                            NUMBER 13-17-00085-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ROGELIO ROY SUAREZ,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 357th District Court
                        of Cameron County, Texas.


                         MEMORANDUM OPINION
           Before Justices Rodriguez, Contreras, and Hinojosa
               Memorandum Opinion by Justice Contreras

      A jury convicted appellant, Rogelio Roy Suarez, of one count of aggravated assault

with a deadly weapon involving family violence, a second-degree felony, and one count

of injury to a child, a third-degree felony, with the punishment for both charges enhanced

due to a prior felony conviction. See TEX. PENAL CODE ANN. §§ 12.42(a), (b), 22.02(a)(2),

22.04(a)(3), (f) (West, Westlaw through 2017 1st C.S.). By a single issue, appellant
argues that he was provided with inadequate notice of the State’s intent to enhance his

punishment. We affirm.

                                               I.    BACKGROUND

           Appellant was indicted on October 5, 2016 on three counts: (1) aggravated assault

with a deadly weapon involving family violence; (2) injury to a child; and (3) assault-family

violence. See id. §§ 22.01(a)(1), (b-1), 22.02(a)(2), (b)(1), 22.04(a)(3), (f) (West, Westlaw

through 2017 1st C.S.).                In the indictment, only the assault-family violence charge

included an enhancement allegation for a prior felony conviction for continuous family

violence.          See id. §§ 12.42, 25.11 (West, Westlaw through 2017 1st C.S.).                            The

enhancement allegation provided the offense, the date, the convicting court, and the

cause number for the continuous family violence conviction that the State sought to use

to enhance appellant’s punishment.

           At trial, the evidence showed that on July 13, 2016, appellant was traveling in a

car with his girlfriend Daisy Cruz and her daughter C.C.1 During the car ride, an argument

erupted between appellant and Daisy, and appellant attacked Daisy and attempted to

stab her with a screwdriver. In doing so, appellant elbowed C.C. in the mouth as she was

defending her mother. Despite filing previous reports and initially cooperating with police,

while on the stand, Daisy denied having any recollection of the events surrounding

appellant’s charges.

           After the close of the State’s case-in-chief, appellant moved for a directed verdict

on the charge for assault-family violence, and the court granted it.2 Appellant then took


           1   Appellant and Daisy have since married. We refer to the minor victim by her initials to protect her
privacy.
           2
          The assault-family violence charge arose from an incident separate from the one which resulted
in the other two charges. However, Daisy was the alleged victim for both the assault-family violence charge

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the stand and denied the allegations against him, but admitted to being previously

convicted for the continuous family violence charge referenced in the indictment. On

January 19, 2017, the case went to the jury for a determination of guilt on the remaining

two counts, and the jury returned a guilty verdict for both.

        Before the punishment phase began, the State filed a notice of intent to enhance

the punishment for the two charges of which appellant was convicted: (1) aggravated

assault with a deadly weapon family violence, and (2) injury to a child. The conviction

that the State sought to use for enhancement was the same conviction that had been

alleged under the assault-family violence charge in the indictment. Appellant objected to

the enhancement because the form was improper, the notice was improper, and

“filing . . . for an enhancement [at that time] would not be proper.”

        On January 20, 2017, the court heard arguments from counsel on the State’s

notice to enhance, and appellant filed a motion to strike the enhancement in which he

argued that: (1) notice of the enhancement was improper and an infringement of his due

process rights; (2) as a result he was prevented from questioning jurors during voir dire

in violation of the Fifth and Sixth Amendments to the United States Constitution and under

article one, sections ten and nineteen of the Texas Constitution; and (3) enhancement of

the punishment for both charges posed a “constitutional problem [because] it increase[d]

the maximum possible punishment that is established in the statute for each offense.” 3



and the aggravated assault with a deadly weapon charge. Daisy testified that she could not remember any
of the events in regard to the assault-family violence charge, and the State was unable to provide any other
evidence in support thereof. C.C. and law enforcement personnel testified as to the other two charges.
         3 As a result of the enhancement, the punishment range for the charge for assault with a deadly

weapon increased from two-to-twenty years to five-to-ninety-nine years. See TEX. PENAL CODE ANN. §§
12.33, 12.42(b), 22.02 (West, Westlaw through 2017 1st C.S.). The punishment range for the injury to a
child charge was increased from two-to-ten years to two-to-twenty years. See id. §§ 12.34, 12.42(a), (b),
22.04 (West, Westlaw through 2017 1st C.S.).

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The court overruled appellant’s objections, and appellant moved for a continuance, which

the court denied.

       The punishment phase began that same day, and appellant pleaded “true” as to

the enhancement allegation for the previous conviction for continuous family violence.

