Brooks v. State

• Decision Date: 25 April 1996
• Docket Number: No. 14-94-00271-CR,14-94-00271-CR
• Citation: 921 S.W.2d 875
• Parties: Michael Joe BROOKS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 875

921 S.W.2d 875

Michael Joe BROOKS, Appellant, v. The STATE of Texas, Appellee.

No. 14-94-00271-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

April 25, 1996.

Terri Tipton Holder, Angleton, for appellant.

David Bosserman, Angleton, for appellee.

Before LEE, HUDSON and EDELMAN, JJ.

OPINION

HUDSON, Justice.

A jury convicted appellant, Michael Joe Brooks, of delivery of a controlled substance. After finding that appellant had been previously convicted of attempted murder, the jury assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for 15 years and a $15,000 fine. Appellant brings two points of error in which he claims the trial court erred (1) in submitting an enhanced punishment charge and (2) in admitting into evidence an audio recording without proper authentication. We affirm the judgment of the trial court.

In his first point of error, appellant contends the court erred by submitting an issue to the jury regarding enhancement of punishment when the indictment contained no such allegation. When the grand jury returned the indictment against appellant, it contained no enhancement paragraph. The State filed a motion for leave to amend the indictment by adding an allegation that appellant had been previously convicted of attempted murder. The State's motion to amend was granted. Both the State's motion and the court's written order amending the indictment recite the new enhancement paragraph in haec verba. At no time, however, was the face of the indictment physically altered to reflect the addition of an enhancement paragraph.

The court of criminal appeals has held that no amendment of an indictment is effective until the face of the charging instrument has been physically altered to reflect the amendment. Ward v. State, 829 S.W.2d 787, 793 (Tex.Crim.App.1992). Neither the motion to amend nor the granting of it constitutes the amendment. Id. Here, we are presented only with the trial judge's order permitting amendment of the indictment. Because no physical alteration was made to the instrument itself, the indictment was not amended.

It is well established that only prior convictions pleaded by the State may be used for enhancement. Moore v. State, 154 Tex.Crim. 307, 227 S.W.2d 219, 221 (1950). Since the indictment contained no enhancement paragraph, we first consider whether enhancement allegations may be pled in some manner other than by inclusion in the indictment.

Pleadings were, at one time, almost entirely oral. The parties simply stood opposite each other and the plaintiff recited his case or tale. ¹ While pleadings are today almost entirely written, ² Texas has rejected the strict formalities identified with common law pleadings. ³ Virtually any writing giving fair notice of some aspect of a claim or defense, signed by counsel, served on the opposing party, and filed with the court, is a pleading. ⁴ The State's motion to amend the indictment was authorized by statute. TEX.CODE CRIM.PROC.ANN. art. 28.10 (Vernon 1989). It was set forth in writing, signed by the attorney representing the State, served on opposing counsel, and filed with the clerk of the trial court. The State's motion to amend the indictment gave appellant fair notice of the State's intent to enhance his punishment with his prior conviction for attempted murder.

An indictment serves at least two distinct purposes. One function of an indictment is to serve as the State's primary pleading. TEX.CODE CRIM.PROC.ANN. art. 27.01 (Vernon 1989). The purpose of a pleading is to put the opposing party on fair notice of claims or defenses that will be proved at the time of trial. Town of Hudson Oaks v. State ex rel. City of Weatherford, 646 S.W.2d 610, 612 (Tex.App.--Fort Worth 1983, writ ref'd n.r.e.). Another function is that an indictment satisfies one of the constitutional prerequisites to a felony prosecution by simply being the "written statement of a grand jury." TEX. CONST. art. I, § 10; TEX.CODE CRIM.PROC.ANN. art. 21.10 (Vernon 1989). Without such a statement, the district court has no jurisdiction to entertain a felony cause of action. Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59, 61-62 (1958).

It is not constitutionally necessary that an enhancement allegation be "the written statement of a grand jury." Because an enhancement paragraph does not form any part of the allegations of criminal wrongdoing, a defendant has no constitutional right to have a grand jury decide whether the allegation is supported by probable cause. Batiste v. State, 785 S.W.2d 432, 436 (Tex.App.--Corpus Christi 1990), pet. ref'd, 830 S.W.2d 951 (Tex.Crim.App.1992). The only purpose of an enhancement paragraph is to provide the accused with notice that the State will attempt to use a specific conviction for enhancement of punishment. Coleman v. State, 577 S.W.2d 486, 488 (Tex.Crim.App.1979). An enhancement allegation, therefore, is merely a pleading. It contains no elements of the offense. It does not convey jurisdiction upon the trial court. Accordingly, it does not have to be pled with the same degree of particularity as the primary offense. Cole v. State, 611 S.W.2d 79, 80 (Tex.Crim.App.1981).

