                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00311-CR


TOMMY DALE SLAUGHTER                                            APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 1357576D

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION


     A jury convicted Appellant Tommy Dale Slaughter of the offense of

possession of one gram or more, but less than four grams, of methamphetamine.

See Tex. Health & Safety Code Ann. §§ 481.102(6); 481.115(c) (West 2010).


     1
      See Tex. R. App. P. 47.4.
The trial court found the repeat-offender allegation to be true and sentenced

Slaughter to twelve years’ confinement. See Tex. Penal Code § 12.42(a) (West

Supp. 2014). Slaughter perfected this appeal. He raises one issue asserting

that the trial court erred in various respects by finding the repeat-offender

allegation to be true and by imposing punishment that exceeded the non-

enhanced punishment range.2 Because the trial court did not err, we will affirm

the trial court’s judgment.


                              II. BACKGROUND FACTS3

       The repeat-offender notice in Slaughter’s indictment stated:

              Repeat Offender Notice: And it is further presented to said
      court that prior to the commission of the offense or offenses set out
      above, the defendant was finally convicted of the felony offense of
      possession of a controlled substance 1-4 grams, in the 18th judicial
      district court of Johnson County, Texas, in cause number F44784,
      on the 21st day of December 2010.

At the punishment phase of trial, the judgment for the offense stated in the

repeat-offender notice was introduced into evidence through the custodian of

      2
        The offense of possessing one gram or more, but less than four grams, of
methamphetamine is a third-degree felony that generally carries a punishment
range of two to ten years’ confinement. See Tex. Health & Safety Code §
481.115(c); Tex. Penal Code Ann. § 12.34(a) (West 2011). But, upon proof of a
previous final conviction of a non-state jail felony offense, the punishment range
for this offense may be enhanced to the punishment range of a second-degree
felony, which is two to twenty years’ confinement. See Tex. Penal Code Ann. §§
12.33 (West 2011), 12.42(a).
      3
       Because Slaughter’s complaints on appeal relate solely to the repeat-
offender notice, we need not set forth the underlying facts leading to the charge
against him. See Tex. R. App. P. 47.1.


                                        2
records for the Texas Department of Criminal Justice, Parole Division.          The

certified paperwork related to Slaughter’s conviction in cause number F44784

showed that on December 21, 2010, his community supervision was revoked and

he was sentenced to ten years’ confinement, subject to boot camp.

Subsequently, on January 20, 2012, Slaughter’s conviction in cause number

F44784 became final when the trial court revoked his community supervision and

sentenced him to six years’ confinement in prison. Slaughter stated that he had

no objection to the admission of these records and stipulated that the records

were in fact “the Defendant’s records relating to the Defendant.”

                         III. THE CONTENTIONS ON APPEAL

      Slaughter argues that the evidence is insufficient to support the finding that

the repeat-offender allegation is true, that a fatal variance exists between the

repeat-offender notice set forth in the indictment and the evidence offered at trial,

and that the State pleaded and proved a non-final conviction for enhancement

purposes. According to Slaughter,

      [t]he State failed to prove Slaughter was convicted of the offense
      alleged in the repeat offender notice. The State pleaded in the
      repeat offender notice that Slaughter was convicted on December
      21, 2010 but proved that he was convicted of this offense on
      September 10, 2010 and sent to TDCJ first on December 21, 2010
      and again on January 20, 2012. Because Slaughter was only placed
      on probation on September 10, 2010 and committed to the Boot
      Camp program on December 21, 2010, his conviction did not
      become final for enhancement purposes until he was revoked on
      January 20, 2012. This variance is fatal to the enhancement.




                                         3
      Although the State attempted to amend the repeat-offender notice by

changing the date on which Slaughter was finally convicted from December 21,

2010, to January 20, 2012, the trial court ultimately denied the State’s motion.

