                             NUMBER 13-08-00463-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ERIC SIMON PELACHE,                                                             Appellant,

                                             v.

THE STATE OF TEXAS,                                                              Appellee.


  On appeal from the 103th District Court of Cameron County, Texas.


                                       OPINION

         Before Chief Justice Valdez and Justices Garza and Vela
                     Opinion by Chief Justice Valdez

       Appellant, Eric Simon Pelache, was indicted for the offense of robbery with one

enhancement paragraph, a second-degree felony. See TEX . PENAL CODE ANN . § 12.42(b)

(Vernon Supp. 2008), 29.02 (Vernon 2003). Pelache elected to have a bifurcated trial. A

jury acquitted Pelache of the robbery charge, but found him guilty of the lesser-included

offense of theft of a person, a state-jail felony. See id. § 31.03(a), (e)(4)(B) (Vernon Supp.
2008). A sentencing hearing was set for three weeks later. Six days after the jury

rendered its guilty verdict, the State notified Pelache of its intent to enhance punishment

on the grounds that he had two other prior felony convictions. Sixteen days after the

State’s notice, at the sentencing hearing before the trial court, Pelache objected to the new

enhancement allegations and requested a sentence within the state-jail felony punishment

range. The trial court denied Pelache’s request, found the new enhancement allegations

true, and sentenced him to twenty years’ confinement, the maximum sentence for a

second-degree felony. See id. §§ 12.33, 12.42(a)(2) (Vernon 2003). In seven issues,

Pelache argues that: (1) the evidence is legally and factually insufficient to establish either

of the prior convictions; (2) the trial court erred in calculating the enhanced punishment

range; and (3) the enhanced punishment violates his right to due process. See U.S.

CONST . amend. XIV. We reverse the sentence and remand with instructions.

                                       I. BACKGROUND

       On February 20, 2008, a grand jury indicted Pelache for robbery; the indictment

included a single enhancement paragraph that alleged a September 7, 2000 conviction for

aggravated robbery. Shortly before jury selection began, Pelache’s counsel admonished

him as to the possible sentences that the trial court could impose. Counsel specifically

provided that:

       [Counsel]:    [Y]ou and I have reviewed the indictment that’s been filed
                     against you for second-degree robbery, which also includes an
                     enhancement paragraph, alleging a prior?

       Pelache:      Yes, sir.

       [Counsel]:    And, of course, I have discussed with you that the offense of
                     robbery is a second-degree offense which carries a
                     punishment of two-to-twenty years, and that in the event that

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                    you are found guilty of that robbery charge, and should the
                    state be able to prove that you have a prior final conviction that
                    resulted in you going to prison, that that second-degree felony
                    would then be enhanced to a first-degree felony?

      Pelache:      Yes, sir.

      [Counsel]:    And, of course, the range of punishment for a first-degree
                    felony being not less than five years to ninety-nine, or life?

      Pelache:      Yes, sir.

      [Counsel]:    And also, the fact that you have a prior conviction for a felony,
                    of course, that disqualifies you from requesting probation from
                    a jury?

      Pelache:      Yes, sir.

      [Counsel]:    And essentially, the jury—if this matter was left to the jury to
                    decide, and if you, in fact, are found guilty of the robbery and
                    the state was able to prove that you had a prior felony
                    conviction, that the jury would then have the range of
                    punishment to consider of five to ninety-nine, or life. Is that
                    correct?

      Pelache:      Yes, sir.

      [Counsel]:    Now, having discussed that possibility, is it—isn’t it true that
                    you and I discussed that you also have a right to go in front of
                    the Court, in front of the Judge?

      Pelache:      Yes, sir.

      [Counsel]:    And I’ve advised you that in the event that you’re found guilty,
                    that this Court will consider a range of punishment between 20
                    to 30 years. Do you understand?

      Pelache:      Yes, sir.

      Pelache also testified that the State had offered him a plea bargain. If he pleaded

guilty to a charge of theft of person, the State would recommend a sentence of two-years’

confinement in a state jail. But, after considering the facts, charges, and possible


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punishment, Pelache declined the plea bargain. Pelache then agreed to have the trial

court assess punishment, and a jury was selected. On April 15 and 16, 2008, the jury

heard testimony from, inter alia, Julia Cano, a convenience store clerk who testified that

Pelache robbed her, several law enforcement officers who testified as to their investigation,

and Pelache who testified in his own defense.

