Sears v. State

• Decision Date: 20 November 2002
• Docket Number: No. 09-01-505 CR.,09-01-505 CR.
• Citation: 91 S.W.3d 451
• Parties: Rick Wayne SEARS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

91 S.W.3d 451

Rick Wayne SEARS, Appellant, v. The STATE of Texas, Appellee.

No. 09-01-505 CR.

Court of Appeals of Texas, Beaumont.

Submitted Aug. 21, 2002.

Decided November 20, 2002.

John D. MacDonald II, Conroe, for appellant.

Michael A. McDougall, District Attorney, Gail Kikawa McConnell, Assistant District Attorney, Conroe, for State.

Before WALKER, C.J., BURGESS, and GAULTNEY, JJ.

OPINION

DON BURGESS, Justice.

A jury convicted Rick Wayne Sears of aggravated sexual assault of a child and, upon finding the State's enhancement allegation "true," sentenced Sears to confinement for life in the Texas Department of Criminal Justice, Institutional Division. Sears appeals raising three issues.

Issue one contends the evidence adduced during the punishment phase of the trial was legally insufficient to sustain the jury's finding of "true" to the State's enhancement allegation. Defense counsel objected to the judgment entered by the State purporting to establish Sears' 1982 conviction on the grounds:

• it did not recite whether or not the defendant knowingly and intelligently and voluntarily waived the right to trial by jury; [the judgment reflects a plea of "guilty"]

• there was no thumb print of the defendant on the judgment;

• the judgment was not signed by the defendant;

• the degree of the offense was not listed on the judgment; and

• the attorney that represented the defendant at the time was the same attorney that fell asleep during a capital trial.

The judgment does recite that the defendant waived his right of trial by jury, was admonished by the Court of the consequences of his plea, and that it plainly appeared to the Court that the plea was free and voluntary. Article 42.01 of the Texas Code of Criminal Procedure in effect at the time judgment was entered did not require the defendant's thumbprint, the defendant's signature, or the degree of the offense to be stated in the judgment. See Act of May 31, 1981, 67th R.S., ch. 291, § 111, 1981 Tex. Gen. Laws 809. But see TEX.CODE GRIM. PROC. ANN. art. 42.01, § 1(14), (23) (Vernon Supp.2002). On appeal, no argument is made regarding the quality of counsel in 1982.

Furthermore, during punishment, the State offered Exhibit Number 1, a pen Packet purporting to be evidence of Sears' 1982 conviction, and Exhibit Number 2, a card of Sears' recently obtained fingerprints. Jimmy Chilcutt, latent fingerprint examiner for the Conroe Police Department, testified for the State. Chilcutt testified he took a print of Sears' right index finger twenty minutes ago and it matched the right index finger of the ten-print card from the pen packet. Chilcutt then answered, "Yes" when asked if it was his opinion that the Mr. Rick Wayne Sears he just took the fingerprints from matched the fingerprints in State's Exhibit Number 1. Exhibit Number 2 is, in fact, a card with prints purporting to be from the index and middle fingers of Sears' left hand. Defense counsel moved the exhibits not be admitted into evidence and for a directed verdict on the basis that Chilcutt testified he took the fingerprints from the right hand but Exhibit Number 2 was of the left hand. The State countered, "they have already been admitted. He might have put it on the left hand. He said they were the right fingerprints. We will stop him and bring him back in. Both exhibits have already been admitted into evidence." The trial court then overruled defense counsel's objection.

Although it would have been preferable for the State to clear up any confusion resulting from the fact that the card appears to contradict Chilcutt's testimony, Chilcutt did testify that he took Sears' right index fingerprint and it matched the right index fingerprint on the card in the pen packet. Accordingly, we cannot say the evidence is legally insufficient to support the jury's finding of "true." Issue one is overruled.

In his second issue, Sears claims the trial court violated his due process right to notice under the Sixth and Fourteenth Amendments of the United States Constitution when it allowed the State to present enhancement evidence over Sears' objection that he had received inadequate notice of the State's intent to offer the evidence. We agree.

The State filed a Notice of Intent to Prove Witness's Convictions Pursuant to Texas Rule of Criminal Evidence 609 on September 28, 2001, notifying Sears of its intent to introduce evidence of his August 6, 1982, conviction for aggravated sexual abuse of a child. Subsequently, on Friday, October 5, 2001, the State filed a Notice of Enhancement Allegations to be Submitted to Fact Finder at Punishment, notifying Sears of its intent to enhance the punishment range in this cause with his August 6, 1982, conviction. Trial began the following Monday. Prior to trial, defense counsel objected to the State seeking to enhance the punishment range, noting the indictment failed to include an enhancement paragraph. The State argued that under Brooks v. State, 957 S.W.2d 30 (Tex. Crim.App.1997), it was not necessary to put it in the indictment and the defense was given notice Friday. The State also asserted it had been "discussed" and the pen pack was in the State's file. Defense counsel countered the notice was not timely and questioned whether the "Notice" constituted a "pleading" within the meaning of Brooks. The State claimed the Defense was not surprised and that the notice sufficed under Brooks.

