                                 NO. 07-10-0226-CR
                                 NO. 07-10-0227-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                   MARCH 30, 2011

                         ______________________________


                                  ISAAC JONES, JR.,

                                                             Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                        _______________________________

           FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NOS. 2008-419,678 & 2008-419,679; HON. BRADLEY S. UNDERWOOD, PRESIDING
                      ______________________________

                              Memorandum Opinion
                         ______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant Isaac Jones, Jr. appeals his conviction for four counts of aggravated

sexual assault of a child.    Through three issues, he contends the State provided

improper notice of its intent to use a prior conviction for enhancement purposes, and the

evidence is insufficient to support an award of attorney’s fees. We modify the judgment
in trial court cause number 2008-419,678 and affirm as modified, and affirm the

judgment in trial court cause number 2008-419,679.

                          Issue One – Notice of Enhancement

       In his first issue, appellant contends that proper notice of enhancement of his

punishment was not provided in cause number 2008-419,679, even though notice was

filed in cause number 2008-419,678 and contained both cause numbers. Therefore,

according to appellant, he is entitled to a new punishment hearing in cause number

2008-419,679. We overrule the issue.

       If the State intends to enhance a defendant's punishment through prior

convictions, it must give the defendant reasonable notice of that intent by some kind of

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

107 S.W.3d 96, 98 (Tex. App.–Texarkana 2003, no pet.). Yet, there is no statutory

requirement that the notice of enhancement be given at any specific time before trial.

Furthermore, the Court of Criminal Appeals in Villescas v. State, 189 S.W.3d 290 (Tex.

Crim. App. 2006) stated 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.   It then held that if “a defendant 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 the federal

constitution.” Id. at 294; see Callison v. State, 218 S.W.3d 822, 823-25 (Tex. App.–

Beaumont 2007, no pet.).

       In the case before us and prior to the commencement of the punishment hearing,

the following exchange occurred:



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MR. STANGL [defense counsel]: Judge, the State, previous to my
appointment on the case, had filed a Notice of Intent to Use a Prior
Conviction to Enhance the Classification and/or Range of Punishment in
the Indicted Offense. And it appears that that was filed of record in 2008-
419,678. I believe the Court had indicated the other day that you had
gone through the - - one of the files and couldn’t find one, and I think you
found it in the other one.

       You know, basically, Judge, I know that the copies that I pulled off
the Internet has both numbers written up top, but apparently was filed of
record in the highlighted case, which was 2008-419,678, and does not
appear to have been filed of record in 2008-419,679.

        So, therefore, Your Honor, we would just submit to the Court that
this prior - - this allegation of a prior conviction would not be available for
enhancement pursuant to 2008 - - or in the case number 2008-419,679,
because proper notice was never filed.

                                          *   *   *

MS. CROWLEY [State’s attorney]: Your Honor, this is a notice provision,
as the Court can see from the notice that was filed. The District Clerk’s
office requires us to highlight the appropriate cause number. And so what
appears to be blacked out is the highlighted mark on one of the cause
numbers. Both would have been filed. Why the other one is not in the
other file is something we need to take up with the district clerk.

        Both - - I mean it’s obviously both cause numbers are on the
motion. The highlighted one got into the right file. The other highlighted
one would have gotten into the other file, but they’re filed. You know, we
do it the way the District Clerk’s office wants us to.

        Counsel for the defense had adequate notice. Both cause numbers
were listed. Even though one was highlighted, both cause numbers were
listed on the State’s Notice of Intent to Use the Prior Conviction. And the
State’s position is it’s more than adequate to give that notice regardless of
whether the clerk’s office managed to get it in to the file or not, but that it
was done, and both cause numbers are on it.

THE COURT: Are you claiming surprise, Mr. Stangl?

MR. STANGL: I’m claiming lack of required notice, Judge.

THE COURT: Are you refusing to answer my question, Mr. Stangl?




                                      3
   MR. STANGL: No, Your Honor, I’m not claiming surprise.             I am - -
   however, I am claiming lack of adequate notice.

The trial court then observed that:

   [t]he original in the Court’s file in Cause No. 2008-419,678 is, in fact,
   highlighted in yellow, but it does bear both cause numbers. There
   appears to have been some clerical issue with getting the document with
   the Cause No. 2008-419,679 into the file in 2008-419,679. But clearly, Mr.
   Stangl, you’ve had notice technically or otherwise in Cause No.     2008-
   419,678 that the State intended to enhance the range of punishment in
   that case, correct?

In response to the trial court’s inquiry, the following transpired:

   MR. STANGL: Judge, I mean I will acknowledge that the file marked copy
   that I pulled off the computer bears both cause numbers. I will
   acknowledge that.

   THE COURT: Okay.

   MR. STANGL: My objection is merely that the required notice in the other
   case was not filed of record as required. I don’t know if it was a clerical
   error or if it was ever given to the District Clerk. I have no idea.

   THE COURT: Okay.

   MR. STANGL: So therein lies my objection I wasn’t given proper notice.
   I’m not going to say that - -

   THE COURT: I understand. I understand. The objection is overruled.

   From the foregoing we observe that appellant knew of the State’s intent to

enhance punishment in both causes long before trial began. And, even if the notice

in cause number 2008-419,679 was considered not to have been filed prior to trial,

appellant nonetheless received notice before the punishment phase began. At no

time did he allege surprise or that he had a defense to the use of the prior

conviction. Nor did he request a continuance. Therefore, the trial court did not err in

overruling his objection at trial.



                                           4
                      Issues Two and Three – Attorney’s Fees

      In his second and third issues, appellant contends the evidence is insufficient to

support an award of attorney’s fees and the amount of attorney’s fees in cause number

2008-419,678. The State concedes this to be error and agrees the award of attorney’s

fees should be vacated. We agree, sustain the issues and remove reference to the

award of attorney’s fees from the judgment in trial court cause number 2008-419,678.

See Mayer v. State, 274 S.W.3d 898, 902 (Tex. App.–Amarillo 2008), aff’d, 309 S.W.3d

552 (Tex. Crim. App. 2010) (modified the judgment to delete like order).

      Accordingly, the trial court’s judgment in cause number 2008-419,679 is affirmed

and the judgment in cause number 2008-419,678 is affirmed as modified.



                                        Per Curiam

Do not publish.




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