifications, if proven. Byrd responded that he
understood the admonishments and, with that knowledge, stated that he still
desired to plead guilty. The trial on punishment then commenced.
At the conclusion of the first day of the punishment trial, counsel
objected to any evidence regarding a deadly weapon finding because, at that
1
… The first letter faxed to counsel on February 22, 2007, states in part:
“This letter serves as notice to you that the State intends to seek a deadly
weapon finding in the above-mentioned cause against your client.” The second
letter faxed to counsel on March 7, 2007, states in part: “The State will make
no offer on the above-mentioned case. Following please find the letter dated
February 22, 2007, wherein the State pulled the previous offer and gave deadly
weapon notice.”
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time, the State had not filed with the trial court a notice of intent to seek a
deadly weapon finding. Counsel also had caselaw prepared to submit to the
trial court on the notice issue. The State responded by asserting that it had
faxed counsel a notice of intent and sent a subsequent fax to counsel,
reminding him of the initial notice. The trial court overruled counsel’s objection
but agreed to look at counsel’s cases and revisit the issue if necessary.
At the beginning of the second day of the punishment trial, the State filed
with the court a notice of intent to seek a deadly weapon finding, specifically
stating that the deadly weapon was the 1995 Mercury Cougar. The State
attached both letters that were faxed to counsel as exhibits to the notice of
intent. The trial court stated that it had read the cases provided by counsel on
the previous day and had also conducted additional research on the issue.
Based on its research, the trial court concluded that the State had given notice
to Byrd in “some form,” referencing the two faxed letters to counsel. Counsel
made no objection at that time to the filing of the notice of intent. Counsel did
object, however, at the close of the evidence, stating that the State had made
an untimely filing and that the faxed letters were not specific as to the nature
of the deadly weapon. At no point did counsel request a continuance in
response to the deadly weapon allegation.
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The trial court attached to the jury charge the deadly weapon special
issue, and the jury found that Byrd had used the vehicle as a deadly weapon
during the commission of the charged offenses. The jury assessed punishment
at twenty years’ confinement on each count in the indictment, and the trial
court sentenced Byrd accordingly.
III. N OTICE OF INTENT TO S EEK A D EADLY W EAPON F INDING
Byrd argues that he was deprived of his constitutional right to due
process and due course of law under the federal and Texas constitutions
because the State filed an untimely, improper, and insufficient notice of intent
to seek a deadly weapon finding. See U.S. C ONST amends. V, XIV; T EX. C ONST.
art. I, §§ 13, 19.
A defendant is entitled to notice that the State will seek an affirmative
finding that a deadly weapon was used during the commission of the charged
crime. Brooks v. State, 847 S.W .2d 247, 248 (Tex. Crim. App. 1993); Ex
parte Patterson, 740 S.W.2d 766, 775 (Tex. Crim. App. 1987), overruled on
other grounds, Ex parte Beck, 769 S.W.2d 525, 528 (Tex. Crim. App. 1989).
This notice is firmly rooted in fundamental precepts of due process and due
course of law. Patterson, 740 S.W.2d at 774 n.7. A defendant has the right
to be informed, at a bare minimum, that a particular proceeding, over and above
the determination of guilt and sentencing, will occur, which may operate to
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further diminish the accused’s liberty interest. Id. The court of criminal appeals
has never held what constitutes timely notice in this context. We note,
however, that the Court has recently 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 that due process does
not require that notice of prior convictions be given before the trial on guilt
begins. See Villescas v. State, 189 S.W.3d 290, 293–294 (Tex. Crim. App.
2006) (stating that requiring notice to come before the trial on guilt ignores the
possibility that the trial court could take measures to cure the notice problem
by granting a continuance).
Regarding the type of notice required to be given, the court of criminal
appeals has held that a count in the indictment containing a deadly weapon
allegation sufficed to give a defendant notice of the State’s intent to seek an
affirmative finding of the use of a deadly weapon. Beck, 769 S.W.2d at
526–27. Shortly after Beck, the Court reaffirmed its decision in Patterson and
held that the State must plead its notice of intent to seek an affirmative finding
of the use of a deadly weapon. See Luken v. State, 780 S.W.2d 264, 266–67
(Tex. Crim. App. 1989). The Court then held that notice need not be contained
in the indictment; rather, a defendant is simply entitled to written notice in
some form that the use of a deadly weapon will be a fact issue at trial. Brooks,
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847 S.W.3d at 248; see also Ex parte Minott, 972 S.W.2d 760, 761 (Tex.
