Pena, Jose Luis

• Court: Court of Criminal Appeals of Texas
• Decided: April 26, 2006
• Docket: PD-0966-05
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0966-05 JOSE PENA, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

LEON COUNTY

Meyers, J., filed a dissenting opinion.

Three weeks ago, this Court decided Villescas v. State. No. PD-0531-05, 2006 Tex. Crim. App. LEXIS 682 (Tex. Crim. App. 2006). In that case, we granted the State's petition for discretionary review to determine whether the State's notice of its intention to enhance the defendant's primary offense was timely. However, instead of addressing the issue of timeliness, the Court undertook a federal due process analysis, deciding that the appellant's constitutional rights had not been violated by the State's notice of enhancement six days before trial. ⁽¹⁾

I find it ironic that, without blinking an eye, the majority today reprimands the Tenth Court of Appeals for ruling on a constitutional question not briefed by the parties when that is the very action it took in resolving Villescas. In the instant case, the majority notes that Appellant's contention on appeal was that the trial court "erred in admitting testimony of test results concerning alleged marijuana when this material evidence and the original file concerning this evidence had been destroyed or lost prior to trial and without independent testing." In considering this claim, the court of appeals addressed whether the Texas Constitution's Due Course of Law Clause afforded Appellant greater protection than the United States Constitution's Due Process Clause. The majority holds that the court of appeals erred in failing to allow the parties to brief this particular issue.

At trial, defense counsel argued in his motion to suppress that the admission of the test results and the testimony surrounding them would violate his due process rights guaranteed by both the United States Constitution and the Texas Constitution. Thus, the issue of a violation of Appellant's rights under the Due Course of Law provision was raised and preserved at trial. Furthermore, the Tenth Court of Appeals has now addressed the relationship between the respective due process clauses of the federal and state constitutions for the purposes of this case, resolving that the Texas Due Course of Law provision provides greater protection with regard to the loss of "evidence that has apparent exculpatory value." Pena v. State, No. 10-03-00109-CR, 2005 Tex. App. LEXIS 3192, *17 (Tex.App.-Waco 2005). As this issue is now properly before us, and no statute or caselaw precedent requires us to send the case back to the court of appeals, it violates common sense and judicial economy to remand it. ⁽²⁾ I respectfully dissent from the Court's judgment.

Meyers, J.

Filed: April 26, 2006

Publish

Exhibit "A"

NO. PD-0531-05 FRANCISCO VILLESCAS, Appellant

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE EIGHTH COURT OF APPEALS

EL PASO COUNTY

I believe that the majority has somewhat misstated the ground in the petition for discretionary review and incorrectly interpreted the law surrounding the issue raised. Relying on the 1962 United States Supreme Court case Oyler v. State, ⁽³⁾ the majority concludes that the State's enhancement notice was timely because it satisfied federal due process requirements by alleging the enhancement before the punishment phase of trial. Not only does the majority overstate the reach of Oyler, it applies it to the dissimilar circumstances of Villescas v. State, ⁽⁴⁾ drawing an incongruent analogy. Furthermore, in reaching its decision, the Court cites the fact that Appellant ultimately received a continuance as evidence that the State's notice of its intention to enhance the primary offense was timely. Lastly, the majority holds that all claims involving the timeliness of the State's enhancement notice, whether alleging a constitutional violation or not, should be subject to constitutional standards when conducting a harm analysis. I would also reverse the Court of Appeals, but for different reasons.

