Williams v. State

LEE ANN DAUPHINOT, Justice,

dissenting.

Because I see the thoughtful majority opinion and those it relies on as nudging criminal law down the slippery slope of gamesmanship decried in civil law, I must respectfully dissent.

Essentially, the majority notes that if the State provides the enhancement notice by adding it to the bottom of the indictment, a defendant is entitled to ten days’ notice unless he does not complain about *738the lack thereof.1 If, however, the State writes the same words on a separate piece of paper, seven or eight days’ notice is ample, even over a defendant’s objection that the vehicle allowing the shorter notice, that is, in this case the trial court’s ruling granting the State’s oral motion for continuance, prejudiced his case.

Enhancement allegations are not mere footnotes to a criminal case. Enhancement allegations implicate due process considerations regardless of how the State presents the allegations.2 Prior convictions can elevate a misdemeanor to a felony; for example, they are elements of the offense and, without dispute, must be pled in the indictment in felony cases of DWI,3 theft,4 and family violence assault.5

But prior convictions used as punishment enhancements can have the same effects on the liberty of the accused as those that are elements of the offense. Consider the following hypothetical situation. During the first semester of their junior year of high school, five seventeen-year-old buddies drank a few beers and decided to move ten calves from the new high school principal’s pasture into one of their uncle’s pastures as a prank. They got caught after being stopped on the highway by a deputy sheriff for suspicion of DWI. After a speedy jury trial, the five boys were found guilty of third-degree felony theft,6 and the trial court sentenced them to two years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.7 The boys earned good conduct time during their confinement, completed their G.E.D.s, applied to and were accepted by various universities in the State of Texas, and, after serving about eighteen months of their sentences, were released from prison in the spring, a couple of weeks before their former classmates’ graduation. The school board of their former high school passed a resolution to allow the five to walk across the stage with their former classmates. On the day of graduation, the principal coincidentally celebrated his sixtieth birthday.

Five years to the day later, the buddies, who had all graduated from college with honors, accepted respectable jobs, married and started their families, reunited at their high school reunion. They drank a few beers and reminisced. The next day, the now sixty-five-year-old principal discovered that ten of his emus were missing. A week later, the emus were discovered in the adjoining pasture, owned by the sheriff.

Suspicion focused on the five buddies, and even though the bottom had fallen out of the market for emus, the grand jury *739indicted the five young men for second-degree felony theft.8

On a Thursday afternoon at 4:30 p.m., eight days before the initial trial setting, the prosecutor faxed a notice of enhancement to each defense lawyer on the case, indicating that if convicted, each defendant’s punishment would be enhanced because of his prior conviction for stealing the calves. Each legal assistant of each lawyer dutifully placed each notice of enhancement in each lawyer’s chair. Meanwhile, the lawyers, all board-certified, were attending and speaking at the annual TCDLA conference. They returned to their respective homes in their respective cities late Sunday night. After making the rounds at their respective district courthouses on Monday morning, they returned to their offices after lunch and found the documents in their chairs. Three-and-a-half days before trial, the lawyers discovered that their twenty-three-year-old clients were facing life imprisonment.9 The trial court denied their timely joint oral motion for continuance.

How can an appellate court claim, without winking at due process guarantees of the law, that a criminal defendant whose punishment may be so increased is not entitled to the same preparation time as the defendant who is given the same notice on a different piece of paper? There exists a doctrine called the salami theory: You may slice the salami often, but if you slice it thin each time, no one notices until the salami is mostly or entirely gone.10

In Texas, it is well-settled that

the purpose of an indictment is to give the defendant notice of the specific offense with which he is charged and to enable the court, upon conviction, to pronounce the proper judgment, and to enable the accused to plead the judgment that may be given upon it in bar of any further prosecution for the same offense.11

Included in the notice requirement are the elements of the offense and the degree of the offense that establishes jurisdiction and the range of punishment.12 Historically, the pleadings necessary to enhance the range of punishment were contained in the indictment.13 When the State failed to *740include the enhancement pleadings in the indictment in Brooks, the Texas Court of Criminal Appeals held that, although the State must plead the enhancement allegations, the pleadings do not have to appear in the indictment:14