The State argues on appeal that, “[r]egardless [of] the actual date that the

appellant’s prior conviction became final (December 21, 2010 or January 20,

2012), the evidence shows that the appellant had a prior third-degree felony

conviction when he committed this offense on January 29, 2014.” Thus, the

State asserts that the evidence is sufficient to support the trial court’s finding that

the repeat-offender notice was true and also that any variance between the

repeat-offender notice set forth in the indictment and the evidence presented at

trial was not material or fatal, including the date the prior conviction became final.

                 IV. THE LAW CONCERNING ENHANCEMENTS

      Concerning enhancement provisions, “[e]videntiary sufficiency is separate

from allegations and notice.” Roberson v. State, 420 S.W.3d 832, 840 (Tex.

Crim. App. 2013). In a challenge to the sufficiency of the evidence to support a

finding of true to enhancement allegations, we apply the established legal

sufficiency standard of review; we examine all the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v.

State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010). To establish that a

defendant has been convicted of a prior offense, the State must prove beyond a


                                          4
reasonable doubt that (1) a conviction exists and (2) the defendant is linked to

that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).

No specific document or mode of proof is required to prove these two elements.

Id. Although evidence of a certified copy of a final judgment and sentence may

be a preferred and convenient means, the State may prove both of these

elements in a number of different, unorthodox ways, including (1) the defendant's

admission or stipulation, (2) testimony by a person who was present when the

person was convicted of the specified crime and can identify the defendant as

that person, or (3) documentary proof (such as a judgment) that contains

sufficient information to establish both the existence of a prior conviction and the

defendant's identity as the person convicted. Id. at 921–22. The factfinder looks

at the totality of the evidence to determine whether the State proved the prior

conviction beyond a reasonable doubt. Orsag v. State, 312 S.W.3d 105, 116

(Tex. App.––Houston [14th Dist.] 2010, pet. ref d).

      When the State alleges an enhancement provision in the indictment and a

discrepancy exists between the indictment’s allegation and the proof at trial, a

variance exists, and the evidentiary sufficiency of the proof of the enhancement

allegation is measured by the hypothetically correct jury charge.       Gollihar v.

State, 46 S.W.3d 243, 252–53 (Tex. Crim. App. 2001); Young v. State, 14

S.W.3d 748, 750 (Tex. Crim. App. 2000); Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997).       A hypothetically correct jury charge is one that

accurately sets out the law, is authorized by the indictment, does not


                                         5
unnecessarily increase the state's burden of proof or unnecessarily restrict the

State's theories of liability, and adequately describes the particular offense for

which the defendant was tried. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim.

App. 2011); Young, 14 S.W.3d at 750; Malik, 953 S.W.2d at 240.

      Allegations   of   prior   convictions   for   the   purpose   of   punishment

enhancement give pretrial notice to a defendant that the State intends to seek

greater punishment and allow a defendant to prepare a defense.             See, e.g.,

Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006); Brooks v. State,

957 S.W.2d 30, 33 (Tex. Crim. App. 1997).                  Because the purpose of

enhancement paragraphs is to provide notice, “‘it is not necessary to allege prior

convictions for the purpose of enhancement with the same particularity which

must be used in charging on the primary offense.’” Williams v. State, 980 S.W.2d

222, 226 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd) (quoting Freda v.

State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986)). For example, the date on

which a prior conviction became final need not be alleged. Hollins v. State, 571

S.W.2d 873, 876 n.1 (Tex. Crim. App. 1978). Nor is it necessary to allege the

sequence of the prior convictions. See Jingles v. State, 752 S.W.2d 126, 129

(Tex. App.—Houston [14th Dist.] 1987, pet. ref'd).          Rather, the notice must

enable the accused “to find the record and make preparation for a trial of the

question whether he is the convict named therein.” Brown v. State, 636 S.W.2d

867, 868 (Tex. App.—Fort Worth 1982, no pet.).




