Cecil Jackson Hackett v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00269-CR

Cecil Jackson Hackett,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2003-428-C

CONCURRING Opinion

          Legislating from the bench.  You will hear almost every judicial candidate say that is not the role of the judiciary and that, if elected, they will not do it.  I would be hard pressed to find a better example of legislating from the bench than what the Court does in this case.  The Court properly states the test which comes from prior interpretation of the statute.  Then the Court simply ignores the statute as written, jettisons the interpreted test, and states what will be required. 

When the statute, as written by the legislature, only requires “reasonable notice,” we do not have the right to judicially add “but in no event, less than ten days.” That truly is rewriting the statute. But I digress.  The analysis is wrong.  The result is right.  I concur only in the result.

The Court errs in the following particulars, some of which are compound errors because they are based upon other errors:

1. Holding that the State must give no less than 10 days notice.

2. Holding that the State’s notice is a “defacto amendment of the indictment.”

3. Assuming, arguendo, that it is a defacto amendment, the Court errs in not reviewing the “amendment” to the indictment under the law applicable to amending the indictment.

4. By requiring Hackett to file a motion for continuance to “show harm.”

DeFacto Indictment/

Ten Days’ Notice

(Errors 1, 2, and 3)

          The Court holds that when the State files a separate pleading giving notice of enhancement allegations, it must be filed a minimum of ten days before the trial date.  That is because the Court holds, without citing any authority, that a sentence enhancement notice is a de facto amendment of the indictment and “the Code of Criminal Procedure requires a minimum of ten days’ notice for an amendment to an indictment.”

“but in no event less than ten days”

          While 10 days notice has been held to be presumptively reasonable, the Court offers no explanation as to why anything less is unreasonable as a matter of law. 

          The Court’s reliance on the Code of Criminal Procedure is entirely misplaced.  The Code does not require a minimum of ten days’ notice to amend an indictment.  It provides:

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 of 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.

Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989) (emphasis added).  This provision places the burden on the defendant to ask for a continuance before any time requirement kicks in following an amendment to an indictment or information. 

“defacto amendment”

          And who, besides two justices on this Court, thinks this is an amendment?  Hackett didn’t say it was an amendment.  He did not ask us to consider it as an amendment.  He did not even argue in the Motion to Quash or in his oral argument in support thereof, contrary to what the Court says, that notice of a sentence enhancement needs to be no less than 10 days.  He contended that the notice filed by the State was unreasonably late and argued that he was entitled to reasonable notice.  The State certainly did not argue it was an amendment.  Just because the Court is not reversing this case on unargued error, does not mean we can still raise an issue and give an advisory opinion about something no one ever raised at trial or here.  See Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) ("ordinary notions of procedural default" are violated when a Court of Appeals reverses a trial court's decision on a legal theory not presented to the trial court by the complaining party); Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991) (the courts are without authority to render advisory opinions); Garrett v. State, 749 S.W.2d 784, 803 (Tex. Crim. App. 1988) (judicial power does not include the power to issue advisory opinions).

 “review as an amendment”

          But if this is an amendment, then why does the Court not analyze the issue as an amendment issue and use the related harm analysis for untimely amendments?  Aside from the fact that an amendment has to be an alteration to the indictment, which we do not have, typically, an amendment cannot be made to the indictment over the objection of the defendant after the trial has started.  Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997); Sodipo v. State, 815 S.W.2d 551, 556 (Tex. Crim. App. 1990); see Tex. Code Crim. Proc. Ann. art. 28.10(b) (Vernon 1989). However, an amendment can be made at anytime before trial.  Id. at art. 28.10(a).  If this was really an amendment, and I’m not saying it was, it was made before trial, and Hackett could have asked for a ten day period to respond to the “amendment.”

          But he didn’t. 

Harm Analysis/Preservation

(Error 4)

          And because Hackett didn’t request a continuance, the Court is holding that he wasn’t harmed by the trial court’s “error.”

          Is this part of the harm analysis for amending indictments or for timeliness of notice of enhancement allegations?  Harm for an improper amendment to an indictment is analyzed under Rule 44.2(b) because that type of error is non-constitutional.  Westfall v. State, 970 S.W.2d 590, 596 (Tex. App.—Waco 1998, pet. ref’d).  I have found no case that determines an amendment error was harmless because the defendant did not request a continuance.  Then is the Court’s analysis part of the harm analysis for an untimely notice of enhancement allegations?  This type of error has been deemed constitutional.  Sears v. State, 91 S.W.3d 451, 455 (Tex. App.—Beaumont 2002, no pet.); contra Fairrow v. State, 112 S.W.3d 288, 295 (Tex. App.—Dallas 2003, no pet.).  The few cases that have discussed harm here have not taken into consideration at all whether or not a continuance was requested.

