                          NUMBER 13-12-00776-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

MARCELLUS LEWIS BROWN,                                                 Appellant,

                                        v.

THE STATE OF TEXAS,                                                     Appellee.


                   On appeal from the 24th District Court
                        of Victoria County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza

                  Memorandum Opinion by Justice Garza
      A jury convicted appellant, Marcellus Lewis Brown, of engaging in organized

criminal activity by committing deadly conduct, a second-degree felony offense,

enhanced by a prior felony conviction to a first-degree offense. See TEX. PENAL CODE

ANN. § 12.42(b) (West Supp. 2011); id. § 22.05(b)(1), (2), (e) (West 2011); id. §
71.02(a)(1), (b) (West Supp. 2011).1 Appellant pleaded “true” to the enhancement for a

prior felony conviction. The jury assessed punishment at sixty years’ imprisonment and

a $10,000.00 fine.        By a single issue, appellant contends that he was provided

inadequate notice of the State’s intent to enhance his punishment with a prior

conviction. We affirm.

                                          I. BACKGROUND

       Evidence at trial showed that, in July 2011, appellant and several acquaintances

were involved in a fight at a party in Victoria, Texas. Appellant and his group later

returned to the scene armed with weapons and began firing. A neighbor, who was not

involved in the earlier fight, was fatally shot outside his home. Appellant was indicted

on August 5, 2011. The indictment did not contain an enhancement paragraph.

       On September 17, 2012, the date voir dire began, the State filed a notice of

intent to prove a prior felony conviction, which identified a prior felony conviction for

possession of a controlled substance. The notice announced the State’s intent to prove

the prior felony conviction “pursuant to Section 12.42(c)(1) [of the] Texas Penal Code.”

See id. § 12.42(c)(1) (providing that the punishment range for a first-degree felony

enhanced by a prior felony conviction is life imprisonment or any term between fifteen

and ninety-nine years plus a $10,000 fine). During voir dire, the prosecutor explained to

the venire that the punishment range for a first-degree felony (engaging in organized

criminal activity by committing murder), enhanced by a prior felony conviction, is fifteen


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           Appellant was indicted for the offenses of murder, engaging in organized criminal activity by
committing murder, engaging in organized criminal activity by committing deadly conduct, and two counts
of deadly conduct. The State abandoned counts 2, 4, and 5 (engaging in organized criminal activity by
committing murder and the two counts of deadly conduct). The jury found appellant not guilty of murder
but guilty of engaging in organized criminal activity by committing deadly conduct. See TEX. PENAL CODE
ANN. § 71.02(a)(1), (b) (West Supp. 2011); id. § 22.05(b)(1), (2), (e) (West 2011).

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to ninety-nine years or life. See id. He further explained that the punishment range for

engaging in organized criminal activity by committing deadly conduct, a second-degree

offense, enhanced by a prior felony conviction, is five to ninety-nine years or life. See

id. § 12.42(b). Finally, he explained that the punishment range for deadly conduct, a

third-degree offense, enhanced by a prior felony conviction, is two to twenty years and a

$10,000 fine. See id. § 12.42(a). In other words, the prosecutor accurately explained

how, if the State proved appellant had a prior felony conviction, the punishment range

would be enhanced for each of the offenses alleged in the indictment.

       At the close of voir dire, outside the presence of the jury, the prosecutor

acknowledged that the State filed its notice of intent to prove a prior felony conviction

that day, September 17. The prosecutor noted that appellant had elected to allow the

jury to impose punishment, but that if appellant wished to change that election, the State

was not opposed. Defense counsel argued that appellant had already been prejudiced

because the prosecutor had already tainted the jury pool by suggesting that appellant

had a prior criminal record. The following morning, outside the presence of the jury, the

trial court ruled that, based on its review of Villescas v. State, the State’s notice of intent

to prove a prior felony conviction was adequate. See 189 S.W.3d 290, 294 (Tex. Crim.

App. 2006). Defense counsel did not request a continuance or argue that he was

unprepared to defend against the prior conviction allegation. On September 24, 2012,

the jury found appellant guilty of engaging in organized criminal activity by committing

deadly conduct.

