                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00217-CR


LARRY MEYER                                                           APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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       FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
                TRIAL COURT NO. CR-2014-03204-B

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                           MEMORANDUM OPINION1

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      A jury found Appellant Larry Meyer guilty of the offense of driving while

intoxicated with a previous conviction for driving while intoxicated and assessed

his punishment at 180 days in jail and a $2,500 fine. Tex. Penal Code Ann.

§ 12.43(a) (West 2011), §§ 49.04(a), 49.09(a) (West Supp. 2016). In one issue,

Appellant argues that the trial court erred by overruling his objection and allowing


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          See Tex. R. App. P. 47.4.
the State to amend the information on the day of trial and by denying his request

for a ten-day continuance. We affirm.

                                  BACKGROUND

        On May 2, 2014, the State filed an information containing three

paragraphs. In the first paragraph, the State charged Appellant with driving while

intoxicated, a Class B misdemeanor. Id. § 49.04(a), (b). The second paragraph

alleged a prior conviction for driving while intoxicated, which, if true, raised the

punishment range to a Class A misdemeanor with a minimum term of

confinement of thirty days.    Id. § 49.09(a).   The third paragraph alleged that

Appellant had an alcohol concentration at or above 0.15, which, if true, also

would have raised the punishment range to a Class A misdemeanor but without

the minimum term of confinement. Id. § 49.04(d). On December 11, 2014, the

State filed a “Notice of State’s Intent to Enhance Punishment Range” in which it

alleged that it was seeking a further enhancement of Appellant's punishment

range based upon his Class A misdemeanor conviction for criminal trespass in

2000.     We refer to this as the State’s “enhancement notice.”          Assuming

Appellant’s punishment was otherwise a Class A misdemeanor, this allegation, if

true, raised the minimum term of confinement to not less than ninety days. Id.

§ 12.43(a)(2).

        On June 22, 2015, Appellant entered a guilty plea to the offense of driving

while intoxicated alleged in the information. Appellant entered a plea of true to

the paragraph alleging his prior conviction for driving while intoxicated. The State


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abandoned the paragraph alleging a blood alcohol concentration at or above

0.15. Appellant indicated his intent to stipulate to the prior conviction of criminal

trespass alleged by the State’s enhancement notice:

      [Defense counsel]: I think we’ve already entered a plea of true to
      the enhancement. As far as the admissibility of the prior criminal
      history that the [S]tate’s disclosed to me, we’ll stipulate to both of
      those. So there won’t be a need for any kind of identification, or
      fingerprinting, or things of that nature.

      The Court: Okay.

      [Defense counsel]: And it’s my understanding they just have two.
      They have a prior conviction for criminal trespass in 2000, and then,
      of course, the prior DWI conviction that’s in the Information.

      [Prosecutor]: That’s correct.

      [Defense counsel]: And actually, Judge, I don’t know—it would be
      kind of unusual, but I wouldn’t have a problem going ahead and
      proceeding. If the [S]tate doesn’t have any witnesses, we could go
      ahead and put on our witnesses and then adjourn until they can get
      theirs in.

After agreeing to stipulate to the alleged prior conviction for criminal trespass in

the State’s enhancement notice, Appellant argued that the notice constituted an

amendment to the information, requiring a ruling by the trial court, and because

the trial court made its ruling on the date of trial, Appellant was entitled to either a

ten-day continuance or to have the enhancement notice stricken pursuant to

articles 28.10 and 28.11 of the code of criminal procedure. See Tex. Code Crim.

Proc. Ann. arts. 28.10–.11 (West 2006).         Appellant characterized the State’s

enhancement notice as a motion for leave to amend the information that required

an order granting it. The trial court stated that the State did not file a motion to


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amend the information and verified with the State that its position was that it was

entitled to the enhancement provision without having to amend the information.

The trial court denied Appellant’s request for a continuance and allowed the

State to proceed on the enhancement. The judgments for the prior convictions

for the offenses of driving while intoxicated and criminal trespass were admitted

during trial.

       Appellant conceded at trial and on appeal that adequate notice had been

supplied for the State’s enhancement notice. The State filed its enhancement

notice on December 11, 2014. Trial was on June 22, 2015.

                                   ARGUMENT

       In one issue, Appellant argues that the trial court violated articles 28.10

and 28.11 of the code of criminal procedure and reversibly erred when it

overruled his objection, denied his request for a ten-day continuance, and

allowed the State to amend its information on the day of trial. We disagree that

articles 28.10 and 28.11 apply.

       Article 28.10 of the code of criminal procedure provides,

              (a) After notice to the defendant, a matter of form or substance
       in an indictment or information may be amended at any time before
       the date the trial on the merits commences. On the request of the
       defendant, the court shall allow the defendant not less than 10 days,
       or a shorter period if requested by the defendant, to respond to the
       amended indictment or information.

             (b) A matter of form or substance in an indictment or
       information may also be amended after the trial on the merits
       commences if the defendant does not object.



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              (c) An indictment or information may not be amended over the
       defendant’s objection as to form or substance if the amended
       indictment or information charges the defendant with an additional or
       different offense or if the substantial rights of the defendant are
       prejudiced.

Tex. Code Crim. Proc. Ann. art. 28.10.

       Article 28.11 of the code of criminal procedure provides,

              All amendments of an indictment or information shall be made
       with the leave of the court and under its direction.

Id. art. 28.11.

       We agree with the State’s position that these statutory provisions do not

apply because the State did not file a motion to amend the information. Rather,

the State filed a notice of intent to enhance the punishment range pursuant to

Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997).                 The State

proceeded to trial on the information as originally drawn.             Enhancement

paragraphs need not be pled in the indictment or information. See id. at 33–34.

Enhancement paragraphs must, however, be pled in some form. Id. at 34.