When Long was decided, indictments were the only pleadings of the State. The Long court was concerned that failing to include enhancements in the indictment “would, in effect, do away with criminal pleadings.” Further, when Long was decided, the law required the State to plead “whatever matter affects the degree or kind of punishment.” By contrast, statute now permits the State to have other pleadings, and Sharp [v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986)] eliminated the requirement that an indictment plead punishment issues. Moore [v. State, 154 Tex.Crim. 307, 227 S.W.2d 219 (Tex.Crim.App.1950)] held that prior convictions used for enhancement must be pled but did not categorically say that the pleading used must be an indictment. Sigler [v. State, 143 Tex.Crim. 220, 157 S.W.2d 903 (Tex.Crim.App. 1941)] had nothing to do with whether enhancements must be pled but held that such enhancements do not implicate double jeopardy concerns. In fact, a reading of Sigler indicates that [Ex parte] Patterson [, 740 S.W.2d 766 (Tex.Crim.App. 1987)] apparently cited it as adverse authority on whether enhancements should be included in an indictment because of Sigler’s holding that enhancements are not elements of the offense but historical facts relating to punishment.
We note that the concurring opinion in Patterson also maintained that enhancement allegations must be contained in an indictment and cited four additional cases in support of the idea that “proper notice” must be given. Coleman [v. State, 577 S.W.2d 486 (Tex.Crim.App. 1979)] and Bevins [v. State, 422 S.W.2d 180 (Tex.Crim.App.1967)] held merely that enhancements need not be alleged with the same particularity as the primary offense in an indictment; they are not direct authority for the proposition that an indictment must refer to such enhancements. Parasco [v. State, 309 S.W.2d 465 (Tex.Crim.App.1958)] and Rogers [v. State, 168 Tex.Crim. 306, 325 S.W.2d 697 (Tex.Crim.App. 1959)] did purport to hold that prior convictions used for enhancement must be alleged in the indictment. But Parasco⅝ holding was premised in part on the notion that the prior conviction in the particular case constituted an element of the offense. This part of Paras-co’s holding was subsequently overruled. Due to its holding that the prior conviction was an element of the offense, its alternative holding that enhancements must be alleged in the indictment could be viewed as mere dicta. Moreover, Parasco cited no authority for this alternative holding and gave no reasoning other than to characterize alleging the enhancement offense in the indictment as “proper notice.” And Rogers relied solely upon Parasco as authority for its holding.
The theme through all of these cases appears to be that a defendant is entitled to notice of prior convictions to be used for enhancement. But alleging an enhancement in the indictment is not the only reasonable method of conveying such notice. Even Judge Clinton, the author of the majority opinion in Patterson, has subsequently maintained that enhancement paragraphs do not have to be in the indictment:
*741We simply observed in Patterson that the enhancement paragraphs must be pled somewhere, and, as the court of appeals points out, when the seminal case on enhancement paragraphs was decided, an indictment was the only pleading available to the State. We did not necessarily indicate that an enhancement paragraph must be supported by a grand jury finding, and in fact we expressly held that a deadly weapon allegation need not emanate from a grand jury finding.
Hence, we conclude that, to the extent prior cases have indicated that enhancement paragraphs must be pled in the indictment, those cases did not survive our decisions in Sharp and Rosales [v. State, 748 S.W.2d 451 (Tex.Crim.App.1987)]. As with deadly weapon findings, prior 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. In this case, the requisite notice was conveyed by the State’s motion and the trial court’s order.15

In his concurring opinion, Judge Mansfield contended,

[I]f the State intends effectively to increase the actual amount of prison time the accused will serve if he is convicted by seeking an affirmative deadly weapon finding, then the accused must be provided adequate advance notice so he can prepare a defense to the State’s allegation that he used or exhibited a deadly weapon. Indeed, failure to provide such adequate notice in advance may well violate the accused’s due process and due course of law rights under the United States and Texas Constitutions. Similarly, so that the accused is provided a reasonable opportunity to contest the validity of prior convictions the State intends to use for enhancement purposes, he must be given adequate advance notice of the State’s intent to do so.16

Slowly, Texas courts, not the legislature, have decided that the indictment no longer must provide the requisite punishment notice and that some constantly changing number of days provides sufficient, yea ample notice of the State’s intent to increase exponentially the maximum punishment a jury or a judge may assess. But notice must still be given and must be given in a timely manner. The legislature has mandated that a defendant’s appointed counsel in a criminal case, even a probation revocation, be given ten days to prepare for trial.17 Is it proper for this court to circumvent the clear intent of the legislature by modifying the manner of providing notice? That is, is it proper to use a loosening of the manner in which notice must be given to accomplish a shortening of trial preparation time? In enacting article 1.051(e), the legislature has suggested that due process is satisfied by ten days’ notice. Respectfully, I believe that the legislature should assume the responsibility of stating clearly how enhancement notices must be pled and how much time a defendant in a criminal case must be afforded to prepare to defend against en*742hancement allegations that can potentially elevate his maximum punishment from ten years’ incarceration to life imprisonment.18 The gradual erosion of the due process protections afforded by requiring timely notice of the allegations against which a defendant must defend should be addressed by the legislature.