BACKGROUND

Trial Court and Court of Appeals

Appellant was charged by indictment with attempted sexual assault. Six days before trial, and nine days before the commencement of the punishment hearing, the State filed a "Notice of Enhancement," in which it expressed its intent to seek an enhanced sentence under section 12.42(a)(3) of the Texas Penal Code based on Appellant's prior felony conviction. Defense counsel twice objected to the State's enhancement notice. Upon his first objection prior to jury selection, the trial court deferred argument on the issue until the parties reached the punishment phase of the trial. Upon his second objection at the beginning of the punishment hearing, the trial court withheld ruling and entered a plea of not true to the enhancement allegation on Appellant's behalf. During the punishment phase, Appellant was confused about the process by which his fingerprints were compared to prior judgments, and the trial court recessed the case until the following week to allow time for explanation. When the trial court resumed the proceeding, defense counsel explained that Appellant now understood the fingerprint- comparison procedure. Appellant maintained his plea of "not true" to the enhancement paragraph, but stipulated to the prior convictions, including the prior felony conviction alleged for enhancement. The trial court found the enhancement allegation to be true and sentenced Appellant to eighteen years' imprisonment, a sentence within the range of punishment for a second-degree felony. ⁽⁵⁾

One issue before the Eighth Court of Appeals in Villescas was whether the trial court erred in allowing an enhanced punishment because the State failed to provide timely notice that it would seek the enhancement. Relying on precedent that a defendant is entitled to notice of a prior conviction being used for enhancement ⁽⁶⁾ and on the presumption among several courts of appeals that ten days before trial is reasonable notice, ⁽⁷⁾ the Court of Appeals determined that the State's notice was untimely. The Court of Appeals explained that the timeliness of notice should be measured within the time frame prior to trial, since the purpose of the notice requirement was to aid the accused in preparation for a trial on the issue. It also reasoned that the State's notice of six days was insufficient because there was evidence that Appellant was surprised and unprepared in his defense with respect to the alleged prior convictions. Having determined that the State's notice of intent to seek an enhanced punishment was untimely, the Court of Appeals concluded that Appellant suffered substantial harm ⁽⁸⁾ in the form of a sentence outside the ten-year maximum for a third-degree felony due to the enhancement.

ANALYSIS

In its petition for discretionary review, the State argues that the Court of Appeals erred by failing to consider all of the particular circumstances of this case in concluding that the State's enhancement notice was not timely. In particular, the State contends that the Court of Appeals did not take into account the fact that the trial court remedied Appellant's confusion regarding the fingerprint-comparison procedure by granting a one-week continuance. The State's position is that the continuance cured the only cited adverse consequence of the timing of the notice. The State does not expressly advance or rely on a due process argument in claiming that its notice was timely. Similarly, rather than undertaking a due process analysis, the Court of Appeals evaluated the circumstances of the case in relation to decisions from this Court and the lower courts of appeals in holding that the State's notice was untimely. Instead of staying focused on the question granted in the petition for discretionary review-whether the State's notice of intent to enhance was timely- the majority makes this a case about federal due process.

Although due process is implicated in this case and others involving the timeliness of the State's notice of enhancement, this is not the issue raised by the State in its petition for discretionary review. In holding that the State's notice of enhancement was sufficient, the majority relies almost exclusively on Oyler, the United States Supreme Court case establishing that due process does not require advance notice that the trial for the substantive offense will be followed by an accusation that the defendant is an habitual offender. 368 U.S. at 453; see Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998); Parke v. Raley, 506 U.S. 20, 28 (1992). In Oyler, the Supreme Court determined that due process may be satisfied even though the State does not give its notice of enhancement until the punishment phase of trial, as long as the defendant has a reasonable opportunity to respond to the recidivist charge. 368 U.S. at 452 (explaining that a defendant must receive "reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense."). The defendants in Oyler had reasonable notice because the State informed them of its intention to seek enhancement at the start of the punishment phase, and they had an opportunity to be heard because they acknowledged in open court that they were the same persons who had previously been convicted. Thus, no due process violation occurred. Indeed, the Supreme Court made clear that the petitioners' failure to object or seek a continuance on the ground that they had not received adequate notice was the reason they were estopped from later asserting the claim that they had not been given a fair opportunity to respond to the allegations used for enhancement. Id. at 453.

