Late Notice of Enhancement and Ways to Deal with It

Key cases:

Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006)

Pelache v. State, 324 S.W.3d 568 (Tex. Crim. App. 2010)


Texas Law
Texas law once required sentence enhancement allegations to be included in an indictment in order to be valid. Ex parte Patterson, 740 S.W.2d 766, 776 (Tex. Crim. App. 1987); White v. State, 500 S.W.2d 529, 530–531 (Tex. Crim. App. 1973). However, recent cases have held that the indictment is not the only acceptable method of conveying the constitutionally required notice of an intent to enhance an offense. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). Although it is no longer required that the indictment contain enhancement allegations―so long as the defendant still receives reasonable notice concerning the state’s intent to prove the facts necessary for enhancement―“it is permissible and perhaps preferable to do so.” Id.

The controlling question with an enhancement added after the indictment has been filed is “whether constitutionally adequate notice [of the enhancement] was given [to the defendant].” Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006).

In Villescas, the Court of Criminal Appeals considered an appeal by an individual who received notice, six days before trial, that his offense would be enhanced. Id. at 291. The Court rejected the intermediate-appellate court’s conclusion that the Code of Criminal Procedure required ten days notice before trial of the enhancement and instead held that “The ultimate question is whether constitutionally adequate notice was given.” Id. at 291−92. The Court, in dicta, went further, citing to Oyler v. Boles, and wrote, “when a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution.” Id. at 291. This statement is the most frequently cited reason to deny relief.

Methods to Deal with Late Enhancements
The most important thing to do is to object and to claim that additional time is needed to investigate the new enhancement. There is no need to bring forward evidence at this point that the enhancement is not valid, instead just make the objection.

Ruth v. State
In Ruth, the Corpus Christi Court of Appeals considered a case in which the indictment included an enhancement paragraph. Ruth v. State, 2012 Tex. App. LEXIS 7316, 2012 WL 3755607, at *1−20 (Tex. App.―Corpus Christi Aug. 29, 2012 pet. ref’d.). On the day that trial began, the attorney for the State “filed an amended notice of intent to seek enhancement. The amended notice abandoned the [original enhancement allegation] and instead alleged [a new enhancement].” Id. at *2. Ruth’s counsel objected to the new enhancement paragraph. Id. at *2.

The intermediate-appellate court held that:

The pertinent issue is not whether Ruth and his counsel were aware of the mere existence of the prior theft convictions; evidently, they were aware of those convictions by virtue of the State’s extraneous offense notice (or they were at least constructively aware due to the State’s open file policy). Rather, the dispositive issue is whether Ruth and his counsel were given adequate notice that these particular convictions would be used to enhance the punishment range in this case. The State’s March 29, 2011 enhancement notice advised Ruth that his 2004 evading arrest conviction would be used for enhancement purposes, but that did not provide notice—either actual or constructive—that the 2001 theft convictions would be so used. The amended enhancement notice, which was provided to Ruth and his counsel only one day prior to the beginning of the punishment phase, was inadequate and unreasonable in light of counsel’s repeated requests for a continuance in order to prepare a defense to the amended enhancement paragraphs. Id. at *16−*17.

The intermediate-appellate court then concluded that “the State did not provide constitutionally adequate notice that it would be using Ruth’s 2001 theft convictions to enhance its punishment.” Id. at *17.

Also see: Throneberry v. State, 109 S.W.3d 52, 59 (Tex. App.―Fort Worth 2003, no pet.).

Potential Problems
It has been held, by a superb appellate justice, that if the State’s “Notice of Intention to Use Evidence of Prior Convictions and Extraneous Offenses,” explicitly states that the attorney for the State “intends” to offer evidence of appellant’s past convictions and extraneous offenses for impeachment purposes and/or to “enhance the range of punishment of the Defendant” then the notice provision has been satisfied. Thompson v. State, 01-06-01085-CR, 2008 Tex. App. LEXIS 5303 (Tex. App.―Houston [1st Dist.] July 17, 2008, pet. ref’d) (mem. op. not designated for publication).

Ruth, however, disagrees and holds that the specific offense used to enhance must be identified.

Object claiming need for more time to investigate the new enhancement and to prepare a defense for it.

This is not legal advice. Consult your own attorney. Or hire me.


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