At one time, the State's only pleading was its indictment. TEX.CODE CRIM.PROC. art. 481 (1856) (repealed 1879). Under these circumstances, enhancement allegations had to appear on the face of the indictment. Long v. State, 36 Tex. 6, 10 (1871). With the adoption of the 1879 code, however, the status of an indictment changed from being the State's sole pleading, to merely being its primary pleading. ⁵ This continues to be the condition of indictments under the present code. TEX.CODE CRIM.PROC.ANN. art. 27.01 (Vernon 1989). This change has permitted the State to use for "notice" purposes, pleadings other than its indictment. See Guss v. State, 763 S.W.2d 609, 610-11 (Tex.App.--Amarillo 1989, no pet.) (document served on defense counsel and filed with the court was a sufficient pleading to give notice of the State's intention to seek an affirmative finding of a deadly weapon).

Although the statutory precept that dictated the disposition of Long was altered more than a century ago, the court of criminal appeals has reaffirmed the holding. See Ex parte Patterson, 740 S.W.2d 766, 776 (Tex.Crim.App.1987), modified, Ex parte Beck, 769 S.W.2d 525, 528 (Tex.Crim.App.1989). ⁶ As an intermediate appellate court, we are obliged to follow the holdings of the court of criminal appeals. We need not decide, therefore, whether the State's motion to amend the indictment constitutes a pleading, or whether it provided sufficient notice to satisfy the constitutional guarantees of due process and due course of law. Before they can be used for enhancement of punishment under felony recidivist statutes, prior convictions must be pled in the indictment. Patterson, 740 S.W.2d at 776.

Because enhancement allegations must be posited in the indictment, and the indictment contains no enhancement paragraph, a variance exists between the allegations in the indictment and the trial court's punishment charge. The State contends appellant waived this defect by his failure to object on two critical occasions. To preserve error for appellate review, the complaining party must ordinarily make a timely and specific objection. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.), cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991); Armstrong v. State, 718 S.W.2d 686, 699 (Tex.Crim.App.1985). The State claims appellant should have objected (1) to the State's flawed indictment and (2) to the defective punishment charge.

When a defendant fails to object to a defect, error, or irregularity in the form or substance of an indictment, he may not raise the objection on appeal. TEX.CODE CRIM.PROC.ANN. art. 1.14(b) (Vernon Supp.1996). Because appellant did not object to the putative amendment, the State claims appellant is now barred from complaining about a charge predicated upon the "amended" indictment. However, where the indictment contains no enhancement paragraph, appellant has no duty to object to its absence. The absence of an enhancement paragraph is not a "defect, error, or irregularity." Luken v. State, 780 S.W.2d 264, 268 (Tex.Crim.App.1989). The court of criminal appeals has held that in an accusatory system of criminal justice, an appellate court cannot require that the accused complain he faces too lenient a range of punishment. Id. Appellant did not waive his complaint concerning the court's charge by failing to object to the want of an enhancement paragraph in the State's indictment.

The State also claims appellant waived any complaint regarding the variance when he failed to object to inclusion of the enhancement issue in the punishment charge. Error in the court's charge may be raised for the first time on appeal. However, defects in the charge will not constitute reversible error unless they result in "egregious harm" to the accused. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). The test for determining the existence of "egregious harm" is whether the accused was denied "a fair and impartial trial." Id., at 172.

It is undisputed that appellant had a prior felony conviction. Appellant testified that he was convicted of attempted murder in 1985 and sentenced to 20 years in the penitentiary. As a second offender, appellant was subject to the possibility of enhanced punishment. Months before his trial, the State gave appellant notice it would seek enhanced punishment based on his prior conviction for attempted murder. The issue was joined at the beginning of the punishment hearing when the State's attorney read the "remainder" of the "amended" indictment to the jury without objection. Appellant confessed in the jury's presence that the allegation was true, but after receiving further admonitions from the trial court, changed his plea to "not true." Appellant made no objection...