          So where does this come from?  The cases relied upon by the Court are cases in which witnesses were called that were not on the witness list supplied to the defendant. The Court fails to explain how these cases are analogous to the defacto amendment analysis. 

          And by requiring a motion for continuance, is the Court really saying that a request for a continuance is a preservation requirement?  Are they actually holding that to preserve a complaint about unreasonable notice for appellate review the complaint must be brought to the trial court’s attention by a timely request, motion, or objection that the trial court rules on or refuses to rule on?  Tex. R. App. P. 33.1.  But Hackett had already obtained an adverse ruling on his motion to quash.  Need there be more?  Or is this more of a presentment requirement and because the request for continuance was not made, we have nothing to review?  No error, no harm.

          An argument can be made for either analysis. For example, in cases where defendants have been denied a challenge for cause, the request for more peremptory strikes has been characterized as a part of a preservation requirement and as a part of a harm analysis.  If used as a preservation requirement, there is no need to proceed further through an error analysis if any requirement is missing.  See Mathis v. State, 67 S.W.3d 918, 922 (Tex. Crim. App. 2002).  If used in a harm analysis, the reviewing court has already determined the denial of the challenge for cause was improper, and such denial has the harmful effect of wrongfully depriving a defendant of a peremptory challenge, as long as he requests and is denied additional peremptory challenges.  See Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App. 2004).

          Which is it here?

          If a continuance is required, is it that there is no error, i.e., it is not unreasonable because the defendant obviously did not need any more time, or is it that the defendant was not harmed—yes the notice was not reasonable, but the defendant cannot opt for having the enhancement allegations dropped, and because he chose the wrong option, he did not say the magic words regarding a continuance, he loses.

Conclusion on Their Analysis

          I cannot join the Court’s opinion without knowing what’s driving the decision and what’s in the opinion is not helping me make that analysis.

A Proper Analysis

          With that said, the following is a proper analysis of this appeal.

          Cecil Jackson Hackett was convicted of theft over $20,000.  Hackett pled true to two prior felony convictions and the jury assessed punishment at life in prison.  We affirm the judgment of the trial court.

          In his first issue, Hackett contends that the State’s notice of its intent to enhance the punishment was untimely.  The State filed its notice on July 30, 2003, the Wednesday prior to the Monday trial, alleging eight prior convictions.  On July 31, 2003, the State filed an amended notice, correcting a typographical error in the seventh listed conviction.  Hackett filed a motion to quash which was heard and denied on Monday, the day of trial.

          Defendants are entitled to notice of prior convictions to be used for punishment enhancement.  Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997).  Ten days’ notice is presumptively timely.  See Fairrow v. State, 112 S.W.3d 288, 294 (Tex. App.—Dallas 2003, no pet.); Sears v. State, 91 S.W.3d 451, 455 (Tex. App.—Beaumont 2002, no pet.).  Seven days’ notice has been held to be “ample.”  Castilla v. State, No. 05-01-01776-CR, 2002 Tex. App. LEXIS 7263, *11 (Tex. App—Dallas Oct. 10, 2002, no pet.) (not designated for publication).

The question we must decide is whether notice given five days before trial is timely. Hackett cites one case to support his claim that the State’s notice is untimely.  See Sears v. State, 91 S.W.3d 451 (Tex. App.—Beaumont 2002, no pet.).  In Sears, the

Beaumont Court

determined that notice given on the Friday before a Monday trial was untimely, especially in light of the fact that the State had listed the same conviction in a notice of its intent to introduce the conviction under Texas Rule of Evidence 609 some seven days earlier.  Id. at 453-455. Following the lead in Sears, the

Dallas Court

, in Fairrow, held that oral notice by the trial court on the day of trial, if proper, was untimely where the State had filed a notice of extraneous offenses three days prior to trial.  Fairrow, 112 S.W.3d at 294-295.

          In both of these cases, the State knew of the convictions several days before notice was actually given of its intent or ability to enhance the defendants’ punishments.  In Hackett’s case, on the 30th of July, the State inadvertently discovered recent convictions that it could use to enhance Hackett’s punishment. The State knew of two very old convictions under one TDCJ number for Hackett.  And while trying to obtain the pen packets for those convictions, on the afternoon of the 30th, the State discovered a number of more recent convictions under another TDCJ number for Hackett.  The State immediately, on that day, gave notice of its intent to enhance Hackett’s punishment with the additional allegations it had discovered.

          The State gave notice of the convictions to be used as enhancements as soon as those convictions were discovered. Hackett, as the defendant, was well aware of the convictions.  The issue is whether the State gave reasonable notice of its intent to use these convictions as punishment enhancements.  Under these circumstances, we conclude that five days’ notice is reasonable.  Hackett’s first issue is overruled.

But because the Court commits several errors in reaching the proper result, I concur only in affirming the trial court’s judgment.

                                                                   TOM GRAY

                                                                   Chief Justice

Concurring opinion delivered and filed February 9, 2005

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