                                                            PD-0842-15 & PD-0843-15
                                                        COURT OF CRIMINAL APPEALS
                                            Oral   argument  requested   AUSTIN, TEXAS
                                                        Transmitted 7/27/2015 8:44:42 AM
                                                          Accepted 7/28/2015 2:33:45 PM
                                                                          ABEL ACOSTA
                    PD-0842-15 & PD-0843-15                                       CLERK

       IN THE TEXAS COURT OF CRIMINAL APPEALS
   _________________________________________________

               GEORGE CONTRERAS
                          APPELLANT

                              vs.

               THE STATE OF TEXAS
                       APPELLEE
   _________________________________________________

            FROM THE FIFTH COURT OF APPEALS
           Cause Nos. 05-13-00752-CR & -53-CR

    APPEAL FROM THE 282ND DISTRICT COURT OF DALLAS
     COUNTY, TEXAS, CAUSE NOS. F-1231118-S & -19-S
   _________________________________________________

         APPELLANT’S PETITION FOR
          DISCRETIONARY REVIEW
   _________________________________________________

BRUCE ANTON                         SORRELS, UDASHEN & ANTON
State Bar No. 01274700              2311 Cedar Springs, Suite 250
ba@sualaw.com                       Dallas, Texas 75201
                                    214-468-8100 (office)
BRETT ORDIWAY                       214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com                 Counsel for Appellant




    July 28, 2015
             Ground for Review

In determining whether the timing of the State’s
notice of an enhancement allegation impaired the
ability to present a defense, should a court of
appeals (1) consider whether defense counsel
asked for more time, as this Court instructed in
Villescas; or (2) just make its own evaluation as
to how much time was needed?




                       2
                                             Table of Contents

Ground for Review ................................................................................................ 2!

Index of Authorities ............................................................................................. 4!

Identity of Parties and Counsel ......................................................................... 5!

Statement Regarding Oral Argument ............................................................. 6!

Statement of the Case and Procedural History ............................................. 7!

Argument ................................................................................................................ 9!

   In determining whether the timing of the State’s notice of an
   enhancement allegation impaired the ability to present a defense, a
   court of appeals should consider whether defense counsel asked for
   more time, as this Court instructed in Villescas—not just make its
   own evaluation as to how much time was needed. ................................... 9!

Prayer .................................................................................................................... 17!

Certificate of Service .......................................................................................... 19!

Certificate of Compliance .................................................................................. 19!

Appendix ............................................................................................................... 20!




                                                              3
                                      Index of Authorities

Cases
Arredondo v. State, No. 05-08-00477-CR, 2009 WL 901980, *1 (Tex.
  App.—Dallas 2009, no pet.) .................................................................. 14
Callison v. State, 218 S.W.3d 822, 825–26 (Tex. App.—Beaumont 2007,
  no pet.) ................................................................................................... 14
Contreras v. State, No. 05-13-00752-CR, 2015 WL 3554086 (Tex. App.—
  Dallas 2015) ................................................................................. 8, 11, 12
Davis v. Ayala, 135 S. Ct. 2187, 2201 (2015) ........................................... 16
Hernandez v. New York, 500 U.S. 352, 365 (1991) .................................. 16
Kennedy v. State, No. 12-08-00246-CR, 2009 WL 4829989, *2 (Tex.
  App.—Tyler 2009) ................................................................................. 15
Ketchum v. State, 199 S.W.3d 581, 593 (Tex. App.—Corpus Christi
  2006, pet. ref’d) ...................................................................................... 13
Majors v. State, No. 07-07-0259-CR, 2008 WL 5401593, *7 (Tex. App.—
  Amarillo 2008, pet. ref’d) ...................................................................... 13
Morgan v. State, No. 12-06-00226-CR, 2009 WL 2767300, *5 (Tex.
  App.—Tyler 2009, pet. ref’d, untimely filed)........................................ 14
Pelache v. State, 324 S.W.3d 568 (Tex. Crim. App. 2010) ....................... 12
Ruth v. State, No. 13-11-00385-CR, 2012 WL 3755607, *5 (Tex. App.—
  Corpus Christi 2012, pet. ref’d) ............................................................ 13
State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) .................... 15
Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006) ............... 11, 12
Wainwright v. Witt, 469 U.S. 412, 428 (1985) ......................................... 16
Statutes
TEX. HEALTH & SAFETY CODE § 481.112 ............................................... 7, 12
TEX. HEALTH & SAFETY CODE § 481.121 ..................................................... 7
Rules
TEX. R. APP. P. 21.8 ..................................................................................... 8