The jury found the enhancement allegation true and assessed punishment at thirteen

years’ imprisonment for each count.        The court then sentenced appellant with the

sentences to run concurrently. This appeal followed.

                                  II.   APPLICABLE LAW

       When the State seeks to enhance a defendant’s punishment with evidence of a

prior conviction, the defendant’s right to notice of the prior conviction is grounded in due

process. Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006). “The accused

is entitled to a description of the judgment of former conviction that will enable him to find

the record and make a preparation for a trial of the question of whether he is the named

convict therein.” Id. (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App.

1978)). Proper notice of intent to enhance punishment must be given in a timely manner,

but it need not be pleaded in the indictment itself to be considered proper notice, so long

as it is pleaded “in some form.” Ketchum v. State, 199 S.W.3d 581, 592 (Tex. App.—

Corpus Christi 2006, pet. ref’d) (citing Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim.

App. 1997)).

       “[F]or purposes of conducting a due-process analysis, the determination of

whether proper notice of enhancements was given does not require that notice be given

within a particular period of time before trial or before the guilt phase is completed.”

Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010). “[A] defendant’s federal



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constitutional due-process rights are not violated by post-guilt, pre-punishment-phase

notice of the State’s intent to enhance his punishment with a prior conviction.” Ex parte

Parrott, 396 S.W.3d 531, 537 (Tex. Crim. App. 2013) (citing Pelache, 324 S.W.3d at 577).

“Even when a defendant receives notice after he has been convicted, his due-process

rights are not violated as long as notice is sufficient to enable him ‘to prepare a defense

to them,’ and he is afforded an opportunity to be heard.” Id. (quoting Pelache, 324 S.W.3d

at 577). Rather, “[i]n determining whether appellant received sufficient notice of the

State’s intent to enhance punishment, we look to the record to identify whether appellant’s

defense was impaired by the timing of the State’s notice.” Pelache, 324 S.W.3d at 577.

       When the accused has no defense to the enhancement allegation and has not

suggested the need for a continuance to prepare one, notice given at the beginning of

the punishment phase satisfies due process. Villescas, 189 S.W.3d at 294; see Ex parte

Parrott, 396 S.W.3d at 537.

                                   III.   DISCUSSION

       By one issue, appellant argues that he was provided with inadequate notice of the

State’s intent to enhance his punishment.

       Appellant first argues that the State’s notice of enhancement filed after the guilt-

and-innocence phase of trial violated his due process rights.        Here, the indictment

included an enhancement allegation identifying the previous conviction that was later

used to enhance the two charges that resulted in convictions. The indictment also

provided appellant with the specific offense, the date of the offense, the county and court

where the judicial proceedings took place, and the cause number for the proceedings.

Thus, we conclude that appellant had notice from the date of the indictment of the State’s



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intent to enhance punishment by using his prior felony conviction for continuous family

violence. See Villescas, 189 S.W.3d at 293. And, the indictment was filed 104 days

before trial began. Therefore, appellant had sufficient notice “to make a preparation for

a trial of the question of whether he [was] the named convict” for that offense, and his

argument that notice was given after the guilt-and-innocence phase of trial is without

merit. Id.; see Oyler v. Boles, 368 U.S. 448, 504 (1962).

       The record also reflects that appellant’s defense was not impaired in any way—

appellant neither denied nor contested the allegation that he had been convicted of that

previous felony; rather, appellant admitted during his testimony at trial that it was he who

had been convicted of the alleged offense, and he pled “true” to the allegation during the

punishment phase.      See Pelache, 324 S.W.3d at 577.          Thus, the enhancement of

appellant’s punishment with his prior conviction for continuous family violence did not

violate his due-process rights. See Ex parte Parrott, 396 S.W.3d at 537; Pelache, 324

S.W.3d at 577; Villescas, 189 S.W.3d at 294.

       Appellant also appears to argue within this sub-issue that the enhancement of his

punishment according to the statute was unconstitutional. However, the statute has been

upheld as constitutional. See, e.g., McCardell v. State, 557 S.W.2d 289, 291 (Tex. Crim.

App. 1977); Schultz v. State, 510 S.W.2d 940, 944 (Tex. Crim. App. 1974). Accordingly,

we reject this argument.

       Finally, appellant argues that, as a result of the State’s late notice of its intent to

enhance, he was prevented from questioning jurors during voir dire about any existing

bias over the maximum possible sentence. However, having previously concluded that




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appellant received timely and sufficient notice of the State’s intent to enhance, this

argument necessarily fails.

       We overrule appellant’s sole issue.

                                  IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                      DORI CONTRERAS
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
15th day of March, 2018.




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