Affirmed as Modified; Opinion Filed May 29, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00454-CR
IVAN ANGEL MARES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F-1263086-J
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Evans
Opinion by Justice Fillmore
A jury found appellant Ivan Angel Mares guilty of unlawful possession of a firearm by a
felon. The trial court assessed punishment of five years’ confinement. In a single issue, Mares
contends the trial court erred in overruling his objection to the State’s “untimely amendment of
the indictment” to enhance Mares’s punishment. We modify the trial court’s judgment to reflect
Mares’s conviction for violation of section 46.04 of the penal code; as modified, we affirm the
trial court’s judgment.
Background1
On December 4, 2012, Mares apparently shot himself in the leg accidentally with a .38
caliber pistol. Mares was charged with unlawful possession of a firearm by a felon. See TEX.
PENAL CODE ANN. § 46.04(a)(1) (West 2011).
On the first day of trial, the trial court considered Mares’s objection that the State’s notice
of intent to enhance punishment was untimely:
The Court: Mr. Mares, you’re here today charged with unlawful possession of a
firearm by a felon. That offense is normally a third-degree felony. The range of
punishment would be two to ten years in the penitentiary and a fine of up to
$10,000.
It’s my understanding that the State of Texas has filed a notice today
indicating that they intend to – are seeking to enhance you; is that correct?
Prosecutor: Yes, Judge. That’s correct.
The Court: So the range of punishment is two to 20 years in the penitentiary and
a fine of up to $10,000.
You understand that?
Mares: Yes, your Honor.
The Court: And, [defense counsel], you had an objection you wanted to put on
the record regarding that?
Defense Counsel: Yes, your Honor. My objection is this; that this is – this is
legal surprise and this is – we object to the fact that the prosecutor is only filing it
the day of trial, the enhancement. He could have done it at any time before.
Obviously, this charge, is felon – is unlawful possession of a firearm by a
felon. So it’s obvious that there was – had to have been a felony in the past.
[The State] even list[s] that on the indictment; however, they never filed
the enhancement and we object as it being prejudicial to our client that at this last
minute for an enhancement to be filed.
1
Because Mares has not challenged the sufficiency of the evidence to support his conviction, we recite only those facts necessary to address
his issue on appeal.
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The Court: Now, [prosecutor], this enhancement paragraph is not the same
paragraph as the –
Prosecutor: It’s not, Judge. The indictment alleges an injury to a child
conviction. The notice of intent to enhance alleges a prior [unlawful possession
of a firearm by a] felon.
The Court: Okay. All right. Your objection is overruled.
So, Mr. Mares, you understand that the range of punishment on this
offense is two to 20 years in the penitentiary if you’re found guilty of it. You
understand that?
Mares: Yes, ma’am.
After overruling Mares’s objection to the notice of intent to enhance punishment, the trial court
indicated it would then hear a motion to suppress Mares had filed. The State and defense
counsel indicated they were ready to proceed, and Mares did not seek a continuance of the trial.
Mares testified in the guilt-innocence phase of trial. He acknowledged his May 4, 2009
conviction and imprisonment for unlawful possession of a firearm by a felon.
A jury found Mares guilty of the December 4, 2012 offense of unlawful possession of a
firearm by a felon. At commencement of the punishment phase of trial before the court, Mares
pleaded “true” to the May 4, 2009 conviction for unlawful possession of a firearm by a felon
alleged in the State’s notice of intent to enhance punishment. Without objection by Mares, a
certified copy of Mares’s May 4, 2009 judgment of conviction for unlawful possession of a
firearm by a felon was admitted in evidence. Mares testified at the punishment phase of trial.
He acknowledged he pleaded guilty to the May 4, 2009 offense of unlawful possession of a
firearm by a felon and that he knew he was not supposed “to be around no guns.”
The trial court found the alleged enhancement to be true. Punishment was enhanced
under the provisions of section 12.42(a) of the penal code. See TEX. PENAL CODE ANN.