Crim. App. 1998) (citing Brooks and concluding that although he had not
received written notice of any kind and the indictment did not contain reference
to a deadly weapon, the defendant had received actual notice when he pled
guilty as part of a plea agreement that included an affirmative finding of a
deadly weapon); Sanders v. State, 963 S.W.2d 184, 188 (Tex. App.—Corpus
Christi 1998, pet. ref’d) (“[Notice] must be in writing and reasonably calculated
to inform the defendant [that] the use of a ‘deadly weapon will be a fact issue
at the time of prosecution.’”). In any event, the adequacy of constitutional
notice of the State’s intent to seek a deadly weapon finding depends largely on
the specific facts of a given case. Hocutt v. State, 927 S.W.2d 201, 203 (Tex.
App.—Fort Worth 1996, writ ref’d).
In this case, it is undisputed that the State faxed and Byrd’s counsel
received two letters regarding the State’s notice of intent to seek a deadly
weapon finding, the first of which the State sent approximately one month in
advance of trial. Also, on the first day of trial, counsel had caselaw prepared
to submit to the trial court specifically addressing the issue of the requirement
that the notice of intent be filed with the trial court. Further, Byrd twice
admitted to the trial court that he understood the State was alleging that he had
committed the offenses with the use of a deadly weapon. Although Byrd
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argues that, based on the advice of his defense counsel, he “merely agreed”
with the trial court that the State intended to prove that he committed the
offenses with a deadly weapon because he believed that the State had failed
to properly file the notice, the record does not support this claim.
This is not a case in which the defendant learned of the State’s intent to
seek a deadly weapon “only after all the evidence was in, both sides had
closed, and the charge was read to the jury.” See Patterson, 740 S.W.2d at
777. Defendants, like that in Patterson, are in effect “blindsided” because they
have “no prior indication that the nature of the weapon used was to be a
particular issue in the case.” See Whately v. State, 946 S.W.2d 73, 75–76
(Tex. Crim. App. 1997); Patterson, 740 S.W.2d at 777. But here, we cannot
say that Byrd was blindsided by the deadly weapon special issue in this case
because he had more than an “indication” of the State’s intent; he had written
notice that the State intended to seek a deadly weapon finding approximately
one month before trial. See Brooks, 847 S.W.3d at 248. And to satisfy the
pleading requirement, the State filed the notice with the trial court to support
the special issue submitted to the jury. See Luken, 780 S.W.2d at 266–67;
Patterson, 740 S.W.2d at 766–67.
Byrd’s due process claim is also weakened by his failure to ask for a
continuance to relieve any surprise or prejudice. See Whatley, 946 S.W.2d at
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76–77; Nolasco v. State, 970 S.W.2d 194, 197 (Tex. App.—Dallas 1998, no
pet.). Indeed, we find little merit in this due process claim when Byrd,
confronted with the issue of the deadly weapon allegation during the trial
court’s admonishments, could have, but did not, request a continuance.
Instead, he admitted that he understood the State was seeking a deadly
weapon finding because he knew that the notice, which he received twenty-
seven days earlier and on which he had prepared defense, was not filed. See
Whatley, 946 S.W.2d at 76–77; Nolasco, 970 S.W.2d at 197.
In sum, under the facts of this case, the State’s notice faxed to Byrd on
February 22, 2007, gave Byrd adequate written notice of its intent to seek a
deadly weapon finding. And, Byrd’s failure to ask for a continuance defeats
any due process claim he might have had. See Nolasco, 970 S.W.2d at 197.
Given these factual circumstances, the timing of the formal filing on the second
day of trial did not violate Byrd’s right to due process.2
2
… We acknowledge the holding in a similar case, Randle v. State, in
which the court of appeals held that a notice letter prepared by the State two
days prior to trial and filed on the day of trial was insufficient notice to the
defendant of the State’s intent to seek a deadly weapon finding. See No. 01-
91-00793-CR, 1994 WL 168267 at *2 (Tex. App.—Houston [1st Dist] May 5,
1994, writ ref’d) (not designated for publication). Relying on the requirement
stated in Luken that the State must plead the notice, the court stated that
“[a]ssuming the May 6 letter was otherwise sufficient as a pleading, it was not
filed before the date trial commenced.” Id. (citing article 28.10(a) of the Texas
Code of Criminal Procedure, providing that, after notice and upon request, a
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Byrd also claims that his due process rights were violated because the
State failed to adequately apprise him of the exact nature of the deadly weapon
allegation. Citing Hocutt, a prior decision from this court, Byrd contends that
because the State did not specify the nature of the deadly weapon in the faxed
notices, he reasonably believed that any enhanced punishment he might have
received was a result only of his prior convictions. See 927 S.W.2d at 203.