                                                       4
                  Identity of Parties and Counsel

For Appellant George Contreras:

     EDWARD P. SHOEMAKER
          Trial counsel of record
     LAW OFFICE OF EDWARD P. SHOEMAKER
     705 Ross Avenue
     Dallas, Texas 75202

     BRUCE ANTON
     BRETT ORDIWAY
          Appellate counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs, Suite 250
     Dallas, Texas 75201

For Appellee the State of Texas:

     ANDREW NOVAK
          Trial counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
     133 North Riverfront Boulevard
     Dallas, Texas 75207

     GRACE E. SHIN
         Appellate counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

Trial Court:

     THE 282ND DISTRICT COURT OF DALLAS COUNTY
     THE HONORABLE ANDY CHATHAM PRESIDING



                                   5
               Statement Regarding Oral Argument

     The Dallas Court of Appeals in this case ignored this Court’s

precedent and created a new test for evaluating whether the State’s

notice of an enhancement allegation gave the defense sufficient time to

prepare a defense. Contreras believes oral argument would be useful to

this Court’s understanding as to how.




                                   6
           Statement of the Case and Procedural History

      Following a month-long investigation in which the police made

controlled purchases of methamphetamine at a Grand Prairie residence,

officers obtained a search warrant for the property. (RR4: 63-71).

Immediately before it was to be executed, however, Contreras left the

home in a vehicle driven by another individual. (RR5: 137). The officers

stopped them, and found a methamphetamine pipe and cash on

Contreras’s person. (RR5: 146). At the home, officers discovered

methamphetamine, marijuana, weapons, and drug ledgers attributable

to Contreras. (RR4: 80, 81, 138-141, 145,170; RR5: 97).

      Contreras was indicted for possessing, while intending to deliver,

methamphetamine in an amount over four grams but less than 200

grams, and possessing marijuana in an amount over four ounces but

less than five pounds. See TEX. HEALTH & SAFETY CODE § 481.112(d);

TEX. HEALTH & SAFETY CODE § 481.121(b)(3); (CR1: 8; CR2: 8). 1 The

indictments further alleged Contreras possessed the substances within

1,000 feet of property leased to a school or school board, and that

1“CR1” refers to the methamphetamine charge, F-1231118. “CR2” refers to the
marijuana charge, F-1231119.
                                       7
Contreras used or exhibited a firearm during the commission of the

offenses. (CR1: 8; CR2: 8). Ten days before trial, however, the State

revised its allegation to instead contend Contreras was within 1,000

feet of a playground. (CR1: 56; CR2: 54). After Contreras unsuccessfully

objected that he did not have sufficient notice of the amended

allegation, he pleaded not guilty and not true and a jury trial was held

from May 14, 2013, through May 22, 2013. (RR1: 3-6; RR2: 30-36; RR4:

52-53). The jury ultimately found Contreras guilty, and that the

offenses were committed in a drug-free zone, and assessed punishment

at fourteen years’ imprisonment for the methamphetamine charge and

four years’ imprisonment for the marijuana charge. (RR9: 129-131).

     Contreras filed a notice of appeal and a motion for new trial on

May 23, 2013, the latter of which was overruled by operation of law.

(CR1: 100-101; CR2: 96-97); see TEX. R. APP. P. 21.8. The Dallas Court of

Appeals overruled Contreras’s appeal and affirmed his conviction in an

opinion released on June 8, 2015. Contreras v. State, No. 05-13-00752-

CR, 2015 WL 3554086 (Tex. App.—Dallas 2015). No motion for

rehearing was filed.