         On April 17, 2008, the jury found Pelache not guilty of the robbery charge, but guilty

of the lesser-included offense of theft of a person. On April 23, 2008, six days after the

jury rendered its verdict, the State filed a motion to enhance punishment requesting “leave

of Court to amend the indictment” to include two other charges that Pelache was convicted

of on September 7, 2000, one for aggravated robbery and another for possession of a

controlled substance. But see TEX . CODE CRIM . PROC ANN . art. 21.01 (Vernon 1989) (“An

‘indictment’ is the written statement of a grand jury accusing a person therein named of

some act or omission which, by law, is declared to be an offense.” (emphasis added)). The

State’s motion notified Pelache for the first time of its intention to use all three prior

convictions for enhancement purposes.1

         On May 9, 2008, the trial court held a punishment hearing, at which Pelache’s

counsel objected on the grounds that the State had not properly notified his client of the

enhancement of Pelache’s state-jail felony to a second-degree felony.2 The trial court


         1
          On April 7, 2008, the State responded to Pelache’s request to disclose intent to use evidence of
extraneous offenses by notifying him that it intended to introduce his three Septem ber 7, 2001 convictions.
See, e.g., T EX . C OD E C R IM . P R O C . A N N . art. 37.07, §3 (Vernon Supp. 2008). This notice, however, cannot be
construed as a notice of enhancem ent. See Fairrow v. State, 112 S.W .3d 288, 290-94 (Tex. App.–Dallas
2003, no pet.).

         2
          The dissent contends that Pelache failed to preserve his due process issues because he “did not
object that either the notice to him that the State was seeking to enhance his sentence, or the process of
enhancing his sentence violated his right to due process under either state or federal constitutional grounds.”

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denied Pelache’s request to sentence him within a state-jail felony punishment range,

admitted copies of three prior judgments of conviction,3 and sentenced Pelache to twenty

years’ confinement. This appeal ensued.

                                                II. DISCUSSION

        In his fifth and sixth issues, Pelache argues that the trial court’s enhancement of his

punishment from a state-jail felony to a second-degree felony violated his right to due

process because the State’s motion to enhance punishment was untimely.4 See U.S.

CONST . amend. XIV. The State contends that Pelache received constitutionally adequate

notice under Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006). We do not


This contention is unfounded. At the May 8, 2009 punishm ent hearing, Pelache’s counsel stated:

        Now, m y argum ent is that no notice was provided with regards to enhancing Mr. Pelache’s
        state-jail felony from a non-aggravated felony to an aggravated state-jail felony. . . . It’s m y
        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 enhancem ent, 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 punishm ent that you can
        consider in this case is basically a state-jail felony, between six to two m onths— between six
        m onths and two years. In the alternative, if the Court should not agree with us, not that I’m
        agreeing, but that one that would fit m ore than what the state is arguing, that it’s a second,
        would be a third-degree, not a second-degree felony. W e would object to that.

W e conclude that Pelache’s “specific grounds were apparent from the context.” See T EX . R. A PP . P. 33.1.
W e additionally conclude, contrary to the dissent’s finding, that Pelache adequately briefed his due process
issues.

        3
          The following convictions, dated Septem ber 7, 2000, were rendered by the 103rd Judicial District
Court of Cam eron County following Pelache’s guilty pleas: (1) trial court cause num ber 00-CR-523-D, first-
degree felony conviction for aggravated robbery; (2) trial court cause num ber 00-CR-522-D, first-degree felony
conviction for aggravated robbery; and (3) trial court cause num ber 95-CR-1523-D, state-jail felony conviction
for possession of a controlled substance. None of the convictions included a deadly weapon finding.

        4
          Pelache’s other issues are ancillary to his constitutional issues because they deal with the sufficiency
of the evidence supporting the enhancem ent allegations and the trial court’s calculation of the enhanced
sentence. Therefore, we address Pelache’s fifth and sixth issues out of order because they present a
threshold question. See In the Interest of B.L.D., 113 S.W .3d 340, 349 (Tex. 2003) (noting the prudential
principle that we decide constitutional questions only when we cannot resolve issues on nonconstitutional
grounds); see also., Turner v. State, 754 S.W .2d 668, 675 (Tex. Crim . App. 1988) (providing that the
constitutionality of a statute is not to be determ ined in any case unless such a determ ination is absolutely
necessary to decide the case in which the issue is raised).

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believe Villescas is controlling because the language relied upon in that case is dicta, at

best.

        In Villescas, the defendant was served six days before trial with the State’s notice

of enhancement. Villescas, 189 S.W.3d at 291. The defendant objected before trial and

again after the jury rendered its guilty verdict. Id. At the punishment hearing, the

defendant did not request more time to prepare. Id. On appeal, the Eighth Court of

Appeals held that the notice of enhancement requirement was of statutory origin, found the

trial court erred in overruling the defendant’s objection, and reversed the sentence after

conducting a harm analysis. Id. at 292. The court of criminal appeals held that the notice

of enhancement only had to satisfy constitutional safeguards, and it reversed and

reinstated the trial court’s sentence. Id. at 295. The court of criminal appeals, relying on

United States Supreme Court precedent, noted that “due process does not even require

that the notice be given before the guilt phase begins, much less that it be given a number

of days before trial.” Id. at 294 (citing Oyler v. Boles, 368 U.S. 448, 452 (1962)). The

phrase is dicta because it was a statement by the court that did “not embody the resolution

or determination of the specific case before the court.” See BLACK’S LAW DICTIONARY 545

(6th ed. 1990).

