                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-130-CR


PATRICK BRAUN                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      A jury convicted Appellant Patrick Braun of the felony offense of driving

while intoxicated, enhanced by two previous felony convictions, and sentenced

him to forty years’ confinement. In five issues, Braun argues that the State

provided him with insufficient notice of its intent to enhance his punishment,




      1
          … See Tex. R. App. P. 47.4.
that the punishment evidence is insufficient to support the State’s enhancement

allegations, and that the trial court erred by denying his motions for mistrial.

We affirm in part and reverse and remand in part for a new punishment trial.

                 II. C ONFESSION OF E RROR AND A GREED R EMAND

      The State filed a “State’s Confession of Error, Agreed Motion Requesting

Remand For A New Punishment Hearing, and Agreed Waiver of Oral Argument.”

Therein, the State acknowledged that Braun “is entitled to a new punishment

hearing” because the State presented all of its punishment evidence before

arraignment, but Braun never stipulated to the evidence, and the State never

reintroduced the evidence after arraignment. The State also acknowledged that

this court has jurisdiction over the appeal if Braun was sentenced in open court

on the date memorialized in the judgment. In an order dated December 9,

2008, we granted in part the portion of the State’s motion requesting waiver

of oral argument. We also stated that we would consider the remainder of the

motion upon submission. Although the parties agreed to remand the case for

a new punishment hearing, the rules of appellate procedure do not allow us to

dispose of criminal cases by agreement other than by dismissing the appeal.

See Depew v. State, 843 S.W.2d 87, 88–89 (Tex. App.—Dallas 1992, no

pet.). Compare Tex. R. App. P. 42.1(a)(2) (providing that in civil cases, this

court may, in accordance with agreement of the parties, “set aside the trial

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court’s judgment without regard to the merits and remand the case to the trial

court for rendition of judgment in accordance with the agreements”), with Tex.

R. App. P. 42.2 (allowing appellate court to dismiss appeal in criminal cases

upon appellant’s filing a withdrawal of notice of appeal in accordance with the

rule). Accordingly, we deny the remainder of the State’s motion.

                               III. B ACKGROUND

      The March 2007 original indictment alleged that Braun had committed

DWI and that he had two previous convictions for DWI. The indictment further

alleged in a single enhancement paragraph that Braun had been convicted of the

felony offense of burglary of a building in Wise County, cause number 9138.

On August 31, 2007, the State filed its notice of intent to enhance the

punishment range applicable to Braun’s prosecution, indicating that Braun had

previously been convicted of two additional felony offenses—burglary of a

building (cause number 0276862D in Tarrant County) and unlawful delivery of

a controlled drug (cause number CF-95-23 in Mayes County, Oklahoma).

Thereafter, on November 28, 2007, the State filed a motion to amend the

original indictment, which the trial court granted on December 28, 2007. The

amended indictment contained the same single enhancement paragraph as

found in the original indictment (that Braun had been convicted of the felony

offense of burglary of a building in Wise County, cause number 9138), but it

                                      3
did not contain the two additional felony convictions set forth in the State’s

August 31, 2007 notice of intent to enhance Braun’s punishment range.

      After the jury found Braun guilty of felony DWI, the State proceeded to

put on its punishment evidence—which included evidence supporting the two

enhancement allegations set forth in the State’s August 31, 2007 notice of

intent to enhance punishment—before the enhancement allegations were read

and before Braun had entered his plea thereon.2 After both the State and Braun

had rested and closed, the trial court permitted the State to reopen for the

purpose of reading the enhancement allegations and taking Braun’s pleas. The

enhancement allegations were read, and Braun entered a plea of not true to the

allegations. But the State did not reintroduce the evidence that it had put on

prior to the reading of the allegations, nor did Braun stipulate to the previously

introduced evidence. Both sides then made closing arguments after the charge

was read to the jury.      In assessing Braun’s punishment at forty years’

confinement, the jury found both enhancement allegations (unlawful delivery of

a controlled drug, cause number CF-95-23, and burglary of a building, cause

number 0276862D) to be true.