The trial court concluded the Rule 609(f) notice was not a pleading but found the October 5th notice of enhancement allegations was, and overruled the defense's motion. Defense counsel then requested a continuance "based on the new pleading that has been presented as of last Friday." The State strenuously objected and contended the defense "should be prepared. They have seen the file." The trial court then denied the motion for continuance. The trial court did note, lilt does concern me that it wasn't even in the file until the 5th on Friday and set for trial on Monday, but it is pleadings and the Brooks matter seems to say that's all that has to be there...." Defense counsel pointed out that in Brooks, the court found error was waived by failing to object.

We first note that the sole issue decided in Brooks was whether the enhancement paragraphs must be pleaded in the indictment; the Court of Criminal Appeals held they do not. Brooks, 957 S.W.2d at 34. Brooks did not decide, and it was not an issue, whether the notice was timely. In Brooks, the defendant was notified "months before trial" that the State intended to seek an enhanced punishment range. Brooks v. State, 921 S.W.2d 875, 879 (Tex.App.-Houston [14th Dist.] 1996). It is important to recognize that in this case Sears pleaded "not true" to the enhancement allegation, unlike Brooks; Sears was not notified months before trial the State sought to enhance his sentence, unlike Brooks; and Sears' defense counsel did complain the enhancement allegation surprised him and that he was unprepared to contest the allegation, unlike Brooks. Id. Therefore, while the State was correct in arguing to the trial court that Brooks did not require the allegation to be in the indictment, that is the sole extent to which Brooks applied to the case at bar. Brooks, 957 S.W.2d at 34.

We reject the State's position that anything other than the notice filed October 5th could satisfy the requirement that "prior convictions used as enhancements must be pled in some form." Id. at 34. "The Court has always held that enhancement allegations must be set forth in writing." Chimney v. State, 6 S.W.3d 681, 696 (Tex.App.-Waco 1999, pet. filed) (citing Brooks, 957 S.W.2d at 34; and Farris v. State, 155 Tex.Crim. 261, 263-64, 233 S.W.2d 856, 858 (1950)). The accused has a right to be advised that a greater penalty is to be sought. See Hollins v. State, 571 S.W.2d 873, 876 (Tex.Crim.App.1978). Sears was not so advised until October 5th. The State's notice that if Sears testified he would be impeached with the prior conviction in no way informed him that he was facing a mandatory life sentence if convicted. Neither did the fact that the State's file contained the pen pack cure the infirmity. Were we to accept the State's position that it was somehow defense counsel's duty to anticipate the State would seek enhancement, the notice requirement would be useless. Accordingly, the issue we must determine is whether notice given sometime on Friday before trial begins on Monday satisfies a defendant's right to notice.

As Brooks notes "[t]he theme through all of these cases appears to be that a defendant is entitled to notice of prior convictions to be used for enhancement." Brooks, 957 S.W.2d at 33 (emphasis added). An accused is entitled to proper notice of any prior conviction alleged for enhancement of punishment. See Hollins, 571 S.W.2d at 875 (emphasis added). Proper notice constitutes "`a description of the judgment of former conviction that will enable [the accused] to find the record and make preparation for a trial of the question whether he is the convict named therein.'" Id. at 875 (quoting Morman v. State, 127 Tex.Crim. 264, 75 S.W.2d 886 (1934)). Sears was given less than one full business day, and two weekend days, to make such preparations.

We do not determine a certain time frame but mark that ten days' notice is considered sufficient in a number of instances. Appointed counsel is allowed ten days to prepare. See TEX.CODE CRIM. PROC ANN. art. 1.051(e) (Vernon Supp.2002). Upon request, a defendant is given ten days to respond to an amended indictment or information. See TEX.CODE CRIM. PROC ANN. art. 28.10(a) (Vernon 1989). Absent a waiver, a probationer is entitled to be served with a motion to revoke at least ten days before the hearing. See Campbell v. State, 456 S.W.2d 918, 920 n. 3 (Tex.Crim. App.1970). Notice is presumptively "reasonable" if given at least ten days before trial. See Chimney, 6 S.W.3d at 694.

For the reasons stated above, we find,...