Affirmed and Opinion filed September 13, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00558-CR
BILLY JOE GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1291002
OPINION
A jury convicted appellant Billy Joe Garza of aggravated robbery, found an
enhancement ―true,‖ and assessed punishment at 85 years‘ confinement. In his sole issue
on appeal, appellant contends the trial court should not have instructed the jury about the
enhancement because the State did not provide timely, adequate notice of its intent to
enhance his sentence. We affirm.
BACKGROUND
Appellant robbed a convenience store employee at gunpoint, and he was indicted
in cause number 1291002 for this aggravated robbery. The indictment does not contain
an enhancement paragraph.
On May 2, 2011, the trial court granted the State‘s ―motion to transfer and adopt
prior motions to new cause number,‖ which asked the court to incorporate and apply to
cause number 1291002 all motions and notices previously filed under cause numbers
1229073, 1229074, and 1228957.
During voir dire on May 9, 2011, the court informed the venire about the possible
punishment ranges applicable in the case: an aggravated robbery generally caries a
punishment of 5 to 99 years imprisonment,1 but the range may be 15 to 99 years with one
prior felony conviction2 and 25 to 99 years with two prior felony convictions. 3 A jury
found appellant guilty on May 10.
At the beginning of the punishment phase on May 11, appellant‘s counsel noted
that the State intended to enhance appellant‘s minimum sentence to 15 years based on a
single prior felony conviction. Counsel objected ―to the State using any of the
enhancements that they have,‖ explaining that the indictment in this case does not include
an enhancement paragraph and ―there is no other sufficient notice that was given to the
defense to enable him or his counsel to adequately prepare to defend him against the
possible habitual offender status.‖
The State responded that appellant received notice on several occasions in prior
trials. Appellant‘s trial counsel acknowledged that there was ―an extraneous notice that
was filed‖ in cause number 1228954, but not in any of the cause numbers identified in the
State‘s motion to transfer and adopt prior notices in the three other cause numbers.
1
See Tex. Penal Code Ann. §§ 12.32(a), 29.03(b) (Vernon 2011).
2
See Tex. Penal Code Ann. § 12.42(c)(1) (Vernon Supp. 2012).
3
See Tex. Penal Code Ann. § 12.42(d).
2
The trial court ruled that appellant had ample actual notice of the prior offenses
and granted appellant a running objection. Counsel did not move for a continuance, but
he explained, ―I still don‘t know what they‘re going to try to use for enhancements. . . .
I‘ve been given notice of a number of them, but I don‘t know even at this point in time
what it is they‘re going to rely on and try to use to enhance his sentence and to what
degree.‖ The State said it sought enhancement based on a burglary of a habitation, and
the State identified the cause number, court, and date of the prior conviction.
Appellant pleaded ―not true‖ in front of the jury. The State‘s fingerprint expert
testified that appellant‘s thumbprint matched the thumbprint in the pen packet containing
the judgment of appellant‘s conviction in the burglary case. When the State offered the
exhibit into evidence, appellant‘s counsel said, ―Without objection.‖ Counsel did not
cross-examine the State‘s witness.
The jury found the enhancement allegation true and assessed punishment at 85
years‘ imprisonment.
ANALYSIS
In his sole issue, appellant argues the trial court ―should have granted [his]
objection to the inclusion of the language in the jury charge regarding [appellant] being
subject to an enhanced penalty range.‖ Appellant contends that although the indictments
filed in the other cause numbers contain enhancement paragraphs, none of those cause
numbers include a separate ―notice of intent to use extraneous offenses for purposes of
enhancement.‖ He contends further that ―the only actual specific notice given to [him] as
to which possible enhancement might be used against him was only given seconds before
his punishment hearing started.‖
When the State seeks to enhance a defendant‘s punishment with evidence of a
prior conviction, ―‗[t]he accused is entitled to a description of the judgment of former
conviction that will enable him to find the record and make preparation for a trial on the
question of whether he is the named convict therein . . . . and if possible show there is a
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mistake in identity, or that there was no final former conviction or the like.‘‖ Villescas v.
State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006) (quoting Hollins v. State, 571
S.W.2d 873, 875 (Tex. Crim. App. 1978)). ―[P]rior convictions used as enhancements
must be pled in some form, but they need not be pled in the indictment — although it is
permissible and perhaps preferable to do so.‖ Brooks v. State, 957 S.W.2d 30, 34 (Tex.
Crim. App. 1997).
This right to notice is rooted in due process. Villescas, 189 S.W.3d at 293. Under
a due process analysis, the issue is ―whether appellant received sufficient notice of the
enhancements so that he had an opportunity to prepare a defense to them.‖ Pelache v.
State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010). We must ―look to the record to
identify whether appellant‘s defense was impaired by the timing of the State‘s notice.‖
Id. ―[T]he determination of whether proper notice of enhancements was given does not
require that notice be given within a particular period of time before trial or before the
guilt phase is completed.‖ Id. As a general rule, due process is satisfied if the State gives
notice at the beginning of the punishment phase and the ―defendant has no defense to the
enhancement allegation and has not suggested the need for a continuance in order to
prepare one.‖ Villescas, 189 S.W.3d at 294.