                                   8
                               Argument

           In determining whether the timing of the State’s
           notice of an enhancement allegation impaired the
           ability to present a defense, a court of appeals
           should consider whether defense counsel asked
           for more time, as this Court instructed in
           Villescas—not just make its own evaluation as to
           how much time was needed.

                                     I

     A mere ten days before trial, the State revised the enhancement

allegation in the indictment to contend Contreras was within 1,000 feet

of a playground, not a school. (CR1: 56; CR2: 54). The State only

attempted to alert Contreras’s trial counsel six days prior to trial,

though, and the e-mail by which the State attempted to notify

Contreras’s counsel of the change did not contain the intended

attachment. (RR2: 31). The State did not provide actual notice until jury

selection was set to begin. (RR2: 30).

     The trial court agreed to quash the original jury panel and give

Contreras’s counsel the afternoon to “scout that out.” (RR2: 32). But

counsel objected that, even accounting for that accommodation, he had

not received sufficient notice. (RR2: 35-36). He explained that he had

                                     9
spent significant time preparing to dispute the allegation as to the

original location, and that he was not prepared to do the same for the

playground. (RR2: 35-36). The court nonetheless told him it was

“inclined” to overrule his objection, and Contreras’s trial proceeded the

following day. (RR1: 3-6; RR2: 30-36; RR4: 52-53).

       Before the State rested, Contreras’s counsel again urged that he

had received insufficient notice of the enhancement allegation, asking it

to be excluded, but the court again overruled the objection. (RR6: 43-

44). The jury then found Contreras guilty of both counts and, after later

finding the special issues to be true, assessed punishment at fourteen

years’ imprisonment for the methamphetamine charge and four years’

imprisonment for the marijuana charge. (RR9: 129-131); (CR1: 91; CR2:

83).

       On appeal to the Fifth Court of Appeals, Contreras argued that

the trial court erred in finding that the State provided sufficient notice

that it intended to enhance Contreras’s punishment. (Ap. Br. at 9-14).

Contreras’s trial counsel repeatedly objected that, because of the late

notice, he was unprepared to defend the allegation. (Ap. Br. at 12). And

                                   10
this Court, in Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006),

held that notice satisfies due process requirements when a defendant

has no defense to a sentence enhancement allegation and has not

suggested the need for a continuance in order to prepare one.

         The court of appeals nonetheless rejected Contreras’s appeal and

affirmed his conviction. Contreras v. State, No. 05-13-00752-CR, 2015

WL 3554086, *2 (Tex. App.—Dallas 2015). And for just one reason. The

court determined that, in light of the timing of the notification, “[e]ven

if Contreras had a defense to the drug-free zone allegation, he had

sufficient time to develop that defense.” Id.

                                            II

         The court of appeals resolved the issue, then, by making its own

determination as to whether counsel needed more time than he was

given.2 Unsurprisingly, the court cited to absolutely nothing in support.


2   In full, the court’s analysis was:

         Contreras’s counsel was notified six days prior to the beginning of trial
         that the State intended to seek a punishment enhancement based on
         distance of the offenses to a playground. Additionally, the trial court
         quashed the original jury panel and recessed for the purpose of
         allowing Contreras’s counsel to visit the location of the playground,
         which he did. Voir dire did not begin again until May 15, 2013. Finally,
                                            11
Not a single case or statute. See id. For, this Court, and the courts of

appeals, have consistently held that reviewing courts are to consider

whether counsel says he needs more time, not make the determination

independently.

      This Court’s seminal modern opinion on the issues is Villescas.

189 S.W.3d 290. In that case, this Court determined that notice was a

due process issue and, therefore, of a constitutional nature. Id. at 294.

This Court then decided that notice given prior to the beginning of the

punishment phase satisfies the federal constitutional due process

requirement “when a defendant has no defense to the enhancement

allegation and has not requested a continuance.” Id. (emphasis added).