      2
        … The State abandoned the enhancement paragraph contained in the
amended indictment and, for enhancement purposes, relied solely upon the two
allegations contained in its August 31, 2007 notice of intent to enhance.

                                        4
            IV. P UNISHMENT E VIDENCE AND E NHANCEMENT P ROCEDURES

      In his second and third issues, Braun argues that the evidence introduced

by the State at punishment is legally insufficient to support the enhancement

allegations because the State failed to read the allegations upon which it

intended to rely for enhancement purposes and because the trial court failed to

secure Braun’s plea to the allegations before the State presented its punishment

evidence. Citing the double jeopardy clauses contained within the federal and

state constitutions, Braun additionally contends that this court must enter a

finding of “not true” to the State’s enhancement allegations and that relitigation

of the enhancement allegations is prohibited.

      It has long been the rule that the reading of the enhancement allegations

and the entry of the defendant’s plea thereon are mandatory and that no issue

is joined between the State and the defendant with respect to the defendant’s

prior criminal record if this is not done. Turner v. State, 897 S.W.2d 786, 788

(Tex. Crim. App. 1995); Welch v. State, 645 S.W.2d 284, 285 (Tex. Crim.

App. 1983); Mendez v. State, 212 S.W.3d 382, 388 (Tex. App.—Austin 2006,

pet. ref’d); see also Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon 2007)

(requiring that the indictment or information be read to the jury but that the

nonjurisdictional enhancement allegations are not read until the punishment

phase). After the enhancements are read and the defendant’s plea is entered,

                                        5
the State is required to introduce evidence in support of the enhancements.

Hernandez v. State, 190 S.W.3d 856, 867 (Tex. App.—Corpus Christi 2006,

no pet.). If the enhancement allegations are not read and the defendant’s plea

is not made prior to the introduction of evidence in support of the

enhancements, the error can be cured by reading the enhancement paragraphs,

having the defendant plead to it, and reintroducing the evidence. Turner, 897

S.W.2d at 789 n.5; Welch, 645 S.W.2d at 285; Mendez, 212 S.W.3d at 388;

Meadows v. State, No. 08-05-00394-CR, 2007 W L 1651324, at *6 (Tex.

App.—El Paso June 7, 2007, no pet.) (not designated for publication). It is

error to permit the jury to consider enhancement evidence admitted before the

entry of the defendant’s plea.    Welch, 645 S.W.2d at 285; Mendez, 212

S.W.3d at 388.

      Here, the State’s enhancement allegations were not read and Braun’s plea

to the enhancement allegations were not made prior to the introduction of the

State’s evidence in support of the enhancements. Although the State belatedly

read the enhancement allegations and Braun entered his pleas, the State failed

to reoffer its evidence, and Braun did not stipulate to the State’s evidence. 3




      3
        … Braun objected and moved for a mistrial on this issue before the trial
court allowed the State to reopen for the purpose of reading the enhancement
allegations and entering Braun’s plea.

                                       6
This code of criminal procedure article 36.01 violation renders insufficient the

evidence supporting the jury’s “True” findings to the enhancement allegations

that Braun had a prior felony conviction for unlawful delivery of a controlled

drug (cause number CF-95-23) and that prior to his commission of that offense,

Braun had been convicted of the felony offense of burglary of a building (cause

number 0276862D).

      Caselaw addressing this issue indicates that this particular type of error

is subject to a nonconstitutional error harm analysis. See Mendez, 212 S.W.3d

at 388; Hernandez, 190 S.W.3d at 868–69; see also Wilson v. State, No. 05-

02-01233-CR, 2003 WL 22853408, at *4–5 (Tex. App.—Dallas Dec. 3, 2003,

pet. ref’d) (not designated for publication) (holding evidence insufficient to

support enhancement allegation and stating that the “error implicates

appellant’s statutory right to . . . have the jury consider the correct punishment

range but does not implicate appellant’s constitutional rights”).      Thus, we

disregard the error unless it affected Braun’s substantial rights. Tex. R. App.

P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

      Because the only evidence that Braun had been previously convicted of

the two enhancement allegations was introduced before he entered his plea to

the enhancement allegations, the evidence was not properly before the jury.

