Hackett v. State

160 S.W.3d 588, 2005 WL 313713
CourtCourt of Appeals of Texas
DecidedMarch 9, 2005
Docket10-03-00269-CR
StatusPublished
Cited by38 cases

This text of 160 S.W.3d 588 (Hackett v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hackett v. State, 160 S.W.3d 588, 2005 WL 313713 (Tex. Ct. App. 2005).

Opinions

CORRECTED1 OPINION

FELIPE REYNA, Justice.

A jury convicted Cecil Jackson Hackett of stealing $33,000 in cash through a fraudulent investment scheme. Hackett pleaded “true” to allegations of prior convictions enhancing his punishment to that for an habitual offender, and the jury assessed his punishment at life imprisonment.

Hackett contends in two issues that: (1) the State’s notice of its intent to use prior convictions for enhancement purposes was untimely because it was filed less than a week before trial; and (2) the court abused its discretion by denying his motion for mistrial after an officer testified that the victim selected Hackett’s photo from “a senes of mug books with some pictures of known offenders.”

We hold that, even though the State failed to give reasonable notice of its intent to use the prior convictions for enhancement purposes, any error was rendered harmless because Hackett did not request a continuance. And because the court’s instruction to disregard the officer’s statement was sufficient to cure any prejudicial effect, the court did not abuse its discretion by denying the motion for mistrial. Accordingly, we will affirm the judgment.

The State Must Give At Least Ten Days’ Notice Of Its Intent To Use Prior Convictions For Enhancement Purposes

Hackett contends in his first issue that the State’s notice of its intent to use prior convictions for enhancement purposes did not give him “reasonable notice” because it was given only five days before trial.

A grand jury indicted Hackett for theft of property valued at $20,000 or more, but less than $100,000 — a third degree felony. The indictment included no enhancement allegations. Five days before trial, the State filed a notice of intent to enhance punishment, alleging eight prior felony convictions which would enhance Hackett’s punishment from that for a third degree felon to that for an habitual felon. Hack-ett filed a motion to quash the enhancement notice, contending that he was entitled to at least ten days’ notice before trial. The court denied the motion.

The State must plead in some form any enhancement allegations which it intends to prove during the punishment phase of trial. Brooks v. State, 957 S.W.2d 30, 33-34 (Tex.Crim.App.1997); Hudson v. State, 145 S.W.3d 323, 326 (Tex.App.-Fort Worth 2004, pet. ref’d); Fairrow v. State, 112 S.W.3d 288, 293 (Tex.App.-Dallas 2003, no pet.); Sears v. State, 91 S.W.3d 451, 454 (Tex.App.-Beaumont 2002, no pet.). To be adequate, a pleaded enhancement allegation must provide “ ‘a description of the judgment of former conviction that will enable [the accused] to find the record and make preparation for a trial of the question whether he is the convict named therein.’ ” Fairrow, 112 S.W.3d at 294 (quoting Sears, 91 S.W.3d at 454-55 (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex.Crim.App.1978))).

Thus, for notice to be adequate, it must be reasonably timely. See Hudson, [591]*591145 S.W.3d at 326; Fairrow, 112 S.W.3d at 294; Sears, 91 S.W.3d at 454-55. The Fort Worth, Dallas, and Beaumont courts declined to establish a minimum number of days’ notice, observing instead that ten days’ notice is presumptively reasonable. Id.

An enhancement notice which affects the range of punishment is a de facto amendment of the indictment. Because article 28.10(a) of the Code of Criminal Procedure requires a minimum of ten days’ notice for an amendment to an indictment, we hold that a minimum of ten days’ notice is required when the State files a separate pleading giving notice of enhancement allegations. Cf. Tex.Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989).

The State contends that it should be excused from providing more notice because it gave notice as soon as it discovered the existence of the prior convictions. However, the State cites no authority to support this position. Rather, the State argues that its lack of prior knowledge makes the facts of Hackett’s case significantly different from those presented in Sears, where the State knew of the defendant’s prior convictions in advance. See Sears, 91 S.W.3d at 454. We conclude that this distinction is irrelevant.