§ 12.42(a) (West Supp. 2014) (except as provided by section 12.42(c)(1), if shown on trial of
felony of third degree that defendant has previously been finally convicted of a felony other than
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a state jail felony punishment under section 12.35(a), on conviction, defendant shall be punished
for a second degree felony). The trial court assessed punishment of five years’ confinement.2
Notice of Enhancement
Mares contends the trial court erred by overruling his objection and allowing the State to
proceed on an untimely notice of enhancement of punishment. On appeal, Mares asserts he was
harmed because the enhancement increased the potential maximum sentence for unlawful
possession of a firearm by a felon from that for a third degree felony to that for a second degree
felony. See id. § 12.42(a); see also id. § 12.33(a) (West 2011) (individual adjudged guilty of
felony of second degree shall be punished by imprisonment for not more than twenty years or
less than two years); § 12.34(a) (West 2011) (individual adjudged guilty of felony of third degree
shall be punished by imprisonment for any term of not more than ten years or less than two
years). He further argues on appeal that the untimely notice deprived him of an opportunity to
investigate the new allegation, “try to mount a defense to it,” or evaluate the merits of accepting
a plea agreement.
The State is required to provide notice of its intent to use a defendant’s prior convictions
for enhancement purposes. Brooks v. State, 957 S.W.2d 30, 33–34 (Tex. Crim. App. 1997)
(reiterating prior convictions used as enhancements must be pled in some form, but they need not
be pled in the indictment). However, due process “does not even require that the notice be given
before the guilt phase begins, much less that it be given a number [of] days before trial.”
Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (citing Oyler v. Boles, 368 U.S.
448, 452 (1962)); see also Ex Parte Parrott, 396 S.W.3d 531, 537 (Tex. Crim. App. 2013) (“This
Court no longer requires that notice [of intent to use a prior conviction for enhancement
2
In addition to imprisonment, an individual adjudged guilty of a second or third degree felony may be punished by a fine not to exceed
$10,000. See TEX. PENAL CODE ANN. §§ 12.33(b), 12.34(b). No fine was imposed by the trial court in this case.
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purposes] be provided by allegations in a charging instrument, nor does it require that it be given
prior to trial.”). 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).
An appellate court “look[s] to the record to identify whether appellant’s defense was
impaired by the timing of the State’s notice.” Id. When a defendant has no defense to an
enhancement allegation and makes no suggestion of the need for a continuance in order to
prepare a defense, notice given even at the beginning of the punishment phase satisfies the due
process requirements of the United States Constitution as well as the due course of law
requirements of the Texas Constitution. Villescas, 189 S.W.3d at 294; see also Mayfield v. State,
219 S.W.3d 538, 540 (Tex. Crim. App. 2007).
The State should provide timely and adequate notice of an intent to enhance the
punishment of a defendant. See Brooks, 957 S.W.2d at 33–34. Yet, in determining whether the
State provided Mares with sufficient notice, we note the record does not suggest that Mares’s
defense was impaired by the notice he received of the State’s intent to enhance punishment.
Here, the State provided notice of its intent to enhance punishment on the first day of trial.
Although Mares objected that the notice was “legal surprise” and was prejudicial, he did not
request any additional time to prepare his defense after receiving notice of the State’s intent to
enhance his punishment, nor did he complain that he was unprepared to contest the enhancement
allegation. See Villescas, 189 S.W.3d at 294; Zambrano v. State, 431 S.W.3d 162, 171 (Tex.