The article 36.01 violation thus enabled the jury to consider a greater range of

                                        7
punishment than what was legally permissible.4         The jury’s punishment

assessment of forty years’ confinement falls within the range of punishment

that the jury was impermissibly able to consider and beyond the range of

punishment applicable to a third-degree felony. Compare Tex. Penal Code Ann.

§ 12.34(a), with Tex. Penal Code Ann. § 12.42(d). It is thus clear that the

jury’s consideration of the evidence for the purpose of enhancement harmed

Braun. See Welch, 645 S.W.2d at 285; Mendez, 212 S.W.3d at 388. We hold

that the error affected Braun’s substantial rights. See Tex. R. App. P. 44.2(b).

      This particular type of error does not have double jeopardy implications.

See Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999) (adopting




      4
        … The amended indictment alleged that Braun had previously been
convicted of two other DWI offenses. See Tex. Penal Code Ann. § 49.04(a)
(Vernon 2003), § 49.09(b)(2) (Vernon Supp. 2008). An offense under section
49.04 is a felony of the third degree if it is shown at trial that the defendant
has previously been convicted two times of any other offense relating to the
operation of a motor vehicle while intoxicated. Id. § 49.09(b)(2). The
punishment range for an individual adjudged guilty of a third-degree felony is
imprisonment of not more than ten years or less than two years. Id. § 12.34(a)
(Vernon 2003). However, if it is shown on the trial of a felony offense (other
than a state jail felony punishable under section 12.35(a)) that the defendant
has previously been finally convicted of two felony offenses, and the second
previous felony conviction is for an offense that occurred subsequent to when
the first previous conviction became final, the defendant shall be punished by
imprisonment for life or for any term of not more than ninety-nine years or less
than twenty-five years. Id. § 12.42(d) (Vernon Supp. 2008). Thus, the jury
was impermissibly able to consider a range of punishment of life or twenty-five
to ninety-nine years (as indicated by the trial court’s charge on punishment).

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United States Supreme Court’s holding that it would not violate federal double

jeopardy principles to allow the State a second chance to present its proof of

a previous conviction); Ex parte Drake, 212 S.W.3d 822, 825 (Tex.

App.—Austin 2006, pet. ref’d) (stating that with respect to multiple

punishments, the Texas constitution’s guarantee against double jeopardy does

not afford any greater protection than the Fifth Amendment); Mendez, 212

S.W.3d at 389; Wilson v. State, No. 05-05-01502-CR, 2007 WL 155111, at

*1 (Tex. App.—Dallas Jan. 23, 2007, pet. ref’d) (not designated for

publication). We sustain Braun’s second and third issues to the extent that he

complains about the sufficiency of the evidence to support the enhancement

allegations in light of the code of criminal procedure article 36.01 violation.

                                   V. N OTICE

      In his first issue, Braun argues that his punishment could not have been

enhanced by the two felony conviction allegations contained in the State’s

August 31, 2007 notice of intent to enhance because the two felony conviction

allegations in the notice were not included in the amended indictment. He

reasons that the amended indictment, “which included the allegation of only

one prior felony conviction for enhancement purposes, operated to supersede,

and thereby foreclose submission to the jury of, the enhancement allegations

contained in the State’s prior ‘notice’ pleading.”      Braun thus specifically

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contends that he was not on notice that the State intended to rely on the two

prior felony convictions for enhancement purposes.5

      A defendant is entitled to notice of the State’s intention to use prior

convictions for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim.

App. 1997). While it is the preferable method for providing notice, the State

is not required to allege enhancements solely in the indictment; rather, they

must simply be pleaded in some form. Id. at 33–34; see also Villescas v. State,

189 S.W.3d 290, 292–93 (Tex. Crim. App. 2006). Notice must be provided

to the defendant so that he is aware that “a greater penalty is to be sought

than for a first offense, and to enable him to take issue thereon, and if possible

show there is a mistake in identity, or that there was no final former conviction

or the like.” Hollins v. State, 571 S.W.2d 873, 876 (Tex. Crim. App. 1978).

