Brooks v. State

957 S.W.2d 30, 1997 Tex. Crim. App. LEXIS 94, 1997 WL 730752

• Court: Court of Criminal Appeals of Texas
• Decided: November 26, 1997
• Docket: 887-96
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge,

delivered the opinion of the Court,

in which McCORMICK, Presiding Judge, and MANSFIELD, PRICE, HOLLAND and WOMACK, Judges, joined.

A jury convicted appellant of delivery of a controlled substance, and after finding that appellant had previously been convicted of a felony, the jury assessed his punishment at fifteen years confinement and a $15,000 fine. Appellant’s conviction was affirmed on appeal. Brooks v. State, 921 S.W.2d 875 (Tex. App.—Houston [14th Dist.], 1996). We granted appellant’s petition for discretionary review to determine whether the Court of Appeals erred in upholding the trial court’s submission of an enhanced punishment charge to the jury. We will affirm.

The indictment returned by the grand jury against appellant in this case did not contain an enhancement paragraph. The State filed a motion for leave to amend the indictment to add an allegation that appellant had previously been convicted of attempted murder. The trial court granted the State’s motion, and in its order, stated the following:

Leave of Court is given to the State to amend the indictment and the amendment is done under the direction of the Court to add the following:

HABITUAL PARAGRAPH

AND THE GRAND JURORS AFORESAID do further present that before the commission of the primary offense, on or about the 21st day of November, 1985, in Cause No. 865187 in the 280th Judicial District Court of Harris County, Texas, the defendant was convicted of the felony of Attempted Murder.

(Emphasis added). However, the original document containing the indictment was not physically altered in any respect. At the beginning of the punishment hearing, the State’s attorney read the “remainder” of the “amended” indictment to the jury without objection. Appellant made no objection when the trial court included the enhancement in the punishment charge. Both sides treated the enhancement allegation as if it were properly before the court and jury as an amendment to the indictment.

On appeal, appellant complained that the State’s failure to physically alter the original indictment document to include the amendment violated appellant’s constitutional right to be apprised of the accusations against him. The Court of Appeals held that there was not an amendment because the indictment was never physically altered. See Ward v. State, 829 S.W.2d 787 (Tex.Cr.App.1992). The Court further held that since the indictment was not amended to include an enhancement paragraph, the trial court had no authority to include it in the jury charge at punishment. Since appellant failed to object to the submission of the enhancement in the punishment charge, the Court reviewed the error pursuant to the test set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985). The Court of Appeals concluded that appellant was not deprived of a “fair and impartial trial” and did not suffer egregious harm because he admittedly received notice of the State’s intent to seek an enhanced punishment based on the prior conviction, admitted to the jury he was convicted in 1985 for attempted murder and sentenced to 20 years confinement, and failed to make any allegation that he was unfairly surprised by the enhancement. Brooks, 921 S.W.2d at 879.

In his petition to this Court, appellant contends that the Court of Appeals erred in using an egregious harm analysis, and contends that the court’s holding conflicts with Alvarez v. State, 472 S.W.2d 762 (Tex.Cr.App.1971), overruled in part by, Scott v. State, 553 S.W.2d 361 (Tex.Crim.App.1977). In its response to the petition, the State argues that the only purpose of the enhancement paragraph is to provide the accused with notice that the State will attempt to use a specific conviction for enhancement of punishment. See Coleman v. State, 577 S.W.2d 486, 488 (Tex.Cr.App.1979). The State contends that it is not constitutionally required that an enhancement allegation be included in the indictment because an enhancement paragraph does not form any part of the allegations of criminal wrongdoing, and therefore the State’s motion for leave to amend the indictment to include the enhancement paragraph, which was granted by the trial court, satisfied the State’s notice requirement.¹ The State also contends that appellant waived error under Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990) by failing to object before trial to the amended indictment.²

Even if the trial court’s order did not constitute an amendment, the trial court did not err in submitting the enhancement issue to the jury because enhancement allegations need not be included in an indictment. Article 27.01 provides that an indictment is the State’s “primary pleading in a criminal action” (emphasis added). By inference, the statute indicates that other, ancillary pleadings by the State are possible, and in fact, we have recognized that certain matters, such as the intent to seek a deadly weapon finding, may be pled apart from the indictment. Ex Parte Patterson, 740 S.W.2d 766, 776 (Tex.Crim.App.1987), overruled on other grounds by, Ex Parte Beck, 769 S.W.2d 525, 528 (Tex.Crim.App.1989). Article 21.03 provides that “[ejverything should be stated in an indictment which is necessary to be proved.” We have interpreted that provision to mean that an indictment must include “everything necessary to be proven to sustain a conviction in the guilt/innocence phase ” of a trial. Sharp v. State, 707 S.W.2d 611, 624 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988)(punishment special issues in capital murder case need not be pled in indictment); Rosales v. State, 748 S.W.2d 451, 458 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2917, 101 L.Ed.2d 949 (1988)(same).

