Rogelio Roy Suarez v. State

NUMBER 13-17-00085-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROGELIO ROY SUAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 357th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Contreras
A jury convicted appellant, Rogelio Roy Suarez, of one count of aggravated assault
with a deadly weapon involving family violence, a second-degree felony, and one count
of injury to a child, a third-degree felony, with the punishment for both charges enhanced
due to a prior felony conviction. See TEX. PENAL CODE ANN. §§ 12.42(a), (b), 22.02(a)(2),
22.04(a)(3), (f) (West, Westlaw through 2017 1st C.S.). By a single issue, appellant
argues that he was provided with inadequate notice of the State’s intent to enhance his
punishment. We affirm.
I. BACKGROUND
Appellant was indicted on October 5, 2016 on three counts: (1) aggravated assault
with a deadly weapon involving family violence; (2) injury to a child; and (3) assault-family
violence. See id. §§ 22.01(a)(1), (b-1), 22.02(a)(2), (b)(1), 22.04(a)(3), (f) (West, Westlaw
through 2017 1st C.S.). In the indictment, only the assault-family violence charge
included an enhancement allegation for a prior felony conviction for continuous family
violence. See id. §§ 12.42, 25.11 (West, Westlaw through 2017 1st C.S.). The
enhancement allegation provided the offense, the date, the convicting court, and the
cause number for the continuous family violence conviction that the State sought to use
to enhance appellant’s punishment.
At trial, the evidence showed that on July 13, 2016, appellant was traveling in a
car with his girlfriend Daisy Cruz and her daughter C.C.1 During the car ride, an argument
erupted between appellant and Daisy, and appellant attacked Daisy and attempted to
stab her with a screwdriver. In doing so, appellant elbowed C.C. in the mouth as she was
defending her mother. Despite filing previous reports and initially cooperating with police,
while on the stand, Daisy denied having any recollection of the events surrounding
appellant’s charges.
After the close of the State’s case-in-chief, appellant moved for a directed verdict
on the charge for assault-family violence, and the court granted it.2 Appellant then took
1 Appellant and Daisy have since married. We refer to the minor victim by her initials to protect her
privacy.
2
The assault-family violence charge arose from an incident separate from the one which resulted
in the other two charges. However, Daisy was the alleged victim for both the assault-family violence charge
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the stand and denied the allegations against him, but admitted to being previously
convicted for the continuous family violence charge referenced in the indictment. On
January 19, 2017, the case went to the jury for a determination of guilt on the remaining
two counts, and the jury returned a guilty verdict for both.
Before the punishment phase began, the State filed a notice of intent to enhance
the punishment for the two charges of which appellant was convicted: (1) aggravated
assault with a deadly weapon family violence, and (2) injury to a child. The conviction
that the State sought to use for enhancement was the same conviction that had been
alleged under the assault-family violence charge in the indictment. Appellant objected to
the enhancement because the form was improper, the notice was improper, and
“filing . . . for an enhancement [at that time] would not be proper.”
On January 20, 2017, the court heard arguments from counsel on the State’s
notice to enhance, and appellant filed a motion to strike the enhancement in which he
argued that: (1) notice of the enhancement was improper and an infringement of his due
process rights; (2) as a result he was prevented from questioning jurors during voir dire
in violation of the Fifth and Sixth Amendments to the United States Constitution and under
article one, sections ten and nineteen of the Texas Constitution; and (3) enhancement of
the punishment for both charges posed a “constitutional problem [because] it increase[d]
the maximum possible punishment that is established in the statute for each offense.” 3
and the aggravated assault with a deadly weapon charge. Daisy testified that she could not remember any
of the events in regard to the assault-family violence charge, and the State was unable to provide any other
evidence in support thereof. C.C. and law enforcement personnel testified as to the other two charges.
3 As a result of the enhancement, the punishment range for the charge for assault with a deadly
weapon increased from two-to-twenty years to five-to-ninety-nine years. See TEX. PENAL CODE ANN. §§
12.33, 12.42(b), 22.02 (West, Westlaw through 2017 1st C.S.). The punishment range for the injury to a
child charge was increased from two-to-ten years to two-to-twenty years. See id. §§ 12.34, 12.42(a), (b),
22.04 (West, Westlaw through 2017 1st C.S.).
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The court overruled appellant’s objections, and appellant moved for a continuance, which
the court denied.
The punishment phase began that same day, and appellant pleaded “true” as to
the enhancement allegation for the previous conviction for continuous family violence.