       The sentencing hearing began the following day, September 25, 2012. At the

beginning of the hearing, outside the presence of the jury, defense counsel again



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objected to the State being permitted to prove the prior felony conviction for

enhancement purposes due to “lack of notice.”         Defense counsel did not object on

grounds that the notice only referenced the State’s intent to prove a prior felony

conviction pursuant to section 12.42(c)(1) of the penal code (providing for enhancement

of a first-degree felony) and did not reference section 12.42(b) (providing for

enhancement of a second-degree felony). Again, defense counsel did not request a

continuance and stated that he expected appellant to plead “true” to the prior felony

conviction allegation. In the presence of the jury, the prosecutor read the allegation of

the prior felony conviction, and appellant pleaded “true” to the allegation.         Neither

appellant nor his counsel suggested that there was any defense to the State’s

enhancement allegation or that more time was needed to investigate the allegation.

The jury assessed punishment at sixty years’ imprisonment and a $10,000 fine.

       Appellant filed a motion for new trial, in which he alleged, in relevant part, that he

was prejudiced by the State’s failure to “timely provide notice” of its intent to seek

enhancement. The only prejudice that appellant identified was that he was unable to

voir dire the jury panel on the panel’s views regarding prior convictions or enhancement.

Appellant’s motion was not presented to the trial court and was overruled by operation

of law. See TEX. R. APP. P. 21.6, 21.8. 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. See Garza v. State, 383 S.W.3d 673, 675–76 (Tex. App.—Houston [14th Dist.

2012, no pet.). Proper notice of intent to enhance punishment must be given in a timely



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manner, but it need not be pled in the indictment itself to be considered proper notice,

so long as it is pled “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)). “In 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 v. State,

324 S.W.3d 568, 577 (Tex. Crim. App. 2010). When the accused has no defense to the

enhancement allegation and has not suggested the need for a continuance in order 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 531, 537

(Tex. Crim. App. 2013).

                                    III. DISCUSSION

      In determining whether appellant was provided sufficient notice of the State’s

intent to enhance punishment, we note that the record does not suggest that appellant’s

defense was in any way impaired by the timing of the State’s enhancement notice. Like

the defendant in Villescas, appellant had no defense to the enhancement allegation; he

pleaded “true” to the prior conviction and did not object to the introduction of the

judgment of the prior conviction. See id. at 295. He did not request a continuance or

suggest that one was necessary to prepare a defense. See id.; Pelache, 324 S.W.3d at

577; Ketchum, 199 S.W.3d at 593. After considering these facts and circumstances, we

conclude that appellant was given sufficient notice of the enhancement allegation. See

Villescas, 189 S.W.3d at 295.




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       By a sub-issue, appellant argues that, because the State’s notice referenced only

section 12.42(c)(1) of the penal code, which applies to enhancement of a first-degree

felony, it was inadequate to put him on notice that the State was also seeking to

enhance his second-degree felony conviction. See TEX. PENAL CODE ANN. § 12.42(b),

(c)(1). The State responds that: (1) appellant failed to preserve any error by failing to

specifically object based on the content of the State’s notice, rather than its timeliness;

(2) appellant cannot show that he was prejudicially surprised because during voir dire,

the prosecutor discussed how second and third-degree felonies could be enhanced by

proof of a prior felony conviction; and (3) notice of enhancement of a first-degree felony

is sufficient to provide notice of enhancement of all other felony offenses alleged in an

indictment. See Pelache, 324 S.W.3d at 577 (holding that providing notice of intent to

enhance an offense is sufficient to provide notice to enhance any lesser-included

offenses of that offense).

       We need not address the State’s substantive arguments, however, because we

agree that appellant failed to preserve any issue for review. At trial, appellant’s counsel

objected only to the timeliness of the State’s notice, arguing that appellant was

prejudiced by the prosecutor’s explanation to the jury pool regarding the effect of a prior

felony conviction. In his motion for new trial, appellant complained only of the State’s

“fail[ure] to timely provide notice” of its intent to seek enhancement. To preserve error

for appellate review, a party must present a timely objection to the trial court, state the

specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a); see Lovill

v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009). “The specificity requirement is

met if the complaint made at trial was clear enough to the trial judge so as to permit the



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trial judge to take corrective action when the complaint was made.” Lovill, 319 S.W.3d

at 691. Moreover, “[a] complaint will not be preserved if the legal basis of the complaint

raised on appeal varies from the complaint made at trial.”         Id. at 691–92.    Here,

appellant objected to the State’s notice of intent on grounds that it was untimely, but did

not object on grounds based on the notice’s content. The issue has therefore not been

preserved for our review. See id.

                                     IV. CONCLUSION

       We overrule appellant’s sole issue and affirm the trial court’s judgment.



                                                 DORI CONTRERAS GARZA
                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
24th day of October, 2013.




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