                                          6
      Consequently, a variance between the wording of an indictment and the

evidence presented at trial is fatal only if it is material and prejudices the

defendant's substantial rights. Gollihar, 46 S.W.3d at 257. When reviewing such

a variance, we must determine whether the indictment, as written, informed the

defendant of the charge against him sufficiently to allow him to prepare an

adequate defense at trial. Id.; Derichsweiler v. State, 359 S.W.3d 342, 350 (Tex.

App.—Fort Worth 2012), rev’d on other grounds, 348 S.W.3d 906 (Tex. Crim.

App. 2011).

                    V. APPLICATION OF THE LAW TO THE FACTS

      We address together Slaughter’s three-pronged attack (insufficient

evidence, fatal variance, and pleading and proving a non-final conviction) on the

trial court’s finding of true to the repeat-offender notice.       Concerning the

sufficiency of the evidence in light of the date variance between the indictment

and the evidence, under a hypothetically correct jury charge, the State must

prove that a prior non-state jail felony conviction exists and that the defendant is

linked to that conviction. See Tex. Penal Code Ann. § 12.42(a); Flowers, 220

S.W.3d at 921. Slaughter’s prior conviction was a third-degree felony, and he

stipulated that it was his prior conviction, satisfying the requisite link.    See

Flowers, 220 S.W.3d at 921. The admitted prior judgment in cause number

F44784 contained sufficient information to establish both the existence of the

prior conviction and that Slaughter was the person convicted. See id. at 921–22;

see also Williams v. State, 356 S.W.3d 508, 517 (Tex. App.—Texarkana 2011,


                                         7
pet. ref’d) (“The variance in the date . . . is not material and, therefore, need not

be included in the hypothetically correct jury charge. Under the hypothetically

correct jury charge, the evidence is sufficient to support the jury’s conclusion that

the enhancement was true.”).

      Slaughter nonetheless claims that because the State pleaded the incorrect

date, it failed to prove that the prior conviction was final. But a copy of the final

judgment in cause number F44784, reflecting the finality of the conviction, was

admitted during punishment.       Regardless of the date alleged in the repeat-

offender notice, the proof proffered to the trial court, viewed in the light most

favorable to the trial court’s ruling, supports its finding that Slaughter had a prior

final conviction of a felony other than a state jail felony. See Tex. Penal Code

Ann. 12.42(a); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d

at 894–95.

      And finally, there is no evidence Slaughter was surprised because of the

incorrect date in the indictment allegation. In fact, three days before punishment,

the State attempted to amend the indictment to reflect the correct date. During

punishment argument, defense counsel directed the trial court’s attention to the

incorrect date and stated what the correct date for the prior conviction was. The

enhancement allegation provided the correct cause number, trial court number,

and county of the prior conviction. The incorrect date would not have prevented

Slaughter from finding the record and presenting a defense. Simmons v. State,

288 S.W.3d 72, 80 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (“A variance


                                          8
in dates of conviction is not fatal when there is no surprise or prejudice to the

defendant.”); Mims v. State, No. 06-09-00160-CR, 2010 WL 780176, at *4 (Tex.

App.—Texarkana Mar. 9, 2010, no pet.) (mem. op., not designated for

publication) (“The only variance was in the date of conviction. . . . The variance

did not result in Mims’ inability to know what the charges against him were so

that he was unable to prepare a defense.”); Benton v. State, 770 S.W.2d 946,

947–48 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d) (“[T]he discrepancy

between the date in the allegation and the date in the State’s proof is not fatal.”);

Davis v. State, 684 S.W.2d 201, 210 (Tex. App.—Houston [1st Dist.] 1984, pet.

ref’d) (“The indictment’s incorrect allegation of the date of final conviction for the

prior offense would not have prevented the appellant from finding the record of it

and presenting a defense.”). Because the date variance here is not material and

did not prejudice Slaughter’s substantial rights, it is not fatal. See Gollihar, 46

S.W.3d at 257.

      We overrule Slaughter’s issue.

                                  VI. CONCLUSION

      Having overruled Slaughter’s issue on appeal, we affirm the trial court’s

judgment.


                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.



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

DELIVERED: June 25, 2015




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