      This Court then re-affirmed as much four years later, in Pelache v.

State, 324 S.W.3d 568 (Tex. Crim. App. 2010). There, this Court utilized

the Villescas test in evaluating whether notice was sufficient,

      Contreras’s counsel did not rest his case until May 20, 2013, nearly two
      weeks after he originally was notified of the Notices and one week after
      he received paper copies of the Notices. Contreras’s counsel had
      sufficient time to investigate whether the playground was within 1,000
      feet of the site of the offense and to develop a defense to the drug-free
      zone allegations.

Contreras, 2015 WL 3554086 at *2.

                                         12
remarking: “In fact, we have held that ‘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 577.

     The courts of appeals have not hesitated to follow suit. In Ruth v.

State, No. 13-11-00385-CR, 2012 WL 3755607, *5 (Tex. App.—Corpus

Christi 2012, pet. ref’d), the court held that the amended enhancement

notice “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.” And in scores of other cases, the courts have

affirmed convictions precisely because counsel did not protest. See, e.g.,

Ketchum v. State, 199 S.W.3d 581, 593 (Tex. App.—Corpus Christi

2006, pet. ref’d) (“Even assuming he preserved error, Ketchum did not

state that a continuance was necessary to discover or prepare a defense

and, accordingly, he received the notice minimally required to satisfy

due process.”); Majors v. State, No. 07-07-0259-CR, 2008 WL 5401593,

*7 (Tex. App.—Amarillo 2008, pet. ref’d) (“…it appears to this court that

appellant’s position is exactly the same as that described in Villescas.

                                    13
Appellant did not request a continuance and had no defense to the

second enhancement paragraph. Therefore, the notice given appellant

before the beginning of the punishment hearing was sufficient.”);

Callison v. State, 218 S.W.3d 822, 825–26 (Tex. App.—Beaumont 2007,

no pet.) (defendant was not denied right to adequate notice when he

failed to request additional time to prepare his defense after receiving

notice of the State’s intent to enhance his punishment); Arredondo v.

State, No. 05-08-00477-CR, 2009 WL 901980, *1 (Tex. App.—Dallas

2009, no pet.) (“In these cases, appellant asserted no defense to the

enhancement allegation and pleaded true to the prior conviction alleged

in the enhancement paragraph. He did not move for a continuance or

suggest a continuance was necessary to discover or prepare a defense.

Under these facts and circumstances, we conclude constitutionally

adequate notice was given by the State when, three days before trial, it

filed notice of its intent to enhance appellant’s punishment in each case

with a prior felony conviction.”); Morgan v. State, No. 12-06-00226-CR,

2009 WL 2767300, *5 (Tex. App.—Tyler 2009, pet. ref’d, untimely filed)

(“Here, Appellant did not request a continuance and pleaded true to the

                                   14
enhancement allegations contained in the Brooks notice. Therefore, the

timing of the notice was acceptable.”); Kennedy v. State, No. 12-08-

00246-CR, 2009 WL 4829989, *2 (Tex. App.—Tyler 2009) (“Appellant

did not request a continuance or additional time to prepare and has not

shown that he was prejudiced by the amount of notice he did receive.

Accordingly, and while not endorsing the method of providing notice the

State used in this case, we hold that Appellant received sufficient notice

prior to trial of the enhancements the State would seek.”).

     Tying the inquiry to counsel’s attestation makes sense. For, under

the alternative standard employed by the Dallas Court of Appeals in

this case, where courts of appeals make their own determinations

notwithstanding counsel’s input, the courts are implicitly evaluating

the credibility of defense counsel. And appellate courts are poorly

positioned to do so. See, e.g., State v. Moff, 154 S.W.3d 599, 601 (Tex.

Crim. App. 2004) (“When the resolution of a question of law does not

turn on an evaluation of the credibility and demeanor of a witness, then

the trial court is not in a better position to make the determination, so

appellate courts should conduct a de novo review of the issue.”).