Relying upon Sharp and Rosales, one court of appeals has held that a defendant has no right to a grand jury determination regarding a prior conviction used for enhancement. Batiste v. State, 785 S.W.2d 432, 436 (Tex.App.—Corpus Christi 1990, pet. ref d). In Batiste, the State, through amendment, substituted one enhancement allegation for a different enhancement allegation. Id. at 433. The defendant complained that use of the new enhancement allegation violated his constitutional right to a grand jury determination of such an allegation. Id. at 433-434. The Corpus Christi Court of Appeals held that substitution without resort to the grand jury was proper because the defendant was not entitled to a grand jury determination regarding the enhancement. Id. at 436.

■ However, in Patterson and some of our older cases, we have indicated that enhancement paragraphs must be included in the indictment:

It was long ago held that “[ejvery circumstance constituting a statutory offense which would affect the degree of punishment, must be alleged in the indictment.” Long v. The State, [36] Tex. 6, 10 (1871). Thus, prior convictions to be used for enhancement of punishment under felony recidivist statutes must be pled in the indictment, and proof of an upheld prior conviction will not support an enhanced sentence. See Moore v. State, 154 Tex. Cr.R. 307, 227 S.W.2d 219 (1950). This is true even though a prior offense alleged for enhancement is not really a component element of the primary offense, but only “an historical fact to show the persistence of the accused, and the futility of ordinary measures of punishment as related to him.” Sigler v. State, 143 Tex.Cr.R. 220, 157 S.W.2d 903, 904 (1942).

Patterson, 740 S.W.2d at 776 (emphasis added). But this statement in Patterson was dicta because the issue in that case was whether and how a deadly weapon finding must be pled. Id. Moreover, the authorities cited by Patterson do not necessarily support the proposition that enhancements must be pled under the current statutory scheme. When Long was decided, indictments were the only pleadings of the State. Texas Code of Criminal Procedure, Article 481 (1856). See also Batiste, 785 S.W.2d at 435. The Long court was concerned that failing to include enhancements in the indictment “would, in effect, do away with criminal pleadings.” 36 Tex. at 10. Further, when Long was decided, the law required the State to plead “whatever matter affects the degree or kind of punishment.” Id. at 9-10. By contrast, statute now permits the State to have other pleadings, and Sharp eliminated the requirement that an indictment plead punishment issues. Moore held that prior convictions used for enhancement must be pled but did not categorically say that the pleading used must be an indictment. See Moore, 227 S.W.2d at 221. Sigler had nothing to do with whether enhancements must be pled but held that such enhancements do not implicate double jeopardy concerns. See Sigler, 157 S.W.2d at 904-905. In fact, a reading of Sigler indicates that Patterson 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. See Patterson and Sigler, above.

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. Patterson, 740 S.W.2d at 778 (Miller, J. concurring)(citing Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697(1959), overruled in part by, Scott v. State, 553 S.W.2d 361 (Tex.Crim.App.1977); Parasco v. State, 165 Tex.Cr.R. 547, 309 S.W.2d 465 (1958), overruled in part by, Bell v. State, 504 S.W.2d 498, 500-501 (Tex.Crim.App.1974); Coleman v. State, 577 S.W.2d 486 (Tex.Crim. App.1979); Bevins v. State, 422 S.W.2d 180 (Tex.Crim.App.1967)). Coleman and Bevins 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. See Coleman, 577 S.W.2d at 488; Bevins, 422 S.W.2d at 181-182. Parasco and Rogers did purport to hold that prior convictions used for enhancement must be alleged in the indictment. See Parasco, 309 S.W.2d at 467; Rogers, 325 S.W.2d at 698. But Parasco’s holding was premised in part on the notion that the prior conviction in the particular case constituted an element of the offense. 309 S.W.2d at 466. This part of Parasco’s holding was subsequently overruled. Bell, 504 S.W.2d at 500-501. 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.” 309 S.W.2d at 467. And Rogers relied solely upon Parasco as authority for its holding. 325 S.W.2d at 698.

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:

We simply observed in Patterson that the enhancement paragraphs must be pled somewhere, 740 S.W.2d at 776, and, as the court of appeals points out, 785 S.W.2d at 435, when the seminal case on enhancement paragraphs was decided, see Long v. State, 36 Tex. 6 (1871), 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.

Batiste v. State, 830 S.W.2d 951, 952 n. * (Tex.Crim.App.1992)(Clinton, J. dissenting from refusal to grant pet. for disc. rev.)(emphasis added). 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. 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. See Patterson, 740 S.W.2d at 776. In this ease, the requisite notice was conveyed by the State’s motion and the trial court’s order.

We find that the Court of Appeals reached the correct result in light of the above discussion. Therefore, the Court of Appeals’ decision is affirmed.

MANSFIELD, J., filed a concurring opinion. MEYERS, J., filed a dissenting opinion, in which BAIRD, J., joined. OVERSTREET, J., dissented.

1 . In its opinion, the Court of Appeals discussed this argument and found it to be sound, but declined to adopt it because the court considered itself bound by our opinion in Ex Parte Patterson (see below).

2 . Relying upon Ward, the Court of Appeals concluded that the indictment in this case was not amended. The State claims that Ward is distinguishable. Because of our disposition of the case, we need not address whether the indictment was amended.