I would hold that the trial court abused its discretion by granting the State’s oral motion for continuance made on the day the case was set for trial because the prejudice that Appellant was required to show was obvious — his exposure increased fivefold, from twenty years to life. I would further hold this abuse of discretion harmful under Texas Rule of Appellate Procedure 44.2(a) because I believe that Appellant’s right to due process was violated.19 Even under Texas Rule of Appellate Procedure 44.2(b), however, I would hold that the error was sufficiently harmful: Appellant’s sentence of forty years’ confinement is double the maximum amount of confinement he faced absent the trial court’s error.20

Because I perceive the salami to have been sliced too often, although the cut has been thin each time, I must respectfully dissent from the majority opinion.

. See majority op. at 735.

. See, e.g., Ex parte McAtee, 586 S.W.2d 548, 550 (Tex.Crim.App.1979); McNatt v. State, 152 S.W.3d 645, 653 (Tex.App.-Texarkana 2004, pet. filed); Sears v. State, 91 S.W.3d 451, 455 (Tex.App.-Beaumont 2002, no pet.).

. Tex Penal Code Ann. § 49.09(b)(2) (Vernon Supp.2004-05); Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App.1999).

. Tex. Penal Code Ann § 31.03(e)(4)(D) (Vernon Supp.2004-05); Gant v. State, 606 S.W.2d 867, 871 (Tex.Crim.App. [Panel Op.] 1980).

. Tex Penal Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp.2004-05); Sheppard v. State, 5 S.W.3d 338, 340 (Tex.App.-Texarkana 1999, no pet.).

. See Tex Penal Code Ann. § 31.03(a), (b), (e)(5) (providing that theft of ten or more head of "cattle, horses, or exotic livestock or exotic fowl” in one transaction is a third-degree felony).

. See id. § 12.34(a) (Vernon 2003).

. See id. § 31.03(f)(3) (upgrading the offense one level if the owner is an "elderly individual”); § 31.01(10) (Vernon Supp.2004-05) (referring to definition in section 22.04(c)); § 22.04(c) (Vernon 2003) (providing that an elderly person is "a person 65 years of age or older”); see also Tex. Agric. Code Ann. § 142.001(5) (Vernon 2004) (defining exotic fowl as "avian species that is not indigenous to this state”).

. See Tex. Penal Code Ann. § 12.42(b) (Vernon Supp.2004-05) (providing that "[i]f it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony”).

. See, e.g., Almota Farmers Elevator and Warehouse Co. v. United States, 409 U.S. 470, 480, 93 S.Ct. 791, 797-98, 35 L.Ed.2d 1 (1973) (Powell and Douglas, JJ., concurring) ("[I]t would be unjust to allow the Government to use 'salami tactics’ to reduce the amount of one property owner’s compensation by first acquiring an adjoining piece of property or another interest in the same property from another property owner."); Huhler v. City of Corpus Christi, 564 S.W.2d 816, 821 (Tex.Civ.App.-Corpus Christi 1978, writ ref’d n.r.e.) ("Plaintiff contends that by completing such projects in stages, the defendants are using the 'old salami technique' by gradually depriving him of his land without instituting condemnation proceedings or paying just compensation.’’).

. Sledge v. State, 953 S.W.2d 253, 263 (Tex.Crim.App.1997); see also TexCode Crim. Proc. Ann. arts. 21.04, 21.11 (Vernon 1989) (defining the certainty required in an indictment).

. See, e.g., Few v. State, 588 S.W.2d 578, 585 (Tex.Crim.App. [Panel Op.] 1979).

. Long v. State, 36 Tex. 6, 10 (1871).

. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App.1997).

. Id. at 33-34 (citations omitted).

. Id. at 34 — 35 (Mansfield, J., concurring).

. TexCode Crim. Proc. Ann. art. 1.051(e) (Vernon 2005) (providing that appointed counsel is entitled to ten days to prepare for a proceeding); see Rojas v. State, 943 S.W.2d 507, 511 (Tex.App.-Dallas 1997, no pet.) (holding that appointed counsel is entitled to ten days to prepare for probation revocation proceeding); see also Campbell v. State, 456 S.W.2d 918, 920 n. 3 (Tex.Crim.App.1970) (holding that probationer is entitled to copy of revocation motion at least ten days before hearing).

. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp.2004-05) (providing the “three strikes” law).

. See Tex.R.App. P. 44.2(a).

. See Tex.R.App. P. 44.2(b).