Larry Meyer v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00217-CR
LARRY MEYER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-03204-B
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MEMORANDUM OPINION1
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A jury found Appellant Larry Meyer guilty of the offense of driving while
intoxicated with a previous conviction for driving while intoxicated and assessed
his punishment at 180 days in jail and a $2,500 fine. Tex. Penal Code Ann.
§ 12.43(a) (West 2011), §§ 49.04(a), 49.09(a) (West Supp. 2016). In one issue,
Appellant argues that the trial court erred by overruling his objection and allowing
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See Tex. R. App. P. 47.4.
the State to amend the information on the day of trial and by denying his request
for a ten-day continuance. We affirm.
BACKGROUND
On May 2, 2014, the State filed an information containing three
paragraphs. In the first paragraph, the State charged Appellant with driving while
intoxicated, a Class B misdemeanor. Id. § 49.04(a), (b). The second paragraph
alleged a prior conviction for driving while intoxicated, which, if true, raised the
punishment range to a Class A misdemeanor with a minimum term of
confinement of thirty days. Id. § 49.09(a). The third paragraph alleged that
Appellant had an alcohol concentration at or above 0.15, which, if true, also
would have raised the punishment range to a Class A misdemeanor but without
the minimum term of confinement. Id. § 49.04(d). On December 11, 2014, the
State filed a “Notice of State’s Intent to Enhance Punishment Range” in which it
alleged that it was seeking a further enhancement of Appellant's punishment
range based upon his Class A misdemeanor conviction for criminal trespass in
2000. We refer to this as the State’s “enhancement notice.” Assuming
Appellant’s punishment was otherwise a Class A misdemeanor, this allegation, if
true, raised the minimum term of confinement to not less than ninety days. Id.
§ 12.43(a)(2).
On June 22, 2015, Appellant entered a guilty plea to the offense of driving
while intoxicated alleged in the information. Appellant entered a plea of true to
the paragraph alleging his prior conviction for driving while intoxicated. The State
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abandoned the paragraph alleging a blood alcohol concentration at or above
0.15. Appellant indicated his intent to stipulate to the prior conviction of criminal
trespass alleged by the State’s enhancement notice:
[Defense counsel]: I think we’ve already entered a plea of true to
the enhancement. As far as the admissibility of the prior criminal
history that the [S]tate’s disclosed to me, we’ll stipulate to both of
those. So there won’t be a need for any kind of identification, or
fingerprinting, or things of that nature.
The Court: Okay.
[Defense counsel]: And it’s my understanding they just have two.
They have a prior conviction for criminal trespass in 2000, and then,
of course, the prior DWI conviction that’s in the Information.
[Prosecutor]: That’s correct.
[Defense counsel]: And actually, Judge, I don’t know—it would be
kind of unusual, but I wouldn’t have a problem going ahead and
proceeding. If the [S]tate doesn’t have any witnesses, we could go
ahead and put on our witnesses and then adjourn until they can get
theirs in.
After agreeing to stipulate to the alleged prior conviction for criminal trespass in
the State’s enhancement notice, Appellant argued that the notice constituted an
amendment to the information, requiring a ruling by the trial court, and because
the trial court made its ruling on the date of trial, Appellant was entitled to either a
ten-day continuance or to have the enhancement notice stricken pursuant to
articles 28.10 and 28.11 of the code of criminal procedure. See Tex. Code Crim.
Proc. Ann. arts. 28.10–.11 (West 2006). Appellant characterized the State’s
enhancement notice as a motion for leave to amend the information that required
an order granting it. The trial court stated that the State did not file a motion to
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amend the information and verified with the State that its position was that it was
entitled to the enhancement provision without having to amend the information.
The trial court denied Appellant’s request for a continuance and allowed the
State to proceed on the enhancement. The judgments for the prior convictions
for the offenses of driving while intoxicated and criminal trespass were admitted
during trial.
Appellant conceded at trial and on appeal that adequate notice had been
supplied for the State’s enhancement notice. The State filed its enhancement
notice on December 11, 2014. Trial was on June 22, 2015.
ARGUMENT
In one issue, Appellant argues that the trial court violated articles 28.10
and 28.11 of the code of criminal procedure and reversibly erred when it
overruled his objection, denied his request for a ten-day continuance, and
allowed the State to amend its information on the day of trial. We disagree that
articles 28.10 and 28.11 apply.
Article 28.10 of the code of criminal procedure provides,
(a) After notice to the defendant, a matter of form or substance
in an indictment or information may be amended at any time before
the date the trial on the merits commences. On the request of the
defendant, the court shall allow the defendant not less than 10 days,
or a shorter period if requested by the defendant, to respond to the
amended indictment or information.
(b) A matter of form or substance in an indictment or
information may also be amended after the trial on the merits
commences if the defendant does not object.
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(c) An indictment or information may not be amended over the
defendant’s objection as to form or substance if the amended
indictment or information charges the defendant with an additional or
different offense or if the substantial rights of the defendant are
prejudiced.
Tex. Code Crim. Proc. Ann. art. 28.10.
Article 28.11 of the code of criminal procedure provides,
All amendments of an indictment or information shall be made
with the leave of the court and under its direction.
Id. art. 28.11.
We agree with the State’s position that these statutory provisions do not
apply because the State did not file a motion to amend the information. Rather,
the State filed a notice of intent to enhance the punishment range pursuant to
Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). The State
proceeded to trial on the information as originally drawn. Enhancement
paragraphs need not be pled in the indictment or information. See id. at 33–34.
