Robert Willard HUDSON, Jr., Appellant,
v.
The STATE of Texas, State.
No. 2-03-174-CR.
Court of Appeals of Texas, Fort Worth.
August 19, 2004.*324 Marsh & Odom, L.L.P., Fred Marsh, Denton, TX, for Appellant.
Bruce Isaacks, Criminal District Atty., Charles E. Orbison, Brent Bowen, Daniel Hoffman, Asst. Criminal District Attys., Denton, Matthew Paul, State Prosecuting Atty., Austin, TX, for State.
Panel A: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
OPINION
TERRIE LIVINGSTON, Justice.
Robert Willard Hudson, Jr. appeals his conviction for assault causing bodily injury. After a jury trial, the trial court sentenced him to ninety days' confinement and a $1,500 fine.
On appeal, Hudson raises five points that generally challenge the trial court's failure to submit to the jury an instruction on the law of defense of property and its imposition of an enhanced sentence because notice of enhancement was untimely. Because we determine that Hudson was not entitled to an instruction on defense of property at trial, we affirm his conviction. However, because we also determine that Hudson was harmed by the State's failure to provide timely notice of enhancement, we reverse the trial court's judgment on punishment and remand for a new punishment trial.
BACKGROUND FACTS
On May 7, 2002, Ricky Robles, a roofing superintendent, drove through a parking lot en route to a job site in Flower Mound. The parking lot was between a swimming pool under construction and a model home. Hudson was the supervisor of the construction site where the swimming pool was being built. As Robles drove through the parking lot, Hudson waved him down. Hudson told Robles that he could not drive through the parking lot. When Robles asked why, Hudson said, "Because I said so." Hudson further told Robles that he was the owner of the property. Robles said, "You're not the owner" and attempted to roll up his window and leave. Testimony differed as to whether Hudson then pulled Robles from his truck or whether Robles jumped out and attacked Hudson.
When police arrived, Hudson told Flower Mound police officer Ronnie Madeiros that Robles got belligerent, cursed at Hudson, grabbed and threw Hudson's cell phone, then jumped out of his truck and attacked Hudson. According to Robles, Hudson opened Robles's passenger door, grabbed Robles by his shirt, neck, and hair, and dragged Robles out of his truck. John Graham, an on-site electrician, agreed with Hudson's version of events that Robles came out of his truck and attacked Hudson, but could not say who grabbed whom first or who threw the first punch. Another on-site electrician, Douglas Bloxam, testified that "[w]hen [he] saw the truck, there was this Mexican on top of [Hudson] outside of the of the door of the truck" and he "noticed that [Hudson] was trying to keep Mr. Robles from hitting him." However, Hudson's immediate supervisor, Ryan Dillinger, testified that he saw a phone fly out of the passenger side of Robles's truck, then witnessed Hudson pulling Robles out of the truck and the two men beginning to wrestle on the ground.
The State later charged Hudson with assault on Robles, and a jury found him guilty.
ANALYSIS
I. Did the trial court err in failing to instruct the jury on defense of property?
An accused is entitled to an instruction on any defensive issue raised by *325 the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996); see Tex.Code Crim. Proc. Ann. arts. 36.14, 36.19 (Vernon 1981 & Supp.2004). However, if the evidence does not raise an issue on the defense, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App.1984). When there is no evidence of a belief that force is needed to defend property, a criminal defendant is not entitled to a jury instruction on defense of property. See Evans v. State, 876 S.W.2d 459, 465 (Tex.App.-Texarkana 1994, no pet.).
Here, Hudson was not entitled to an instruction on defense of property because there was no evidence that the use of force was immediately necessary to terminate a trespass or interference with property.[1] Robles testified that he intended to drive through the parking lot. There was no evidence that Robles threatened to remain on the property or damage it. In fact, the evidence shows that Hudson grabbed the window of Robles's truck, preventing Robles from leaving the property. In addition, Officer Madeiros testified that Hudson told him that Hudson confronted Robles because he was tired of people driving through the parking lot, which was private property.
Because we hold that Hudson was not entitled to a defense of property instruction, we overrule his first and second points.
II. Did the trial court reversibly err in assessing an enhanced sentence because notice of intent to seek an enhanced sentence was untimely?
Hudson's trial began on April 21, 2003, and the guilt-innocence phase was concluded April 22. The punishment phase began on April 29, 2003. The State did not file its "State's Notice of Intent to Seek Enhanced Punishment Under Section 12.43, Texas Penal Code" until April 29, 2003. According to the certificate of service, as well as Hudson's counsel, the notice was served on Hudson's counsel April 23, 2003.
The State argues that notice given six days before the beginning of the punishment phase of the trial represented timely notice of its intention to use prior convictions for enhancement purposes under section 12.43 of the Texas Penal Code. Tex. Penal Code Ann. § 12.43 (Vernon 2003). We disagree.
*326 An accused has a right to be advised that a greater penalty than is available for the charged offense is to be sought. Hollins v. State, 571 S.W.2d 873, 876 (Tex.Crim.App.1978). In Brooks v. State, the court of criminal appeals held that such notice need not be pled in the indictment itself to be considered proper notice, so long as the State pled its notice of intent to enhance "in some form" prior to trial. 957 S.W.2d 30, 34 (Tex.Crim.App.1997).