The facts surrounding Appellant's case are dissimilar. Appellant's attorney twice lodged objections to the State's notice of intent to seek an enhanced sentence, and it was the trial judge who continued to defer ruling on this matter. Furthermore, Appellant persisted in his plea of not true to the enhancement paragraphs. Most notably, the defendants in Oyler were apprised of the enhancements by a separate information after the conclusion of trials in which their sentences were deferred. The West Virginia statute at issue in Oyler provided the defendants with a separate jury trial on the issue of identity if they denied being the person in the information alleging the enhancement or just remained silent, whereas Appellant was sentenced by the same jury that decided his guilt. Oyler entertained a particular set of facts and did not speak to scenarios in which a defendant contests the State's notice of intent to seek enhancement and indicates that he needs more time within which to prepare, and it did not address the situation of a unitary trial in which the same jury decides guilt and punishment in two separate phases. Oyler was a case in which the defendants basically procedurally defaulted their ability to challenge the enhancement, and it effectively left room for the situation in which notice before the punishment phase would not satisfy due process.

Our role in the instant case is not to determine whether Appellant's due process rights were abridged, but to decide whether the State's filing of its notice to enhance punishment was timely. The Supreme Court's holding in Oyler does not stand for the proposition that notice of intent to enhance is timely as long as it is received prior to the punishment proceeding, as the majority suggests. The majority basically dismisses the timeliness issue by saying that the State's notice, which was given six days before the beginning of trial, was "substantially more than the notice minimally required to satisfy due process." Majority Opinion at *8. Again, the majority misinterprets Oyler and confuses the issues of timeliness and due process by treating them as if they were one and the same. If Oyler stood for the proposition that timeliness requirements were satisfied as long as the State gave notice at the beginning of the punishment phase, then an entire jurisprudence would not exist. Indeed, it is noteworthy that Oyler has never been cited in any Texas case dealing with the timeliness of the State's notice of enhancement, in light of the fact that its due process holding would have been applicable to this issue beginning with our 1997 decision in Brooks v. State, which allowed the State to give notice of enhancement outside of the indictment. ⁽⁹⁾ The majority should have focused specifically on the question of timeliness, rather than delving into a constitutional analysis not employed by the Court of Appeals, in which it conflates notice and timeliness. See Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005) (explaining that since the appellant did not contest the Court of Appeals' application of the standard for nonconstitutional error, we would assume that it was the proper rule).

In failing to address the issue presented for review, the majority misses the opportunity to provide guidance to both the lower courts, which have increasingly encountered this issue, and the State, as to what constitutes timeliness in seeking an enhanced sentence. The message that the majority sends is that as long as the State files its notice of enhancement before punishment, that notice is timely. The majority has essentially done away with the issue of timeliness by substituting due process, ⁽¹⁰⁾ and it has created a precedent that could make every notice issue, including a motion to quash, one of constitutional dimension.

The Court of Appeals applied the correct procedures in evaluating the merits of Appellant's claims, although it reached the wrong conclusion. First, the Court of Appeals examined whether the State's notice was timely, given the circumstances of the case. Second, only after having determined that the State's notice was untimely did it undertake a harm analysis. Timeliness must be measured at the time the State files its notice, or expresses its intention, to seek an enhanced sentence, and it makes sense to require that the notice be before trial. We said in Brooks ⁽¹¹⁾ that a defendant is entitled to notice of the State's intention to enhance, and there is a presumption among the lower courts that ten days prior to trial is reasonable. ⁽¹²⁾ Proper notice constitutes a "description of the judgment of former conviction that will enable [the accused] to find the record and make a preparation for a trial of the question whether he is the convict named therein." Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App. 1978) (citing Morman v. State, 75 S.W.2d 886 (1934)). Proper notice also affords the defendant the opportunity to determine if the prior offenses are being correctly characterized by the State, in terms of their substance and finality, and it gives an attorney the opportunity to voir dire potential jurors on punishment issues. It is common sense to require the State to give its notice of enhancement before the commencement of proceedings, especially when there is a unitary trial.