Enhancement paragraphs must, however, be pled in some form. Id. at 34.
The “Notice of State’s Intention to Enhance Punishment Range” provided,
Comes now the State of Texas, by and through her Assistant
Criminal District Attorney, Zane Reid, and files this notice of intention
to enhance the punishment range to a 90 day minimum jail sentence
using a prior Felony conviction or prior Class A Misdemeanor
conviction, pursuant to section 12.43 of the Texas Penal Code, and
would show the court the following:
I.
Before the commission of the offense alleged above:
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1. The Defendant was convicted of Criminal Trespass (of a
habitation-class A) on or about July 12, 2000 in Denton County,
Texas in Cause No. 2000-02145-B.
A “pleading” is “[a] formal document in which a party to a legal proceeding
(esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or
defenses.” Pleading, Black’s Law Dictionary (10th ed. 2014). We hold that the
State’s December 11, 2014 “Notice of State’s Intention to Enhance Punishment
Range” satisfied the requirement articulated in Brooks that the enhancement had
to be pled somewhere. See Villescas v. State, 189 S.W.3d 290, 291, 295 (Tex.
Crim. App. 2006) (holding State’s “notice of enhancement” describing a prior
burglary conviction was sufficient notice); Brooks, 957 S.W.2d at 34 (“prior
convictions used as enhancements must be pled in some form, but they need not
be pled in the indictment”); Hudson v. State, 145 S.W.3d 323, 326 (Tex. App.—
Fort Worth 2004, pet. ref’d) (“[T]he 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 also Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App.
1978) (“The accused is entitled to a description of the judgment of former
conviction that will enable him to find the record and make preparation for a trial
of the question whether he is the convict named therein.”); Williams v. State,
172 S.W.3d 730, 736 (Tex. App.—Fort Worth 2005, pet. ref’d) (same); cf.
Throneberry v. State, 109 S.W.3d 52, 59 (Tex. App.—Fort Worth 2003, no pet.)
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(“[W]e cannot conclude that an informal letter [sent by the prosecutor to defense
counsel] admitted into evidence after the guilt-innocence phase constitutes a
pleading in any form.”).
We also hold that articles 28.10 and 28.11 of the code of criminal
procedure do not apply to enhancements. Both apply to amendments to an
indictment or an information. As shown by Brooks, enhancements are
independent of an indictment or an information. See Brooks, 957 S.W.2d at 33–
34. The United States Supreme Court has written,
Even though an habitual criminal charge does not state a
separate offense, the determination of whether one is an habitual
criminal is [“]essentially independent[”] of the determination of guilt
on the underlying substantive offense. Thus, although the habitual
criminal issue may be combined with the trial of the felony charge,
[“]it is a distinct issue, and it may appropriately be the subject of
separate determination.[”]
Oyler v. Boles, 368 U.S. 448, 452, 82 S. Ct. 501, 503–04 (1962) (citations
omitted) (quoting respectively Chandler v. Fretag, 348 U.S. 3, 8, 75 S. Ct. 1, 4
(1954), and Graham v. West Virginia, 224 U.S. 616, 625, 32 S. Ct. 583, 586,
(1912)).
Articles 28.10 and 28.11 govern indictments and informations.
Enhancements are not governed by the same rules as indictments and
informations. See Brooks, 957 S.W.2d at 33–34; Sheppard v. State, No. 04-13-
00037-CR, 2014 WL 2601613, at *1, *4 (Tex. App.—San Antonio June 11, 2014,
pet. ref’d) (mem. op., not designated for publication) (holding that unruled-upon
motion to amend indictment filed eleven months before trial provided both
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sufficient pleading and sufficient notice); see also Oyler, 368 U.S. at 452, 82
S. Ct. at 503–04. We have previously declined to hold that “a separate
enhancement notice that could affect punishment is a ‘de facto’ amendment to
the indictment requiring a minimum of ten days’ notice in compliance with article
28.10(a).” Williams, 172 S.W.3d at 736. We accordingly hold that the trial court
did not err by overruling Appellant’s objections based upon articles 28.10 and
28.11.
Appellate courts review the denial of a motion for continuance under an
abuse of discretion standard. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim.
App. 1996), cert. denied, 522 U.S. 825 (1997). To show an abuse of discretion,
there must be a showing of actual prejudice. Id. Because the State filed its
notice approximately six months before trial, because the notice was all Appellant
was entitled to, because Appellant acknowledged at trial and in his brief he had
adequate notice, and because Appellant indicated at trial he was willing to
stipulate to the enhancement—thereby showing he was aware of it and had
determined not to contest it—Appellant cannot show harm. Tex. R. App. P.
44.2(b); see Wright v. State, 28 S.W.3d 526, 531–32 (Tex. Crim. App. 2000),
cert. denied, 531 U.S. 1128 (2001).2 We hold that the trial court did not abuse its
discretion by denying Appellant’s motion for continuance. See id.
2
Wright was superseded on other grounds by statute. See Coleman v.
State, No. AP-75478, 2000 WL 4696064, at *11 (Tex. Crim. App. Dec. 9, 2009)
(not designated for publication), cert. denied, 562 U.S. 843 (2010).
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We overrule Appellant’s sole issue.
CONCLUSION
Having overruled Appellant’s sole issue, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT and GARDNER, JJ.; and KERRY FITZGERALD (Senior
Justice, Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 30, 2016
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