PELACHE v. The State of Tex.

• Decision Date: 03 November 2010
• Docket Number: No. PD-1277-09.,PD-1277-09.
• Citation: 324 S.W.3d 568
• Parties: Eric Simon PELACHE, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

324 S.W.3d 568

Eric Simon PELACHE, Appellant,

v.The STATE of Texas.

No. PD-1277-09.

Court of Criminal Appeals of Texas.

Nov. 3, 2010.

Dale Robertson, Brownsville, for Appellant.

Lane Haygood, Asst. Dist. Atty., Brownsville, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

In this case, the court of appeals decided that the State's April 23, 2008 post-guilt, pre-punishment-phase notice to appellant of the State's intent to enhance appellant's punishment with an aggravated-robbery conviction violated appellant's federal constitutional due-process rights “to know the nature of the charges he is accused of and the consequences of a conviction before jeopardy attaches.” ¹ We decide that appellant's federal constitutional due-process rights were not violated.

Appellant was charged in an indictment with the second-degree felony offense of robbery. ² The indictment contained an enhancement “count” alleging that appellant had previously been convicted of an aggravated robbery on September 7, 2000. ³ This made appellant, if convicted of the robbery offense, subject to a first-degree-felony punishment range ⁴ of five to 99 years or life with a possible fine not to exceed $10,000. ⁵ Appellant rejected the State's plea-bargain offer to plead guilty to a reduced state-jail felony charge of theft from a person ⁶ in exchange for a recommended sentence of two-years' confinement in a state jail. ⁷

On April 15, 2008, appellant went to trial on the robbery indictment. A convenience-store clerk identified appellant as the person who came into the convenience store where she was working and demanded the money that was in the cash register. The clerk testified that appellant had one hand in his pocket which made her think that appellant had a weapon causing her to fear for her life. On April 18, 2008, a jury convicted appellant of the lesser-included, state-jail felony offense of theft from a person. Appellant's punishment hearing was set for May 2, 2008, when the trial court would assess appellant's punishment. ⁸

On April 23, 2008, the State, in the form of a motion for enhancement and request for leave of court to amend the indictment, notified appellant of its intent to use two more prior felony convictions for enhancement purposes, both also occurring on September 5, 2000 (another aggravated-robbery conviction and a state-jail felony conviction for possession of a controlled substance). ⁹ This motion cited to “ TEX. PENAL CODE 12.42 and 12.35,” and it requested that appellant's “punishment be increased to reflect the enhancements.”

On May 9, 2008, the trial court conducted a punishment hearing. At this hearing, the parties discussed whether appellant's prior convictions could be used to enhance appellant's sentence to a second-degree felony range. We find it necessary to set out these discussions in some detail. Just before the punishment hearing began, the following proceedings took place.

[THE STATE]: Further, I'd ask the Court to take judicial notice of the state's motion to enhance punishment that was filed back on April 23rd of 2008. That was also given to [the defense], served on [the defense]. In regards to that state's motion for enhancement, we are alleging three different priors, more specifically, in Cause No. 00-CR-528-D. ¹⁰ The defendant was convicted of the offense of aggravated robbery back on September the 5th of 2000.

[THE COURT]: And that was in the enhancement paragraph.

[THE STATE]: And that also was in the enhancement paragraph in the actual indictment, but we also gave them notice again in regards to-we filed another motion for enhancement.

In addition to that motion for enhancement, we also allege another count where [appellant] was also convicted for the offense of aggravated robbery, which is a(3)(g) offense in 00-CR-522-D. That conviction also occurred back on or about September the 5th of 2007 [sic].

In addition to that, we are alleging that in 95-CR-1523-D, the same defendant was also convicted for the offense of possession of controlled substance back on September the 5th of 2007-or 2000. I'm sorry, Judge.

Now, in regards to that, Judge, basically, I do have some case law. What I believe is applicable would be Sec. 12.35 of the Penal Code, specifically subsection (c). Basically what happens in regards to-we have a state-jail conviction with the pending aggravated robbery, one of the aggravated robberies. That would then enhance it to a third-degree felony, using that logic in 12.35(c). ¹¹

And how we get there, Judge, is basically, the prior offense, the aggravated robbery is a(3)(g) offense. That (3)(g) offense, once it's proven, will then enhance [appellant] to a third degree.