The lower courts of appeals have addressed the issue of timeliness, and their decisions offer some direction in evaluating Appellant's claim. Notably, this jurisprudence on timeliness has evolved in the lower courts as a result of our decisions in Ex parte Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1987), in which we allowed the intent to seek a deadly weapon finding to be pleaded outside of the indictment, and subsequently in Brooks, in which we allowed the intent to seek sentence enhancement to be pleaded outside of the indictment. While the Waco appellate court has adopted a bright-line rule requiring ten days' notice of the State's intention to enhance before the guilt phase of trial, ⁽¹³⁾ other courts have considered the facts of each case, including how close to trial the defendant was informed of the State's decision to seek enhancement and whether the defendant expressed surprise or the need for additional time in which to prepare. The instant case gives this Court an opportunity to provide guidance to the lower courts as to how to evaluate the timeliness of the State's notice of enhancement. Because the facts of every case are different, I believe such claims should be addressed by evaluating the totality of the circumstances, rather than mandating a bright-line rule.

Based on the totality of the circumstance of this case, it seems that the State was not timely in providing notice for the following reasons. First, the notice was only six days before trial, including four business days and two weekend days. Notice of enhancement, like notice in other instances, should be given before trial in order to be timely, and a ten-day presumption, although not definitive, provides a starting point for our analysis that must be considered in relation to the other facts of the case. See Fairrow, 112 S.W.3d 288 (holding that the State's oral admonishment on the day of trial did not afford the defendant proper notice of intent to enhance punishment); Hudson v. State, 145 S.W.3d 323 (Tex. App.-Fort Worth 2004, pet. ref'd) (holding that notice was unreasonable when given during the guilt phase of trial six days before the punishment phase began); Cf. Fugate v. State, No. 2-04-548-CR, 2006 Tex. App. LEXIS 1948 (Tex. App.-Fort Worth 2006) (holding that the State's notice of seven days before trial was sufficient because the appellant was aware that the State had pen packets on his prior convictions and could use them for enhancement); Castilla v. State, No. 05-01-01776-CR, 2002 Tex. App. LEXIS 7263 (Tex. App.-Dallas Oct. 10, 2002, no pet.) (not designated for publication) (holding that State gave "ample notice" by filing ancillary pleadings seven days before trial).

Second, defense counsel objected at both the guilt stage and the punishment stage of trial, saying that the notice was untimely and indicating that he needed additional time in which to prepare. See Sears, 91 S.W.3d 451 (considering the attorney's objection to the enhancement in holding that notice given the Friday before the Monday trial began was untimely); Cf. Williams v. State, 172 S.W.3d 720 (Tex. App.-Fort Worth 2005, pet. ref'd) (holding that eight days' notice before trial was reasonable based in part on the absence from the record of any surprise or lack of preparation on the part of the defendant). Although the trial judge granted a continuance during the punishment phase because he observed Appellant's confusion with the fingerprint-comparison procedure, this recess did not have the effect of transforming the State's untimely notice into timely notice. Third, Appellant maintained his plea of not true to the enhancement paragraph throughout the proceedings. See Barnes v. State, 152 S.W.3d 144 (Tex. App.-Dallas 2005, no pet.) (holding that notice seven days before trial was reasonable where defendant said that he had ample notice and pleaded true to the enhancement paragraphs). Appellant never indicated that he believed the notice was timely, and he preserved this issue for review on appeal. A consideration of the aforementioned circumstances reveals that the State's notice was not timely as measured from the date that it first gave notice and defendant first objected.