      The State filed its original indictment in March 2007. On August 31,

2007, the State filed its notice of intent to enhance the punishment range

applicable to Braun’s prosecution, which indicated that Braun had previously

been convicted of two additional felony offenses.       The State subsequently

amended the original indictment. Although the amended indictment superseded

the original indictment, it did not have the effect of retroactively extinguishing




      5
          … The State does not confess error on this issue.

                                        10
the State’s separate notice of its intent to use the prior felony convictions for

enhancement purposes.         Notwithstanding the amended indictment, Braun

received sufficient notice of the State’s intent to use the felony convictions as

required by Brooks. See Brooks, 957 S.W.2d at 33–34. We overrule Braun’s

first issue.

                  VI. M OTIONS FOR M ISTRIAL AND D IRECTED V ERDICT

      In his fourth and fifth issues, Braun argues that the trial court erred by

denying his motions for mistrial and motion for directed verdict.6 Should this

court determine that the trial court erred by denying his motions for mistrial and

motion for directed verdict, he requests that we grant him a new trial on both

guilt and punishment or grant him a new trial on punishment only. According

to the agreed motion filed by the State, however, Braun has now agreed that

the case should be remanded for a new punishment trial only, not for a new

trial on guilt too. Although the motion states that by agreeing to a remand for

a new punishment hearing, Braun “does not waive his right to challenge his

retrial on grounds that his double jeopardy rights under federal and state

constitutions have been violated,”      Braun’s double jeopardy arguments are

relevant to his second and third issues, not his fourth and fifth issues. Because




      6
          … The State does not confess error on these issues.

                                         11
Braun has agreed that the case should be remanded for a new punishment trial,

we need not address his fourth and fifth issues to the extent they request that

he be granted a new trial on guilt in addition to punishment.7 See Tex. R. App.

P. 47.1. To the extent Braun contends in his fourth and fifth issues that he is

entitled to a new trial on punishment, we need not further address these

arguments because we have determined that Braun is entitled to such relief

under his second and third issues. See id.



      7
        … Braun has nonetheless waived his fourth and fifth issues requesting
such relief. To present an issue for appellate review, “[t]he brief must contain
a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” Tex. R. App. P. 38.1(h) (emphasis
added). This requirement is not satisfied by merely uttering brief conclusory
statements unsupported by legal citations. Valadez v. Avitia, 238 S.W.3d 843,
845 (Tex. App.—El Paso 2007, no pet.). Failure to cite legal authority or
provide substantive analysis of the legal issue presented results in waiver of the
complaint. Id. Braun’s discussion of his fourth issue fails to cite any relevant
authority, including the applicable standard of review, and his discussion of his
fifth issue contains only one citation to a case for the broad proposition that a
trial court may declare a mistrial based on manifest necessity. His issues
include no citation and analysis of any authority addressing whether the trial
court abused its discretion by not granting his motions for mistrial or directed
verdict in light of the specific procedural issues addressed above, nor do his
issues set forth any authority supporting his contention that he is entitled to a
new trial on both guilt and punishment instead of only on punishment. If there
is any distinction between Braun’s motion for mistrial and motion for directed
verdict, Braun’s fifth issue fails entirely to address his argument that the trial
court erred by denying his motion for directed verdict. Thus, notwithstanding
Braun’s agreement to remand the case for a new punishment trial, to the extent
Braun contends that he is entitled to a new trial on both guilt and punishment,
we hold that Braun failed to preserve his fourth and fifth issues for appellate
review. See Tex. R. App. P. 38.1(h).

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                               VII. C ONCLUSION

      Having sustained in part Braun’s second and third issues, we affirm the

trial court’s judgment of conviction, but we reverse the trial court’s judgment

on punishment and remand the cause for a new punishment trial because the

error identified above relates to punishment only. See Tex. R. App. P. 43.2(d);

Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2008); Mendez, 212

S.W.3d at 389; Hernandez, 190 S.W.3d at 872; Wilson, 2003 WL 22853408,

at *7.




                                           WILLIAM BRIGHAM
                                           JUSTICE

PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 5, 200




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