                                   15
Credibility judgments lie “‘peculiarly within a trial judge’s province.’”

Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion)

(quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). Just as

“Appellate judges cannot on the basis of a cold record easily second-

guess a trial judge’s decision about [an attorney’s] motivation” in

striking a juror, neither can an appellate court confidently determine

whether an attorney is lying about needing a continuance to to recently

added enhancement allegations. Davis v. Ayala, 135 S. Ct. 2187, 2201

(2015).

     The Dallas Court of Appeals in this case, then—in ignoring

counsel’s protestations otherwise and affirming Contreras’s conviction

because, in the court’s opinion, counsel had time to develop a defense—

based its decision on an entirely inappropriate analysis. As this Court

has held, repeatedly, and the other courts of appeals have had no

difficulty following, notice of enhancement allegations satisfies the

federal constitution when a defendant has no defense to the

enhancement allegation and has not suggested the need for a

continuance in order to prepare one.

                                   16
     On this basis, alone, then, this Court should grant this petition so

that it may reverse the court of appeals’s decision and remand this case

to that court with instructions to conduct the proper analysis. But

because the record so plainly shows that counsel did request additional

time to prepare a defense, in the interests of judicial economy this Court

should simply grant this petition so that it may reverse the judgment of

the court of appeals and remand this case to that court to consider

whether Contreras was harmed by the trial court’s error.

                                 Prayer

     Accordingly, Contreras respectfully requests this Court to grant

this petition so that it may reverse the court of appeals’s judgment and

remand this case to that court to conduct a harm analysis.

                                  Respectfully submitted,




                                       /s/ Bruce Anton
                                  BRUCE ANTON
                                  Bar Card No. 01274700
                                  ba@sualaw.com



                                   17
     /s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com

SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Attorneys for Appellant




 18
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellant’s Petition for Discretionary Review was
electronically served to the Dallas County District Attorney’s Office and
State Prosecuting Attorney on July 27, 2015.


                                       /s/ Bruce Anton
                                  Bruce Anton




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1.! the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
      this brief contains 1,861 words, excluding the parts of the brief
      exempted by TEX. R. APP. P. 9.4(i)(1).

  2.! the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
      style requirements of TEX. R. APP. P. 9.4(e) because this brief has
      been prepared in a proportionally spaced typeface using Microsoft
      Word 2011 in 14-point Century Schoolbook.


                                       /s/ Bruce Anton
                                  Bruce Anton




                                   19
Appendix




   20
Affirmed as Modified; Opinion Filed June 8, 2015.




                                                                  In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
                                                       No. 05-13-00752-CR
                                                       No. 05-13-00753-CR

                                           GEORGE CONTRERAS, Appellant
                                                       V.
                                           THE STATE OF TEXAS, Appellee

                                On Appeal from the 282nd Judicial District Court
                                             Dallas County, Texas
                               Trial Court Cause Nos. F-1231118-S & F-1231119-S

                                          MEMORANDUM OPINION
                                   Before Justices Fillmore, Stoddart, and Whitehill1
                                              Opinion by Justice Stoddart
           A jury convicted George Contreras of possession with an intent to deliver

methamphetamine and possession of marijuana and found the offenses were committed in a

drug-free zone. The jury assessed punishment of fourteen years’ confinement and a $10,000 fine

for the methamphetamine offense, cause number 05-13-00752-CR, and four years’ confinement

and a $10,000 fine for the marijuana offense, cause number 05-13-00753-CR. In a single issue,

Contreras argues the State failed to timely notify him of amended punishment enhancement

allegations. In a single cross-issue, the State argues the judgment should be reformed to reflect

the fine orally pronounced by the trial court in cause number 05-13-00753-CR. We affirm the

     1
       Justice Bill Whitehill succeeded Justice Kerry FitzGerald, retired. Justice Whitehill has read the briefs and reviewed the record and now
serves as a member of the panel.
trial court’s judgment in cause number 05-13-00752-CR. We modify the trial court’s judgment

in cause number 05-13-00753-CR, and affirm as modified.