Having established that the State's notice was untimely, it is necessary to determine whether the trial court committed reversible error. The Court of Appeals relied on Texas Rule of Appellate Procedure 44.2(b) in conducting its harm analysis. The

majority asserts that the Court of Appeals should have used the constitutional standard for its harm analysis because the notice requirement flows from the fundamental precepts of due process and due course of law. Again, while there may be a constitutional component to the claim that the State did not provide timely notice of its intention to enhance, Appellant did not advance such a claim. On appeal, the Court of Appeals considered the issue "whether the trial court erred in allowing an enhanced punishment because the State failed to provide timely notice that it would seek to enhance punishment." Villescas, No. 08-03-00131-CR, 2005 Tex. App. LEXIS 1118, at *1. Since Appellant did not allege a due process violation, the Court of Appeals correctly applied the nonconstitutional standard for reversible error to its harm analysis. The court of appeals in Fairrow undertook a similar approach. After concluding that the State's notice of intent to enhance was not timely, it explained that since the appellant argued that the sentencing was outside the range allowed by statute, it would "conduct the harm analysis of statutory errors as a species of 'other errors' under rule 44.2(b)." Fairrow, 112 S.W.3d at 295. The court of appeals declined to use the constitutional standard under Rule 44.2(a) because "Appellant does not argue that the trial court's error violated a constitutional provision." Id. On the other hand, the error in Sears was constitutional because the appellant had claimed that "the trial court violated his due process right to notice under the Sixth and Fourteenth Amendments to the United States Constitution when it allowed the State to present enhancement evidence over [his] objection that he had received inadequate notice of the State's intent to offer the evidence." 91 S.W.3d at 453. Therefore, the Sears court of appeals applied Rule 44.2(a) in conducting its harm analysis. In the instant case, although I agree with the Court of Appeals that the State's notice was untimely, I believe that the trial court's decision to recess the court gave defense counsel time to prepare for his defense against the prior conviction used for enhancement. Thus, whatever harm Appellant suffered as a result of the State's untimely notice was cured by the recess, even though it was not granted in response to defense counsel's objection.CONCLUSION

Although Oyler is instructive in determining whether Appellant's due process

rights were violated based on the State's notice of enhancement, the case is not conclusive as to the question of when notice is timely. Oyler does make clear that notice before the punishment phase of trial, rather than the guilt phase, may satisfy due process; however, it is careful to disclaim that this will satisfy due process in all cases, and it does not mention the particular issue of timeliness of notice. Our own caselaw is more instructive in determining whether notice is timely in a given situation. Based on the totality of the circumstances, I would have affirmed the Court of Appeals' decision that the State's notice was untimely. However, after undertaking a Rule 44.2(b) analysis of Appellant's nonconstitutional claim, I would have concluded that the untimely notice was cured by the trial court's one-week recess. Given that the majority has conflated issues of timeliness and notice in an analysis that unnecessarily relies on due process and that is unresponsive to the issue granted in the State's petition for discretionary review, I can only concur in its decision.

1. As a matter of context, I have attached as Exhibit "A" a copy of the concurring opinion which I prepared but never issued in Villescas.

2. It appears that Judge Hervey has made up her mind that the Due Course of Law Clause in the Texas Constitution does not offer greater protection than the Due Process Clause of the United States Constitution. Dissenting Op., at *1 ("The Tenth Court of Appeals read into this state constitutional provision a specific right, broader than that provided by its federal counterpart in the United States Constitution's due process clause, that had gone completely unnoticed for over 150 years.") Judge Hervey even cites Presiding Judge McCormick's concurrence in

Jimenez v. State as support for her position. 32 S.W.3d 233, 242 (due process clause in federal constitution and due course of law provision in state constitution mean the same thing).

3.

368 U.S. 448 (1962).

4. No. 08-03-00131-CR, 2005 Tex. App. LEXIS 1118 (Tex. App.-El Paso Feb. 10, 2005, pet. granted).

5. Attempted sexual assault is a third-degree felony. Under the Texas Penal Code, "[i]f it is shown . . . on the trial of a third-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony." Tex. Penal Code § 12.42(a)(3) (Vernon Supp. 2004-05). While the range of punishment for a third-degree felony is two to ten years' imprisonment, the range for a second-degree felony is two to twenty years. See Tex. Penal Code § 12.34(a) and Tex. Penal Code § 12.33(a), respectively.