The jury found the enhancement allegation true and assessed punishment at thirteen
years’ imprisonment for each count. The court then sentenced appellant with the
sentences to run concurrently. This appeal followed.
II. APPLICABLE LAW
When the State seeks to enhance a defendant’s punishment with evidence of a
prior conviction, the defendant’s right to notice of the prior conviction is grounded in due
process. Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006). “The accused
is entitled to a description of the judgment of former conviction that will enable him to find
the record and make a preparation for a trial of the question of whether he is the named
convict therein.” Id. (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App.
1978)). Proper notice of intent to enhance punishment must be given in a timely manner,
but it need not be pleaded in the indictment itself to be considered proper notice, so long
as it is pleaded “in some form.” Ketchum v. State, 199 S.W.3d 581, 592 (Tex. App.—
Corpus Christi 2006, pet. ref’d) (citing Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim.
App. 1997)).
“[F]or purposes of conducting a due-process analysis, the determination of
whether proper notice of enhancements was given does not require that notice be given
within a particular period of time before trial or before the guilt phase is completed.”
Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010). “[A] defendant’s federal
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constitutional due-process rights are not violated by post-guilt, pre-punishment-phase
notice of the State’s intent to enhance his punishment with a prior conviction.” Ex parte
Parrott, 396 S.W.3d 531, 537 (Tex. Crim. App. 2013) (citing Pelache, 324 S.W.3d at 577).
“Even when a defendant receives notice after he has been convicted, his due-process
rights are not violated as long as notice is sufficient to enable him ‘to prepare a defense
to them,’ and he is afforded an opportunity to be heard.” Id. (quoting Pelache, 324 S.W.3d
at 577). Rather, “[i]n determining whether appellant received sufficient notice of the
State’s intent to enhance punishment, we look to the record to identify whether appellant’s
defense was impaired by the timing of the State’s notice.” Pelache, 324 S.W.3d at 577.
When the accused has no defense to the enhancement allegation and has not
suggested the need for a continuance to prepare one, notice given at the beginning of
the punishment phase satisfies due process. Villescas, 189 S.W.3d at 294; see Ex parte
Parrott, 396 S.W.3d at 537.
III. DISCUSSION
By one issue, appellant argues that he was provided with inadequate notice of the
State’s intent to enhance his punishment.
Appellant first argues that the State’s notice of enhancement filed after the guilt-
and-innocence phase of trial violated his due process rights. Here, the indictment
included an enhancement allegation identifying the previous conviction that was later
used to enhance the two charges that resulted in convictions. The indictment also
provided appellant with the specific offense, the date of the offense, the county and court
where the judicial proceedings took place, and the cause number for the proceedings.
Thus, we conclude that appellant had notice from the date of the indictment of the State’s
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intent to enhance punishment by using his prior felony conviction for continuous family
violence. See Villescas, 189 S.W.3d at 293. And, the indictment was filed 104 days
before trial began. Therefore, appellant had sufficient notice “to make a preparation for
a trial of the question of whether he [was] the named convict” for that offense, and his
argument that notice was given after the guilt-and-innocence phase of trial is without
merit. Id.; see Oyler v. Boles, 368 U.S. 448, 504 (1962).
The record also reflects that appellant’s defense was not impaired in any way—
appellant neither denied nor contested the allegation that he had been convicted of that
previous felony; rather, appellant admitted during his testimony at trial that it was he who
had been convicted of the alleged offense, and he pled “true” to the allegation during the
punishment phase. See Pelache, 324 S.W.3d at 577. Thus, the enhancement of
appellant’s punishment with his prior conviction for continuous family violence did not
violate his due-process rights. See Ex parte Parrott, 396 S.W.3d at 537; Pelache, 324
S.W.3d at 577; Villescas, 189 S.W.3d at 294.
Appellant also appears to argue within this sub-issue that the enhancement of his
punishment according to the statute was unconstitutional. However, the statute has been
upheld as constitutional. See, e.g., McCardell v. State, 557 S.W.2d 289, 291 (Tex. Crim.
App. 1977); Schultz v. State, 510 S.W.2d 940, 944 (Tex. Crim. App. 1974). Accordingly,
we reject this argument.
Finally, appellant argues that, as a result of the State’s late notice of its intent to
enhance, he was prevented from questioning jurors during voir dire about any existing
bias over the maximum possible sentence. However, having previously concluded that
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appellant received timely and sufficient notice of the State’s intent to enhance, this
argument necessarily fails.
We overrule appellant’s sole issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of March, 2018.
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