          Contreras was indicted for possession of methamphetamine with an intent to deliver and

possession of marijuana. Both indictments alleged the offenses were committed “in, on, or

within 1,000 feet of any real property that is owned, rented or leased to a school or school

board.” Before trial, the State filed a Notice of Intent to Seek Finding of Offense Committed in

Drug-Free Zone in each cause number (Notice). Each Notice reflected the State’s intention to

offer evidence “that the offense charged in the indictment was committed in, on, or within 1,000

feet of a playground.” On appeal, Contreras argues the State failed to timely provide the Notices

to him.

          On Tuesday, May 7, 2013, six days prior to trial, the State filed the Notices in OnBase,

the electronic case management system for Dallas County’s criminal courts.            Each Notice

included a signed certificate of service stating: “[A] copy of this motion was emailed to attorney

for [Contreras], on May 7, 2013.” The State emailed the Notices to Contreras’s counsel; the

subject line of the email was: “motions service including amended dfz motion and dfz motion on

the PCS Meth case.” Contreras’s counsel was able to read the subject line of the email, but

stated he was unable to open the attachment with the electronic copies of the Notices.

          On Monday, May 13, 2013, jury selection began and the State provided Contreras’s

counsel with paper copies of the Notices. Counsel complained about receiving the Notices on

the first day of trial. Responding to his concerns, the trial court stated it would quash the jury

panel and instructed the parties to return the following morning for jury selection. The trial court

stated he would delay the trial to “give [counsel] an opportunity to this afternoon . . . to scout”

out the location of the playground alleged in the Notices.




                                                –2–
       The following day, May 14, 2013, the trial court began jury selection again with a new

venire. On May 15, 2013, Contreras’s counsel again complained the Notices were not provided

to him in a timely fashion. In response, the State provided a printout from OnBase showing the

Notices were filed on May 7, as well as the email sent to Contreras’s counsel.              While

acknowledging the State’s assertion that the Notices were filed in OnBase on May 7, 2013, and

that he received an email from the State about the Notices, Contreras’s counsel again argued he

was unable to open the attachment to the email and, therefore, did not receive timely notice.

Contreras’s counsel requested a ten-day continuance “so that I can prepare an expert to go out

and measure that [the distance between the playground the site of the offense] myself. . . I think

the exact distance is something that can be in dispute.” The trial court stated: “I did dismiss the

jury panel mid-afternoon Monday [when] this first flared up and - - I think I said so probably

give [sic] you an opportunity to make more investigation on the school zone site overnight. You

represented, I believe, you had already been out there to the location.” Counsel agreed he visited

the location. The trial court continued: “And so I recessed, gave you that opportunity to do that.

So that was the purpose behind that, obviously.” The trial court did not grant a continuance.

       Contreras’s two cases were tried together. The guilt-innocence stage of trial began on

May 15, 2013, and concluded on May 20, 2013, recessing two days for the weekend. At trial,

the State presented evidence concerning the proximity between the house where Contreras

conducted drug sales and the playground. After the State rested its case-in-chief, Contreras’s

counsel re-urged his objection to the timeliness of the Notices for the third time. He also

requested the trial court exclude the special issue asking the jury to determine whether Contreras

committed the offenses within 1,000 feet of a playground from the jury charge. The trial court

overruled the objection. The jury found Contreras committed the offenses within 1,000 feet of a

playground.

                                               –3–
       In a single issue, Contreras argues the State failed to timely notify him of its amended

enhancement allegations, which impaired his defense. While the indictment alleged the offenses

were committed within 1,000 feet of property owned, rented, or leased to a school or school

board, the Notices alleged the offenses were committed within 1,000 feet of a playground. A

school and a playground are drug-free zones. See TEX. HEALTH & SAFETY CODE ANN. § 481.134

(West Supp. 2014). When certain offenses are committed in drug-free zones, punishment may

be enhanced. See id.     The Texas Health and Safety Code does not specify when a notice of

intent to seek a drug-free zone finding must be given or the required manner of notice. See id.