In regards to that, there's also-I would believe that 12.42 is also applicable under subsection (a)(3). At this point in time, once you enhance them once with the aggravated robbery, you enhance them again with the second aggravated robbery. Because you have an aggravated state-jail felony, which I have case law that talks about that,-at that point in time you would be looking at a second-degree felony. ¹²

Appellant seemed to take the position that none of his prior convictions (including the September 5, 2000 aggravated-robbery conviction alleged in the enhancement “count” of the indictment) could be used for enhancement purposes and that he should be subject to a state-jail-felony punishment range because the State did not provide him with notice that it would seek to enhance his sentence if he was convicted of a lesser-included, state-jail felony offense of theft from a person. Appellant seemed to claim that the enhancement “count” in the indictment put him on notice that the State intended to enhance his sentence only under § 12.42 which, according to appellant, became inapplicable when the jury convicted him of the state-jail felony offense of theft from a person. Appellant then claimed, in the alternative, that a more appropriate sentence would be within a third-degree felony range apparently under state law.

[THE DEFENSE]: Now, my argument is that no notice was provided with regards to enhancing [appellant's] state-jail felony from a non-aggravated state-jail felony to an aggravated state-jail felony.

And if the Court will note, their continuous argument is, they call it an enhancement. They provide me a notice of enhancement enhancing his state-jail felony, the theft from a person, to an aggravated state-jail felony, making note of the enhancement. Well, in a state-jail felony, the only way that you can enhance is under Art. 12.42, and that is not applicable in this case.

It's my position that he is not subject to having his state-jail felony enhanced from a non-aggravated to an aggravated because the notice that has been provided by the state had been in the form of an enhancement, and that notice was done pursuant to 12.42, which is not applicable. And it's our position that the only offense and range of punishment that you can consider in this case is basically a state-jail felony, between six to two months-between six months and two years.

In the alternative, if the Court should not agree with us, not that I'm agreeing, but the one that would fit more than what the state is arguing, that it's a second, would be a third-degree, not a second-degree felony. We would object to that.

(Emphasis supplied).

The State responded that appellant had sufficient notice of its enhancement allegations because case law “says you just have to give it to them prior to punishment, which it has been in this case.” ¹³

[THE STATE]: If I could just have a chance to rebut that argument. In regards to notice, Judge, on the face of the indictment there was an enhancement count in regards to 00-CR-523-D, the aggravated robbery. In addition, notice was given again on state's motion to enhance punishment that was filed back on April 23rd of 2008, that alleged not only just that enhancement count, but the additional enhancement-the two other additional enhancement counts, again, in 00-CR-522-D and 95-CR-1523-D.

In regards to that, [the defense] says that there is no notice that, basically, we're filing under 12.42, but here, Judge, if I may approach, it's under 12.45 [sic] and 12.42, which is clearly marked in the motion. But there is no bright-line rule, Judge, in regards to giving [the defense] notice in regards to a motion to enhance punishment. I have case law that has said that you just have to give it prior to punishment. Here, that's April 23rd, which is prior to punishment. Therefore, he's been served with a copy. I can give you the case law. There's no-again, no bright-line rule. There's actually case law that rejects a ten-day rule, and it says you just have to give it to them prior to punishment, which it has been in this case. I think [the defense] acknowledges that.

After clarifying the State's statutory theory for enhancing appellant's sentence to a second-degree felony range ( see footnote 12), the trial court indicated that it would make a ruling after the State presented its punishment evidence and after it reviewed case law provided by the State. Immediately after this, more discussion occurred on whether appellant's sentence could be enhanced to a second-degree felony range under the applicable state statutes.

[THE DEFENSE]: If I might just add on that exact point, Judge, if Your Honor will examine 12.42, there are certain points in 12.42 where a sequential-

[THE COURT]: Is required.

[THE DEFENSE]:-is required, but in this particular subsection, it's not required. ¹⁴ So I would just also point that out.

[THE COURT]: Well, it doesn't really clarify it. That's why I'm asking if the case law does, because it just says “If it is shown on the trial of a state-jail felony punishable under Sec. 12.35(c) ... that the defendant has...