       The “Notice of State’s Intention to Enhance Punishment Range” provided,

             Comes now the State of Texas, by and through her Assistant
       Criminal District Attorney, Zane Reid, and files this notice of intention
       to enhance the punishment range to a 90 day minimum jail sentence
       using a prior Felony conviction or prior Class A Misdemeanor
       conviction, pursuant to section 12.43 of the Texas Penal Code, and
       would show the court the following:

                                          I.

              Before the commission of the offense alleged above:




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            1. The Defendant was convicted of Criminal Trespass (of a
      habitation-class A) on or about July 12, 2000 in Denton County,
      Texas in Cause No. 2000-02145-B.

      A “pleading” is “[a] formal document in which a party to a legal proceeding

(esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or

defenses.” Pleading, Black’s Law Dictionary (10th ed. 2014). We hold that the

State’s December 11, 2014 “Notice of State’s Intention to Enhance Punishment

Range” satisfied the requirement articulated in Brooks that the enhancement had

to be pled somewhere. See Villescas v. State, 189 S.W.3d 290, 291, 295 (Tex.

Crim. App. 2006) (holding State’s “notice of enhancement” describing a prior

burglary conviction was sufficient notice); Brooks, 957 S.W.2d at 34 (“prior

convictions used as enhancements must be pled in some form, but they need not

be pled in the indictment”); Hudson v. State, 145 S.W.3d 323, 326 (Tex. App.—

Fort Worth 2004, pet. ref’d) (“[T]he State’s notice, which included evidence of

three prior felony convictions, each specified by cause number, classification of

offense, county of conviction, and date of conviction, was a sufficient pleading

that gave notice of the prior convictions that would be used for enhancement of

punishment.”); see also Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App.

1978) (“The accused is entitled to a description of the judgment of former

conviction that will enable him to find the record and make preparation for a trial

of the question whether he is the convict named therein.”); Williams v. State,

172 S.W.3d 730, 736 (Tex. App.—Fort Worth 2005, pet. ref’d) (same); cf.

Throneberry v. State, 109 S.W.3d 52, 59 (Tex. App.—Fort Worth 2003, no pet.)


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(“[W]e cannot conclude that an informal letter [sent by the prosecutor to defense

counsel] admitted into evidence after the guilt-innocence phase constitutes a

pleading in any form.”).

      We also hold that articles 28.10 and 28.11 of the code of criminal

procedure do not apply to enhancements. Both apply to amendments to an

indictment or an information.        As shown by Brooks, enhancements are

independent of an indictment or an information. See Brooks, 957 S.W.2d at 33–

34. The United States Supreme Court has written,

              Even though an habitual criminal charge does not state a
      separate offense, the determination of whether one is an habitual
      criminal is [“]essentially independent[”] of the determination of guilt
      on the underlying substantive offense. Thus, although the habitual
      criminal issue may be combined with the trial of the felony charge,
      [“]it is a distinct issue, and it may appropriately be the subject of
      separate determination.[”]

Oyler v. Boles, 368 U.S. 448, 452, 82 S. Ct. 501, 503–04 (1962) (citations

omitted) (quoting respectively Chandler v. Fretag, 348 U.S. 3, 8, 75 S. Ct. 1, 4

(1954), and Graham v. West Virginia, 224 U.S. 616, 625, 32 S. Ct. 583, 586,

(1912)).

      Articles   28.10     and   28.11   govern   indictments   and   informations.

Enhancements are not governed by the same rules as indictments and

informations. See Brooks, 957 S.W.2d at 33–34; Sheppard v. State, No. 04-13-

00037-CR, 2014 WL 2601613, at *1, *4 (Tex. App.—San Antonio June 11, 2014,

pet. ref’d) (mem. op., not designated for publication) (holding that unruled-upon

motion to amend indictment filed eleven months before trial provided both


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sufficient pleading and sufficient notice); see also Oyler, 368 U.S. at 452, 82

S. Ct. at 503–04.     We have previously declined to hold that “a separate

enhancement notice that could affect punishment is a ‘de facto’ amendment to

the indictment requiring a minimum of ten days’ notice in compliance with article

28.10(a).” Williams, 172 S.W.3d at 736. We accordingly hold that the trial court

did not err by overruling Appellant’s objections based upon articles 28.10 and

28.11.

      Appellate courts review the denial of a motion for continuance under an

abuse of discretion standard. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim.

App. 1996), cert. denied, 522 U.S. 825 (1997). To show an abuse of discretion,

there must be a showing of actual prejudice. Id. Because the State filed its

notice approximately six months before trial, because the notice was all Appellant

was entitled to, because Appellant acknowledged at trial and in his brief he had

adequate notice, and because Appellant indicated at trial he was willing to

stipulate to the enhancement—thereby showing he was aware of it and had

determined not to contest it—Appellant cannot show harm.         Tex. R. App. P.

44.2(b); see Wright v. State, 28 S.W.3d 526, 531–32 (Tex. Crim. App. 2000),

cert. denied, 531 U.S. 1128 (2001).2 We hold that the trial court did not abuse its

discretion by denying Appellant’s motion for continuance. See id.


      2
       Wright was superseded on other grounds by statute. See Coleman v.
State, No. AP-75478, 2000 WL 4696064, at *11 (Tex. Crim. App. Dec. 9, 2009)
(not designated for publication), cert. denied, 562 U.S. 843 (2010).


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      We overrule Appellant’s sole issue.

                                CONCLUSION

      Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment.



                                             /s/ Anne Gardner
                                             ANNE GARDNER
                                             JUSTICE

PANEL: DAUPHINOT and GARDNER, JJ.; and KERRY FITZGERALD (Senior
Justice, Retired, Sitting by Assignment).

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

DELIVERED: December 30, 2016




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