In Sears, the Beaumont court flatly rejected the proposition that the defendant had sufficient notice of the State’s intent to use a prior conviction for enhancement purposes because the State had given prior notice of its intent to use that prior conviction for impeachment purposes. Id. The court also rejected the proposition that the defense had adequate notice because the penitentiary packet for the conviction was in the State’s file, which defense counsel had reviewed. Id. Nevertheless, the issue is not whether the State had an excuse, but rather, whether the accused had sufficient notice to prepare for trial. See Hollins, 571 S.W.2d at 875; Fairrow, 112 S.W.3d at 294; Sears, 91 S.W.3d at 454-55.

The indictment charged Hackett with a third degree felony. The enhancement allegations, if found true, increased the minimum and maximum punishment ranges significantly beyond the maximum punishment provided for the offense as originally indicted (i.e., from a maximum of 10 years to a minimum of 25). Thus, we hold that the State did not provide reasonably timely notice of its intent to use the enhancement allegations.

However, Hackett sought only to quash the enhancement allegations. He did not seek a continuance. Thus, any error in the court’s denial of Hackett’s motion to quash was rendered harmless by Hackett’s failure to request a continuance. See Barnes v. State, 876 S.W.2d 316, 328 (Tex.Crim.App.1994); Rushing v. State, 50 S.W.3d 715, 729 (Tex.App.-Waco 2001), aff’d, 85 S.W.3d 283 (Tex.Crim.App.2002); cf. Hudson, 145 S.W.3d at 327 (defense requested postponement when counsel received mid-trial enhancement notice); Sears, 91 S.W.3d at 454 (defense requested continuance after trial court overruled objection to timeliness of enhancement notice). Accordingly, we overrule Hackett’s first issue.

The Trial Court’s Instruction Cured Any Prejudicial Effect Arising From The Officer’s Testimony

Hackett contends in his second issue that the court abused its discretion by overruling his motion for mistrial after overruling his objection to an officer’s testimony that the victim had selected Hack-ett’s photo from “a series of mug books with some pictures of known offenders.”

The officer made this statement when explaining how Hackett came to be identi[592]*592fied as a suspect in the case. The trial court sustained Hackett’s objection to the officer’s statement. A hearing was then held outside the presence of the jury during which Hackett requested a mistrial because of the indirect reference to extraneous offenses.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Robert Clayton Bradley v. the State of Texas
Court of Appeals of Texas, 2024
Josefina M. Curiel v. State
Court of Appeals of Texas, 2019
Bobby Joe Hall v. State
Court of Appeals of Texas, 2014
Lowell Quincey Green v. State
Court of Appeals of Texas, 2014
Bradley Fitzgerald v. State of Texas
Court of Appeals of Texas, 2012
Lopez v. State
314 S.W.3d 70 (Court of Appeals of Texas, 2010)
Lee Charles Hamilton v. State
Court of Appeals of Texas, 2008
Jeffrey C. Vaccaro v. State
Court of Appeals of Texas, 2007
Ketchum v. State
199 S.W.3d 581 (Court of Appeals of Texas, 2006)
Melvin Ketchum v. State
Court of Appeals of Texas, 2006
Randy Lee Fugate v. State
Court of Appeals of Texas, 2006
Fugate v. State
200 S.W.3d 781 (Court of Appeals of Texas, 2006)
Pena v. State
191 S.W.3d 133 (Court of Criminal Appeals of Texas, 2006)
Pena, Jose Luis
Court of Criminal Appeals of Texas, 2006
Alsobrooks, Jotis Dewalt v. State
Court of Appeals of Texas, 2006
Bruce D. Carrington v. State
Court of Appeals of Texas, 2006
Lewis v. State
191 S.W.3d 335 (Court of Appeals of Texas, 2006)
Gordon Newell Lewis v. State
Court of Appeals of Texas, 2006
Williams v. State
172 S.W.3d 730 (Court of Appeals of Texas, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
160 S.W.3d 588, 2005 WL 313713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hackett-v-state-texapp-2005.