Appellant contends, and the State does not dispute, that a ―notice of intention to
use evidence of prior convictions and extraneous offenses‖ could be found only in the file
for cause number 1228954. The caption of the notice identifies not only cause number
1228954, but also the three cause numbers identified in the State‘s transfer motion.
Appellant‘s trial counsel informed the trial court of these facts, and the trial court found
that ―there has been ample actual notice.‖ We conclude that the record supports this
finding.
The State‘s notice of intention to use prior convictions and extraneous offenses,
and several amended notices also in the record before this court, include the following
paragraph: ―Pursuant to Rules 404(b) and 609 of the Texas Rules of Criminal Evidence
and section 37.07 of the Texas Rules of Criminal Procedure, the undersigned [ADA]
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hereby gives notice to the Defendant . . . that the State intends to offer evidence of prior
convictions . . . to impeach the testimony of and/or enhance the range of punishment
for the Defendant . . . .‖ (emphasis added). The documents identify appellant‘s burglary
conviction ultimately used for enhancement, listing the cause number, county of the
convicting court, district court number, and conviction date. These documents provided
appellant with adequate notice that his sentence could be enhanced by the burglary
conviction. See Thompson v. State, Nos. 01-06-01084-CR, 01-06-01085-CR, 2008 WL
2756596, at *4 (Tex. App.—Houston [1st Dist.] July 17, 2008, pet. ref‘d) (mem. op., not
designated for publication) (Adequate notice was provided when the State filed a ―notice
of intention to use evidence of prior convictions and extraneous offenses‖ that identified
the State‘s intention to use the prior convictions for ―impeachment purposes and/or to
‗enhance the range of punishment of the Defendant.‘‖).
Further, appellant received additional notice of the enhancement at the beginning
of the punishment hearing when the State read aloud the enhancement allegation.
Appellant did not request a continuance in the trial court to investigate or prepare a
possible defense, and although appellant pled ―not true‖ to the enhancement allegation,
he does not contend on appeal that he has any possible basis for challenging the State‘s
evidence of the prior conviction.
Under these circumstances, we find no due process violation. See Hughen v.
State, 265 S.W.3d 473, 481–82 (Tex. App.—Texarkana 2008) (despite claim of
inadequate notice of enhancement, due process was satisfied when the defendant pleaded
―not true‖ to the enhancement allegation but there was nothing in the record, and the
defendant did not argue, that the evidence of the prior conviction was inadequate or that
the offense used to enhance his sentence was defensible in any way) aff’d, 297 S.W.3d
330 (Tex. Crim. App. 2009); Ketchum v. State, 199 S.W.3d 581, 592–93 (Tex. App.—
Corpus Christi 2006, pet. ref‘d) (―Ketchum did not state that a continuance was necessary
to discover or prepare a defense and, accordingly, he received the notice minimally
required to satisfy due process;‖ noting that a trial court may ―cure the notice problem by
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granting a continuance‖); Thompson, 2008 WL 2756596, at *5 (―State‘s notice to
enhance appellant‘s sentence with his prior convictions [given] at the beginning of the
punishment hearing satisfied constitutional due process requirements and was therefore
timely;‖ the defendant ―neither offered a defense to the enhancements nor requested a
continuance in order to prepare a defense‖); see also Mayfield v. State, 219 S.W.3d 538,
540 (Tex. App.—Texarkana 2007, no pet.) (due process satisfied when notice given
during voir dire; defendant did not seek a continuance and pled true to the enhancement);
Callison v. State, 218 S.W.3d 822, 825–26 (Tex. App.—Beaumont 2007, no pet.) (due
process satisfied when the record does not suggest the defense was impaired by the
timeliness of the State‘s notice; defendant pled true to the enhancement and did not
request additional time, object to the pen packet, or assert that he was unprepared).
Appellant suggests that ―it is difficult to imagine that a few seconds of notice is of
any practical usefulness to an accused and therefore cannot be considered reasonable.‖
Appellant further notes that the jury was told during voir dire about a punishment range
that was not even possible in this case, i.e., a minimum sentence of 25 years. But nothing
in the record or appellant‘s brief suggests that his defense was impaired by the State‘s
allegedly late notice. We agree it is preferable for the State to include enhancement
allegations in the indictment or to provide notice as early as possible. See Brooks, 957
S.W.2d at 34. Nonetheless, Pelache and Villescas are clear: notice is timely when given
at the beginning of the sentencing hearing if an appellant does not suggest there is a
successful defense and did not request a continuance. Because appellant has done
neither, the trial court properly instructed the jury on the enhancement issue.
We overrule appellant‘s sole issue.
CONCLUSION
The trial court‘s judgment is affirmed.
/s/ William J. Boyce
Justice
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Panel consists of Justices Boyce, Christopher, and Jamison.
Publish — Tex. R. App. P. 47.2(b).
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