IN THE
TENTH COURT OF APPEALS
No. 10-11-00278-CR
LARRY LYNN CARSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2011-901-C1
MEMORANDUM OPINION
Larry Lynn Carson pleaded guilty without the benefit of a plea bargain
agreement to the offense of possession of a controlled substance. A jury was empaneled
for punishment and assessed punishment at twenty years confinement. We affirm.
Enhancement
In the first issue, Carson argues that it was error for the trial court to enhance the
punishment range from a second degree felony to a first degree felony because he
entered a plea of true to a lesser included offense contained within the State’s notice of
enhancement and that the evidence at trial did not support the enhancement allegation.
The State provided Carson with notice of intent to enhance the punishment range. The
notice stated that:
On or about August 1, 2005, the Defendant was convicted of the offense of
Manufacture/Delivery of a Controlled Substance in Cause Number
04181K368, in the 368th Judicial District Court of Williamson County,
Texas.
At the hearing, the trial court read the enhancement allegation as stated in the
notice. Carson informed the trial court that he was convicted of possession of a
controlled substance. The trial court stated “it might have been originally charged as
[manufacture/delivery], but the actual conviction was for possession. You may plead
true or not true to that allegation.” (emphasis added) Carson entered a plea of true.
The judgment in Cause Number 04-181-K368 reflects that Carson entered a plea of
guilty to the lesser included offense of possession of a controlled substance.
Carson argues that there is a fatal variance between the notice provided and the
evidence presented at the hearing. He contends that his variance claim should be
considered a challenge to the sufficiency of the evidence per Jackson v. Virginia, 443 U.S.
307 (1979).
Prior convictions alleged for enhancement are not required to be pleaded with
the same particularity as the primary offense. Freda v. State, 704 S.W.2d 41, 42 (Tex.
Crim. App. 1986). A variance between an allegation in an enhancement paragraph and
the proof introduced at trial is material only if it would mislead a defendant to his
prejudice. Freda v. State, 704 S.W.2d at 42.
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The notice provided Carson with the correct trial court cause number, date, and
county. At the hearing, Carson himself acknowledged that he had a felony conviction
in that cause number. He pointed out to the trial court that the conviction was for a
lesser included offense. The trial court noted that the conviction was for possession of a
controlled substance, and Carson pleaded true to that allegation. Carson has not shown
that he was misled or surprised by the enhancement allegations. See Cole v. State, 611
S.W.2d 79, 82 (Tex. Crim. App. 1981). We find that any variance between the notice
provided and the evidence at the hearing was not material. We overrule Carson’s first
issue.
Ineffective Assistance
In his second issue, Carson argues that he received ineffective assistance of
counsel. To determine if trial counsel rendered ineffective assistance, we must first
determine whether Carson has shown that counsel's representation fell below an
objective standard of reasonableness and, if so, then determine whether there is a
reasonable probability that the result would have been different but for counsel's errors.
Strickland v. Washington, 466 U.S. 668 (1984). We must indulge a strong presumption
that counsel's conduct fell within the wide range of reasonable professional assistance,
and Carson must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d
503, 508-09 (Tex. Crim. App. 1991). An allegation of ineffective assistance must be
firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
Carson v. State Page 3
Carson specifically argues that his trial counsel was ineffective in failing to file a
request for notice of prior bad acts and in allowing him to enter a plea of true to the
enhancement allegations when there was no proof to support the allegation. The record
shows that on June 9, 2011, the State filed a “Notice of Intent to Use” pursuant to Rules
404 and 409 of the Texas Rules of Evidence and Article 37.07 of the Code of Criminal
Procedure. The notice detailed thirteen prior bad acts committed by Carson, and the
certificate of service states that it was delivered to his trial counsel. Because trial
counsel received notice from the State, Carson has not shown that he was ineffective in
failing to request such notice.
At the hearing and after some clarification, Carson entered a plea of true to the
enhancement allegation for the felony offense of possession of a controlled substance.
Carson’s statement at the hearing indicated that he was not surprised by the allegation
and that he was prepared to enter a plea of true to the allegation. Carson has not shown
that his trial counsel was ineffective in allowing him to plead true to the enhancement
allegation. We overrule Carson’s second issue.
Guilty Plea
In the third issue, Carson complains that the trial court failed to give the
admonishments in accordance with Article 26.13 of the Code of Criminal Procedure
prior to accepting his plea of guilty. The trial court asked Carson if he understood the
charges against him. Carson responded affirmatively and waived the reading of the
indictment. The trial court then asked Carson how he wished to plead, and Carson
entered a plea of guilty. The trial court later stated, “This is the first time the Court has
Carson v. State Page 4
heard that you intended to plead guilty in this matter.” The trial court then asked
Carson if he is pleading guilty because of any promises or threats, if he is an American
citizen, and if he is pleading guilty because he committed the offense. The trial court
also informed Carson of the punishment range for the offense.
In admonishing the defendant, substantial compliance by the court is sufficient,
unless the defendant affirmatively shows that he was not aware of the consequences of
his plea and that he was misled or harmed by the admonishment of the court. TEX.
CODE CRIM. PRO. ANN. art. 26.13 (c) (West Supp. 2011). There was no plea bargain
agreement, and Carson elected to have a jury assess punishment. Therefore
admonishments on punishment recommendations were not relevant. There is nothing
in the record to indicate Carson was not mentally competent. The record shows that the
trial court substantially complied with the admonishments in Article 26.13. Carson has
not shown that he was harmed or misled by the admonishments of the court. We
overrule Carson’s third issue.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirm
Opinion delivered and filed January 4, 2012
Do not publish
[CR25]
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