In Hocutt, the defendant, charged with driving while intoxicated, caused
an accident with another vehicle, resulting in minor injuries to the passengers
of both vehicles. See id. at 202. The State faxed and filed notice letters three
defendant is allowed not less than ten days to respond to an amended
indictment or information).
We first note that, unlike Randle, in which the State “prepared” a letter
two days prior to trial that might not have even reached the defendant by the
date of trial (an issue not addressed by the court), the State, in this case, sent
written notice via facsimile twenty-seven days before the start of trial. See id.
And, it is also undisputed that Byrd’s counsel received both notice letters.
Presumably, even if the State, in Randle, had actually filed the letter with the
trial court two days before trial, notice still might not have been timely. See
Hocutt, 927 S.W.2d at 202, 204 (holding that notice of intent to seek a deadly
weapon finding filed three days before trial was untimely). Secondly, we note
that notice of intent to seek a deadly weapon finding is not governed by article
28.10. See T EX. C ODE C RIM. P ROC. A NN. art. 28.10 (Vernon 2006). Notice of
a deadly weapon allegation, similar to notice of enhancements based on prior
convictions, which must also be pled, is based in the constitution, not the
statutes. See Villescas, 189 S.W.3d at 294; see also Patterson, 740 S.W.2d
at 774 n.7 (“[Notice of the State’s intent to seek a deadly weapon finding] is
that firmly rooted in fundamental precepts of due process and due course of
law.”).
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days before trial but did not specify the nature of the deadly weapon, the
automobile. Id. at 203. We held that the State’s notice was inadequate
because the State gave written notice only three days before trial, there were
no serious bodily injuries that resulted from the accident, a car is not a deadly
weapon per se, and the notice was not specific as to the nature of the deadly
weapon. See id. at 204. Like in Hocutt, there were no injuries resulting from
Byrd’s use of the vehicle, and the faxed notices did not specify the type of
deadly weapon involved. However, unlike in Hocutt, Byrd never requested a
continuance. See id. at 203. As held in Whately, when the defendant is not
blindsided by the deadly weapon allegation and the defendant fails to request
a continuance, there is no fundamental unfairness by failing to specify the type
of weapon involved. 946 S.W.2d at 75–76. Thus, because Byrd failed to
request a continuance and was not surprised or blindsided by the notice of
intent, we hold that Byrd’s claim that the he was prejudiced by the lack of
specificity in the notice must fail. See id.
We do not hold as a general rule that notice formally filed by the State on
the second day of trial or lacking specificity as to the type of weapon used is
constitutionally adequate. Rather, we hold that Byrd’s due process rights were
not violated when he received written notice twenty-seven days before trial,
which the State eventually filed with the trial court; admitted that he
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understood that the State was seeking a deadly weapon finding; had a prepared
defense ready on the first day of trial concerning the issue of filing the notice
as a pleading; and failed to ask for a continuance at any time before or during
the trial. Accordingly, we overrule Byrd’s sole issue.3
IV. C ONCLUSION
Having overruled Byrd’s sole issue on appeal, we affirm the trial court’s
judgment.
DIXON W. HOLMAN
JUSTICE
PANEL: CAYCE, C.J.; HOLMAN and WALKER, JJ.
CAYCE, C.J. and WALKER, J. concur without opinion.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: August 29, 2008
3
… We note that in Throneberry v. State we came to a different
conclusion when the State gave written notice to the defendant through an
informal letter over one year in advance of trial that it intended to use prior
convictions to enhance the defendant’s punishment. 109 S.W.3d 52, 59–60
(Tex. App.—Fort Worth 2003, no pet.). However, unlike here, the State in
Throneberry never filed the notice with the trial court as a pleading but instead
admitted the letter into evidence at the end of the guilt-innocence phase. See
id. at 59.
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