Timothy Lynn Hall v. State ( 2006 )

Opinion filed April 13, 2006

Opinion filed April 13, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00222-CR

                                                    __________

                                  TIMOTHY LYNN HALL, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                             On Appeal from the 185th District Court

                                                            Harris County, Texas

                                                     Trial Court Cause No. 977663

                                                                   O P I N I O N

The trial court convicted Timothy Lynn Hall of possession of cocaine in an amount less than one gram.  The trial court found the enhancement paragraphs to be true and sentenced appellant to fifteen years confinement.  We affirm.

We must first address the State=s contention that this court lacks jurisdiction over this cause because appellant failed to timely file a written notice of appeal.  Appellant was convicted of criminal trespass in No. 11-05-00018-CR^[1] and possession of cocaine in No. 11-05-00222-CR. The offenses were tried together before the trial court on December 6, 2004.  Appellant filed a notice of appeal in No. 11-05-00018-CR on December 13, 2004. Appellant filed a pro se AMotion for Appointment of a Court Appointed Appellate Attorney@ in No. 11-05-00222-CR on December 20, 2004.

Under the Texas Rules of Appellate Procedure, a defendant who wishes to appeal a conviction must give notice in writing and file the notice with the trial court clerk. Tex. R. App. P. 25.2(c)(1).  ANotice is sufficient if it shows the party=s desire to appeal from the judgment.@  Tex. R. App. P. 25.2(c)(2); see Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003).  Where an appellant has timely filed a document with the clerk of the trial court that demonstrates his desire to appeal, that document should be construed as a notice of appeal. Palma v. State, 76 S.W.3d 638, 641-42 (Tex. App.CCorpus Christi 2002, pet. ref=d);  Cooper v. State, 917 S.W.2d 474, 477 (Tex. App.CFort Worth 1996, no pet.). A written request for a copy of the record and for appointment of appellate counsel has been recognized as sufficient to serve as a notice of appeal. Palma, 76 S.W.3d at 641-42; Massey v. State, 759 S.W.2d 18, 19 (Tex. App.CTexarkana 1988, no pet.).

At a hearing on appellant=s motion for appointment of an appellate attorney, the State acknowledged that appellant Adid appear to evidence a desire to take his case up on appeal.@ Appellant=s motion states that he is indigent and in need of a court appointed attorney.   We find that appellant=s motion requesting a court appointed attorney on appeal demonstrates his desire to appeal his conviction.  See Jones, 98 S.W 3d at 703; Palma, 76 S.W.3d at 641-42.  Therefore, we have jurisdiction to consider appellant=s issue on appeal.

In his sole issue on appeal, appellant argues that the trial court=s sentence is illegal.  Appellant was charged with possession of less than one gram of cocaine, a state jail felony.  Tex. Health & Safety Code Ann. ' 481.102(3)(D) (Vernon Supp. 2005), ' 481.115(b) (Vernon 2003).  Tex. Pen. Code Ann. ' 12.35(a) (Vernon 2003) provides that an individual found guilty of a state jail felony shall be punished Aby confinement in a state jail for any term of not more than two years or less than 180 days.@  The indictment alleged two enhancement paragraphs for the offenses of delivery of a controlled substance, a state jail felony, and possession of a controlled substance, a second degree felony.  Tex. Pen. Code Ann. ' 12.42(a) (Vernon Supp. 2005) states:

(1) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a third‑degree felony.

(2) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second‑degree felony.

The trial court assessed appellant=s punishment within the range of a second degree felony pursuant to Section 12.42(a)(2).  However, the statute does not provide for an enhancement with one state jail felony and one non-state jail felony. Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001); Waits v. State, 56 S.W.3d 894, 896 (Tex. App.C Fort Worth 2001, no pet.). Therefore, the trial court could not enhance appellant=s sentence with the two offenses as alleged in the indictment. 

During the punishment phase, the State offered proof of three prior convictions committed by appellant:  (1) a state jail felony committed on July 22, 1996, as alleged in the indictment; (2) a second degree felony committed on April 26, 1991, as alleged in the indictment; and (3) a third degree felony committed on April 28, 1988, that was not alleged in the indictment.  The State offered proof of two prior non-state jail felonies so as to allow the trial court to sentence appellant within the range provided for a second degree felony as provided in Section 12.42(a)(2). The question before us is whether the State could use proof of a prior felony conviction for enhancement purposes when that conviction was not included as an enhancement paragraph in the indictment.

A defendant is entitled to notice of prior convictions to be used for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997).  However, alleging an enhancement in the indictment is not the only reasonable method of conveying such notice.  Id.  It is only required that the State plead notice of intent to use enhancements in some form.  Id. There are four components of a proper notice of intent to use a prior conviction to enhance a sentence:  (1) a writing; (2) given in a timely manner; (3) describing the prior conviction to be used, sufficient to enable the defendant to find the records so he can properly prepare for trial on the question of whether he is the same person identified in the records of such conviction; and (4) containing an expression of intent to use the conviction to enhance the defendant=s sentence. McNatt v. State, 152 S.W.3d 645, 652 (Tex. App.CTexarkana 2004), rev=d in part on other grounds and aff=d in part, 2006 WL 786924 (Tex. Crim. App. March 29, 2006). 

On August 18, 2004, the State filed its notice of intent to use evidence of prior convictions and extraneous offenses.  That notice was provided more than ten days prior to trial and included  the trial court cause number, the county, the court number, and the date of conviction for each  felony offense used as an enhancement. The notice further stated that the State intended to offer evidence of prior convictions to Aimpeach the testimony and/or enhance the range of punishment of [appellant].@ The State=s motion provided appellant with the required notice of its intent to use  Cause No. 0500096, the third degree felony, for enhancement purposes.

At the punishment hearing, appellant pleaded true to both enhancement paragraphs.  The State introduced appellant=s stipulation of evidence in which he admited that he was the same person who was convicted of the offenses alleged in the enhancements.  The stipulation of evidence also states that he was convicted of the offense in Cause No. 0500096.  Appellant and his trial counsel signed the stipulation.  The State introduced the judgment and sentence in the state jail felony and the penitentiary packets for each of the non-state jail felonies.  The stipulation of evidence and documents proving each of the prior convictions were admitted without objection.  See Tex. R. App. P. 33.1(a). 

The trial court found both of the enhancement allegations in the indictment to be true. The State presented evidence that appellant was previously convicted of two non-state jail felonies so as to allow the trial court to enhance punishment to that of a second degree felony as provided in Section 12.42(a)(2).  Because the sentence imposed is within the range of a second degree felony, we find that the trial court implied a finding of true in Cause No. 0500096.  Appellant=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

April 13, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J. and Strange, J.

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^[1]On September 22, 2005, this court granted appellant=s motion to withdraw his notice of appeal in Cause No. 11-05-00018-CR.