       The record shows the State filed its Notices in OnBase and emailed the Notices to

Contreras’s counsel on May 7, 2013. Although Contreras’s counsel was unable to open the

attachment, Contreras’s counsel conceded he could read the subject line of the email: “motions

service including amended dfz motion and dfz motion on the PCS Meth case.” There is no

indication in the record that Contreras’s counsel contacted the State and requested the email

attachments be re-sent or that he was unable to access the Notices via OnBase.

       Additionally, voir dire with the first jury panel began on May 13, 2015, six days after the

State filed the Notices in OnBase and emailed them to Contreras’s counsel. Even in light of the

passage of six days between the State notifying counsel and the beginning of the trial, the trial

court quashed the original jury panel and recessed the case so that Contreras’s counsel could

investigate the merits of the amended allegations in the Notices. The trial court did not resume

jury selection until May 15, 2015, eight days after the State filed the Notices in OnBase and

emailed them to Contreras’s counsel.

       Based on this record, we conclude that Contreras failed to establish that his ability to

present a defense was impaired by the timing of the State’s Notices. Even if Contreras had a

defense to the drug-free zone allegation, he had sufficient time to develop that defense.

                                               –4–
Contreras’s counsel was notified six days prior to the beginning of trial that the State intended to

seek a punishment enhancement based on distance of the offenses to a playground. Additionally,

the trial court quashed the original jury panel and recessed for the purpose of allowing

Contreras’s counsel to visit the location of the playground, which he did. Voir dire did not begin

again until May 15, 2013. Finally, Contreras’s counsel did not rest his case until May 20, 2013,

nearly two weeks after he originally was notified of the Notices and one week after he received

paper copies of the Notices. Contreras’s counsel had sufficient time to investigate whether the

playground was within 1,000 feet of the site of the offense and to develop a defense to the drug-

free zone allegations. We overrule Contreras’s sole issue.

       In a single cross-issue, the State asserts the jury assessed a $10,000 fine in the marijuana

case and the trial court orally pronounced this fine. However, the written judgment does not

reflect the fine. The State requests that we modify the judgment to reflect a $10,000 fine.

       This Court has the authority to correct the trial court’s judgment to make the record speak

the truth when it has the necessary data and information to do so. See TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d

526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). The record reflects that the jury assessed a

$10,000 fine in the marijuana case and the trial court orally pronounced the fine as part of

Contreras’s sentence. The judgment, with the assessed sentence, is the written declaration and

embodiment of the oral pronouncement. TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West

Supp. 2013). When the oral pronouncement of a sentence and the sentence in the written

judgment conflict, the oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex.

Crim. App. 2004).




                                                –5–
       Because the jury’s sentence included a $10,000 fine and the trial court pronounced the

fine, we modify the judgment in cause number 05-13-00753-CR to reflect that a $10,000 fine

was assessed by the jury and orally pronounced by the trial court.

       We affirm the trial court’s judgment in cause number 05-13-00752-CR. We modify the

trial court’s judgment in cause number 05-13-00753-CR, and affirm as modified.




                                                     / Craig Stoddart/
                                                     CRAIG STODDART
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
130752F.U05




                                               –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

GEORGE CONTRERAS, Appellant                          On Appeal from the 282nd Judicial District
                                                     Court, Dallas County, Texas
No. 05-13-00752-CR         V.                        Trial Court Cause No. F-1231118-S.
                                                     Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                         Justices Fillmore and Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 8th day of June, 2015.




                                               –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

GEORGE CONTRERAS, Appellant                          On Appeal from the 282nd Judicial District
                                                     Court, Dallas County, Texas
No. 05-13-00753-CR         V.                        Trial Court Cause No. F-1231119-S.
                                                     Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                         Justices Fillmore and Whitehill participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect the $10,000 pronounced by the trial court. As modified, the judgment is AFFIRMED.


Judgment entered this 8th day of June, 2015.




                                               –8–