        Moreover, the Villescas court’s reliance on Oyler is untoward because Oyler was

presented to the United States Supreme Court on a habeas corpus proceeding, and

therefore, contrary to the court of criminal appeals’ belief, did not definitively set the

constitutional floor regarding enhancement notices. See Pena v. State, 191 S.W.3d 133,

142 (Tex. Crim. App. 2006) (Meyers, J., dissenting); Fugate v. State, 200 S.W.3d 781, 787



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(Tex. App.–Fort Worth 2006, no pet.) (Dauphinot, J., concurring) (“When the majority

opinion in Villescas provides that whether the notice is constitutionally adequate is the

ultimate issue, what it really means is that the ultimate issue is whether the late notice

harmed the defendant.”).

       A review of Oyler’s factual and procedural background reveals the dissimilarities

between it, Villescas, and the instant case. William Oyler was convicted of second-degree

murder, which carried a punishment range of five to eighteen years, on February 5, 1953.

Oyler, 368 U.S. at 449. Sentencing was deferred, but before the punishment hearing, the

State filed an information alleging that Oyler had three prior convictions in another state,

and under the habitual offender statute, he was subject to a mandatory life sentence. Id.

at 450. Oyler, accompanied by counsel, did not object and acknowledged the prior

convictions in open court. Id. The trial court then sentenced Oyler to life. Id. In 1960,

Oyler filed a habeas corpus application with the West Virginia Supreme Court of Appeals

alleging a denial of due process under the Fourteenth Amendment in that he had not been

given advance notice of his prosecution as a recidivist. Id. He claimed that such advance

notice would have allowed him to show the inapplicability of the habitual offender statute.

Id. The state supreme court rejected Oyler’s argument, as did the United States Supreme

Court, which noted that he was represented by counsel and did not object to the

applicability of the habitual offender statute at trial. Id. at 454. The United States Supreme

Court held that Oyler had essentially waived his due process argument because he did not

object before the trial court. Id. Oyler’s limited holding on waiver cannot be extended to

the instant case, where an objection was raised.



                                              7
        The State, relying on Villescas and this Court’s opinion in Ketchum v. State, 199

S.W.3d 581, 593 (Tex. App.–Corpus Christi 2004, pet. ref’d), posits that Pelache “waived”

review of his enhancement issues because he did not craft a record of defenses as to the

enhancement allegations, and thus, he cannot show harm. But Villescas and Ketchum are

easily distinguishable because in those cases, the criminal defendant was notified before

trial of the State’s intent to enhance his conviction. In this case, the State notified Pelache

of two additional punishment enhancements5 only after the jury rendered an acquittal on

the robbery charge. Thus, the State is seeking a punishment range that the jury could not

have anticipated in the trial on the primary offense.

        The basic due process violation in this case is of Pelache’s right to know the nature

of the charges he is accused of and the consequences of a conviction before jeopardy

attaches. This is a basic right that is well recognized in the federal criminal system. See,

e.g., United States v. Steen, 55 F.3d 1022, 1027 (5th Cir. 1995) (“[A] district court may

enhance a defendant’s sentence, as long as the government provides constitutionally

sufficient notice of the previous convictions through an information filed prior to trial.”)

(emphasis added). As Justice Douglas wrote for the four-justice minority opinion in Oyler:

        Adequate notice of the charge under these habitual-offender statutes is as
        important as adequate notice of the charge in an ordinary criminal trial. The
        notice required must be commensurate with the range and complexity of
        issues that concededly may be tendered. The requirements of notice, like
        those for a fair hearing, are basic.

Oyler, 368 U.S. at 462-63 (Douglas, J., dissenting).


        5
            W e note that the convictions referenced in the two other punishm ent enhancem ents were issued
by the sam e court on the sam e date as the conviction referenced in the enhancem ent paragraph that was
originally included in the indictm ent. Additionally, the record clearly reflects that the State was aware of these
two additional convictions on April 7, 2008, when it responded to Pelache’s request for inform ation.

                                                        8
       We cannot say beyond a reasonable doubt that the State’s failure to timely notify

Pelache of its intent to enhance punishment was a harmless error. See TEX . R. APP. P.

44.2(a). By enduring the current sentence, Pelache is harmed because his decisions to

proceed to trial and have the trial court assess punishment were based in part on the

potential consequences. After receiving admonishments from his attorney, Pelache

testified that he declined the State’s plea bargain after considering the facts, charges, and

possible punishment. Pelache also elected to have the trial court, instead of a jury, assess

punishment. Because Pelache entered a trial in which he was eventually sentenced to

twenty years’ confinement, instead of the punishment range for a state-jail felony (the

crime he was actually convicted of), his substantial rights were harmed. See TEX . PENAL

CODE ANN . § 12.35 (Vernon Supp. 2008).

       Pelache’s fifth and sixth issues are sustained.

                                      III. CONCLUSION

       We reverse the trial court’s sentence and remand for a new punishment hearing.

The trial court is instructed to assess a punishment without regard to the two improperly

noticed enhancement allegations.

                                                  _______________________
                                                  ROGELIO VALDEZ,
                                                  Chief Justice

Publish. TEX . R. APP. P. 47.2(b)

Dissenting Opinion by
Justice Rose Vela.

Opinion delivered and filed
this the 26th day of June, 2009.



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