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

7. See, e.g., Sears v. State, 91 S.W.3d 451, 455 (Tex. App.-Beaumont 2002, no pet.), in which the court of appeals said that notice is presumptively reasonable if given at least ten days before trial, because this time frame is considered sufficient in a number of other instances (citing Tex. Code Crim. Proc. Ann. art. 1.051(e) (Vernon Supp. 2002); Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989); Campbell v. State, 456 S.W.2d 918, 920 (Tex. Crim. App. 1970); Chimney v. State, 6 S.W.3d 681, 694 (Tex. App.-Waco 1999)).

8. See Tex. Rule App. Proc. 44.2(b).

9. Texas courts, including the Court of Criminal Appeals, have relied extensively on Oyler's equal protection holding that "the State's decision to prosecute may not be deliberately based upon unjustifiable standards such as race, religion, or other arbitrary classification." Oyler, 368 U.S. at 453. See also Green v. State, 934 S.W.2d 92, 103 (Tex. Crim. App. 1996); County v. State, 812 S.W.2d 303, 308 (Tex. Crim. App. 1989); Satterwhite v. State, 726 S.W.2d 81, 84 (Tex. Crim. App. 1986).

10. Notably, we could have decided the recent case McNatt v. State, No. PD-0133-05, 2006 Tex. Crim. App. LEXIS 588 (Tex. Crim. App. 2006), differently based on the majority's decision here. In McNatt, the court of appeals held that the appellant was denied due process because on the day of the punishment trial, the State, through a motion for reconsideration, used a conviction that was alleged solely as a jurisdictional enhancement in the indictment to enhance his sentence. 152 S.W.3d 645 (Tex. App.-Texarkana 2004, pet. granted). The court of appeals also agreed with the trial court that the State's letter notice of enhancement, sent eleven days before trial, was untimely. Here in Villescas, the majority says that due process is the only relevant consideration and that it is satisfied if notice of enhancement is given any time before punishment and the defendant has a reasonable time within which to respond. If so, then the Court could have held that the defendant in McNatt was not entitled to a new penalty hearing since due process was satisfied by the state's giving some notice before the punishment hearing. Under the majority opinion in the case before us, the separate issue of the timeliness of the notice is of no consequence. In fact, the State would be prudent to ask for rehearing in McNatt in order to avoid another punishment hearing, since due process is now the only violation that you can have.

11. 957 S.W.2d at 33 (holding that "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.").

12. Sears, 91 S.W.3d at 455 (explaining that ten days' notice is considered sufficient in a number of instances, including the time appointed counsel is allowed to prepare; the time a defendant is given, upon request, to respond to an amended indictment; and the time that a probationer is entitled to be served with a motion to revoke). In addition to the Beaumont court of appeals, the Fort Worth, El Paso, Amarillo, Texarkana, and Dallas courts of appeals have all observed that ten days' notice is presumptively reasonable. See, e.g., Williams v. State, 172 S.W.3d 730, 734 (Tex. App.-Fort Worth 2005, pet. ref'd); Villescas, No. 08-03-00131-CR, 2005 Tex. App. LEXIS 1118, at *6; Lewis v. State, No. 07-04-0386-CR, 2005 Tex. App. LEXIS 3940, at *4 (Tex. App.-Amarillo May 18, 2005, no pet.) (not designated for publication); McNatt, 152 S.W.3d at 651; Fairrow v. State, 112 S.W.3d 288, 294 (Tex. App.-Dallas 2003, no pet.).

13. See Hackett v. State, 160 S.W.3d 588 (Tex. App.-Waco 2005, pet. ref'd) (holding that the State's notice of its intent to use prior convictions for enhancement was a de facto amendment of the indictment, requiring a minimum of ten days' notice under Article 28.10(a) of the Texas Code of Criminal Procedure).