Here, the State's notice, which included evidence of three prior felony convictions, each specified by cause number, classification of offense, county of conviction, and date of conviction, was a sufficient pleading that gave notice of the prior convictions that would be used for enhancement of punishment. See Id. at 33-34; Sears v. State, 91 S.W.3d 451, 454-55 (Tex.App.-Beaumont 2002, no pet.). But cf. Throneberry v. State, 109 S.W.3d 52, 58-59 (Tex.App.-Fort Worth 2003, no pet.) (holding that informal letter sent to defendant's counsel was not a sufficient pleading and thus was not proper). However, we conclude that providing notice to Hudson's counsel six days before the punishment phase of the trial did not constitute timely notice.
As both the State and Hudson point out, there is no case law directly on point. However, the State refers to an unpublished case by our sister court in Dallas that held that notice given seven days before the guilt-innocence phase of trial represented "ample notice." Castilla v. State, No. 05-01-01776-CR, 2002 WL 31261741, at *4 (Tex.App.-Dallas Oct.10, 2002, no pet.) (not designated for publication). Here, notice was served on Hudson's counsel on April 23, 2003, one day after the conclusion of guilt-innocence.
Similarly, in Fairrow v. State, the court held that notice given on the day of the trial was not timely. 112 S.W.3d 288, 295 (Tex.App.-Dallas 2003, no pet.). And in Sears, the court held that notice given to the defendant sometime on Friday before the trial began on Monday did not satisfy the defendant's right to timely prior notice. 91 S.W.3d at 455.
While neither Fairrow nor Sears suggests a certain time frame, we agree with their reasoning that "[n]otice is presumptively `reasonable' if given at least ten days before trial." Fairrow, 112 S.W.3d at 294; Sears, 91 S.W.3d at 455; see Tex.Code Crim. Proc. Ann. art. 1.051(e) (Vernon Supp.2004) (providing that appointed counsel is entitled to ten days to prepare for a proceeding), art. 28.10(a) (Vernon 1989) (providing that, upon request, a defendant is allowed ten days to respond to an amended indictment or information); 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).
Here, although notice was given to Hudson's counsel six days before the punishment phase of the trial, no notice was given before guilt-innocence began. Therefore, relying on Fairrow and Sears, we hold that notice in this case was untimely.
Having determined that the trial court erred in enhancing Hudson's punishment, we must next address whether that error is reversible. See Tex.R.App. P. 44.2.[2] Because *327 of the enhancement, Hudson received a statutory minimum sentence of ninety days in jail. Misdemeanor assault carries a maximum sentence of one year, with no minimum sentence. See Tex. Penal Code Ann. §§ 12.21(2), 22.01(b) (Vernon 2003 & Supp.2004-05). But enhanced punishment for this offense carries a minimum ninety-day sentence with the same one year maximum. See id. § 12.43(a)(2).
The trial court assessed the minimum jail sentence possible for the enhanced offense. Without the enhancement, the trial court could have assessed a lower punishment closer to the minimum sentence for the charged offense. See Sims v. State, 84 S.W.3d 768, 781 (Tex.App.-Dallas 2002, pet. ref'd). Thus, we cannot conclude under either rule 44.2(a) or (b) that this error did not harm Hudson. Tex.R.App. P. 44.2(a), (b); see Fairrow, 112 S.W.3d at 295 (addressing harm under rule 44.2(b)); Sears, 91 S.W.3d at 455 (addressing harm under rule 44.2(a)); Sims, 84 S.W.3d at 781 (addressing harm for improper enhancement under both 44.2(a) and (b)).
The State contends that Hudson cannot show harm because he did not claim he was surprised by the notice of enhancement or that he was unable to prepare an adequate punishment defense. However, the record shows that, with the State's knowledge, the punishment phase was postponed until April 29 because Hudson's counsel had a hearing on April 23, a trial on April 24 and 25, and another hearing on April 28. The State had proposed holding the punishment phase immediately after guilt-innocence "if they'll [Hudson and his counsel] stipulate to the criminal history," but the trial court granted Hudson's request to postpone the punishment phase to April 29. Thus, it appears the State took advantage of the postponed punishment phase to file its notice of intent to enhance.[3]
We sustain Hudson's third and fourth points.
CONCLUSION
Because we hold that Hudson was not entitled to a defense of property instruction, we affirm the trial court's judgment as to Hudson's guilt. However, because we also hold that the State failed to give Hudson timely notice of its intent to seek an enhanced punishment and that Hudson was harmed by that failure, we reverse the trial court's judgment on punishment and remand to the trial court for a new trial on punishment.
NOTES
[1] See Tex. Penal Code Ann. § 9.41(a) (Vernon 2003) (providing that "[a] person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property"); see also id. § 9.43, which provides as follows:
A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection of the land or property;
(B) he has a legal duty to protect the third person's land or property; or
(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.
[2] While Hudson contends in a separate point that his Sixth and Fourteenth Amendment rights were violated, in addressing harm, he fails to argue this point. Hudson's basis for this argument includes only a reference to Sears. However, Sears merely states that this type of error is constitutional, but fails to provide any reasoning for its decision. 91 S.W.3d at 455. Because we conclude that it is error and is reversible under either rule 44.2(a) or (b), we do not address Hudson's fifth point. See Tex.R.App. P. 47.1.
[3] Although the State discussed with the trial court its intention to offer evidence of Hudson's prior convictions at punishment, it made no mention of any intent to use the convictions for enhancement purposes. See Tex.Code Crim. Proc. Ann. art. 37.07, ?3(a)(1) (Vernon Supp.2004) (providing that evidence of defendant's prior criminal history may be admitted into evidence during punishment).