App.—San Antonio 2014, no pet.) (State provided notice of intent to enhance punishment before
the guilt-innocence phase of trial; although defendant protested the notice was a surprise and
untimely, defendant did not state continuance was required for discovery or preparation of
defense to enhancement); see also Garza v. State, 383 S.W.3d 673, 676–77 (Tex. App.—
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Houston [14th Dist.] 2012, no pet.) (with regard to appellant’s contention notice of intent to
enhance punishment was untimely, appellant did not request continuance to investigate or
prepare a possible defense, and although appellant pleaded “not true” to enhancement allegation,
he “[did] not contend on appeal that he [had] any possible basis for challenging the State’s
evidence of the prior conviction”); Hughen v. State, 265 S.W.3d 473, 481–82 (Tex. App.—
Texarkana 2008) (due process requirements satisfied even though defendant claimed
enhancement allegation was untimely and he pleaded “not true” to the allegation, where
defendant did not seek continuance of punishment proceeding and failed to argue evidence of
prior conviction was inadequate or that offense used to enhance punishment was in any way
defensible), aff’d, 297 S.W.3d 330 (Tex. Crim. App. 2009).3 Mares acknowledged that the
nature of the charge for which he was to be tried—unlawful possession of a firearm by a felon—
entailed a felony conviction in the past. In the guilt-innocence phase of trial, Mares testified he
had been previously convicted of and imprisoned for unlawful possession of a firearm by a felon,
and he knew he was not supposed to be around guns. In the punishment phase of trial, Mares
pleaded “true” to the enhancement paragraph, and a copy of the judgment for that conviction was
admitted in evidence without objection.
We conclude on this record that the trial court did not err in overruling Mares’s objection
to the State’s notice of intent to enhance punishment. Accordingly, we resolve Mares’s sole
issue against him.
3
See also Arredondo v. State, Nos. 05-08-00477-CR, 05-08-00478-CR, 05-08-00479-CR, 2009 WL 901980, at *1 (Tex. App.—Dallas Apr.
3, 2009, no pet.) (not designated for publication) (State’s notice of intent to enhance punishment filed three days before trial was constitutionally
adequate notice where appellant asserted no defense to enhancement allegation, pleaded true to prior conviction alleged in enhancement
paragraph, and did not move for a continuance or suggest a continuance was necessary to discover or prepare a defense); Brown v. State, No. 13-
12-00776-CR, 2013 WL 7864081, at *2 (Tex. App.—Corpus Christi Oct. 24, 2013, no pet.) (mem. op., not designated for publication) (State’s
notice of intent to enhance punishment filed day voir dire began was sufficient notice where record did not suggest defense was impaired by
timing of State’s enhancement notice, and appellant pleaded “true” to prior conviction, did not object to introduction of judgment of prior
conviction, and did not request continuance or suggest continuance was necessary to prepare a defense); Cf. Ruth v. State, No. 13-11-00385-CR,
2012 WL 3755607, at *5–6 (Tex. App.—Corpus Christi Aug. 29, 2012, pet. ref’d) (mem. op., not designated for publication) (amended
enhancement notice provided to defendant and his counsel one day prior to beginning of punishment phase did not provide adequate notice in
light of counsel’s repeated requests for continuance in order to prepare defense to amended enhancement paragraphs).
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Reformation of Judgment
We may modify a trial court’s written judgment to correct a clerical error when we have
the necessary information before us to do so. TEX. R. APP. P. 43.2(b); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). The trial court’s judgment
erroneously reflects that Mares was convicted for violation of section 46.06 of the penal code,
“Unlawful Transfer of Certain Weapons.” Mares’s conviction was for violation of section 46.04
of the penal code, “Unlawful Possession of Firearm.” Consequently, we reform the trial court’s
judgment in trial court cause number F-1263086-J to reflect Mares’s conviction for violation of
section 46.04 of the penal code.
Conclusion
We modify the judgment in trial court cause number F-1263086-J to reflect Mares’s
conviction for violation of section 46.04 of the penal code. As modified, the judgment is
affirmed.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
140454F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IVAN ANGEL MARES, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas,
No. 05-14-00454-CR V. Trial Court Cause No. F-1263086-J.
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section of the judgment titled “Statute for Offense” is modified to state
“46.04.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 29th day of May, 2015.
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