









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-07-00084-CR

______________________________



LEE CHARLES HAMILTON, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 102nd Judicial District Court

Bowie County, Texas

Trial Court No. 06-F-0088-102






Before Morriss, C.J., Moseley and Cornelius,* JJ.

Memorandum Opinion by Justice Cornelius


________________________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION


	A jury convicted Lee Charles Hamilton of possessing more than one gram but less than four
grams of cocaine.  His punishment, enhanced by two prior felony convictions, was set by the trial
court at life imprisonment.
	Hamilton raises four issues on appeal.  In these issues, he contends (1) the State failed to give
him proper and sufficient notice that it would use evidence of prior convictions to enhance the
punishment; (2) it was error to overrule Hamilton's motion to disqualify the trial judge; (3) the trial
court erred in overruling the defense's motion for continuance in order to secure the attendance of
necessary witnesses; and (4) the evidence is insufficient to prove that the contraband Hamilton was
convicted of possessing weighed more than one gram.  We overrule all these contentions and affirm
the judgment.
	We first address the contention that the State failed to give proper notice of its intention to
prove enhancements to the punishment.  If the State intends to use prior convictions to enhance the
punishment in a criminal case, it must give the defendant reasonable notice of its intention 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, 99 (Tex. App.--Texarkana 2003, no pet.).  There is no statute prescribing a particular
kind of notice or a particular time when the notice must be given.  Ten days before trial has been held
to be presumptively reasonable, but notice shorter than ten days has also been held to be reasonable,
depending on the circumstances of the case and the actions of the defendant and the State.  See
Richardson v. State, 170 S.W.3d 855 (Tex. App.--Texarkana 2005, pet. ref'd); Hackett v. State, 160
S.W.3d 588 (Tex. App.--Waco 2005, pet. ref'd); Splawn v. State, 160 S.W.3d 103 (Tex.
App.--Texarkana 2005, pet. ref'd); McNatt v. State, 152 S.W.3d 645 (Tex. App.--Texarkana 2004),
aff'd in part & rev'd in part on other grounds, 188 S.W.3d 198 (Tex. Crim. App. 2006); Barnes v.
State, 152 S.W.3d 144 (Tex. App.--Dallas 2004, no pet.).
	The trial here began on April 4, 2007.  A detailed notice of the State's intent to introduce
evidence  of  the  prior  convictions  was  served  by  courier  on  Hamilton's  counsel  of  record  on
February 22, 2007, according to the certificate of service signed by the assistant district attorney who
prosecuted  the  case  for  the  State,  but  the  notice  was  not  filed  in  the  record  until  later,  on
February 7, 2008.  Hamilton argues in his brief that there is no evidence in the record that his
attorney actually received the notice.  He posits that the rules for effecting service of a notice of
enhancements in criminal cases should be at least as effectual as those provided in the Texas Rules
of Civil Procedure for giving notice.  We agree.  But Rule 21a of the Texas Rules of Civil Procedure
provides that a certification by an attorney of record showing service of a notice shall be prima facie
evidence of the fact of service.  Tex. R. Civ. P. 21a.  A party or attorney contending that the notice
was not received has the burden to prove that the notice was not received.  A certificate of service
creates a presumption that the requisite notice was served, and in the absence of evidence to the
contrary, has the force of law.  Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987); Krchnok v.
Fulton, 759 S.W.2d 524 (Tex. App.--Amarillo 1988, writ denied).  Hamilton did not rebut the
presumption created by the certificate of service.  Thus, he received service of the intent to prove
enhancements on February 22, 2007, approximately forty days before the time the trial began.
	Additionally, the record here shows that, at a pretrial hearing held on March 5, 2007, one
month before trial, Hamilton was present when the State announced that it had sent a notice to the
defense that it would seek to enhance the punishment by prior convictions.  At the same hearing, the
trial court admonished Hamilton as to the prior convictions and Hamilton pleaded true to the
enhancement paragraphs and freely admitted that he was the person convicted.  In view of all these
facts, we hold that Hamilton cannot complain of the lack of proper, timely notice.  Harvey v. State,
611 S.W.2d 108, 111-12 (Tex. Crim. App. 1981); O'Dell v. State, 467 S.W.2d 444, 447 (Tex. Crim.
App. 1971); Denham v. State, 428 S.W.2d 814, 817 (Tex. Crim. App. 1968).
	We next address the contention that it was error to overrule Hamilton's motion to disqualify
the trial judge, the Honorable John Miller.  The basis of the claim of disqualification is the assertion
that Judge Miller, in the capacity of counsel for the State, had previously prosecuted Hamilton.  The
motion for disqualification simply stated that Judge Miller had previously served as counsel for the
State "in this matter."  The motion also stated that Judge Miller had "secured a conviction against
the Defendant which is being used to enhance the punishment range."
	The motion to disqualify the trial judge was properly overruled.  The applicable statute
provides that "No judge . . . shall sit in any case . . . where he has been of counsel for the State or the
accused."  Tex. Code Crim. Proc. Ann. art. 30.01 (Vernon 2006).  This statute applies only if the
trial judge has actively participated as counsel in the very case now before him.  Gamez v. State, 737
S.W.2d 315, 318-19 (Tex. Crim. App. 1987).  Judge Miller had not participated as counsel in the
case being tried here.  A trial judge is not disqualified from presiding over a trial when a new offense
is charged, Hawthorne v. State, 459 S.W.2d 826 (Tex. Crim. App. 1970), even though he personally
prosecuted the defendant on a prior felony conviction used by the State for enhancement purposes. 
Neverez v. State, 832 S.W.2d 82 (Tex. App.--Waco 1992, pet. ref'd); O'Dell v. State, 651 S.W.2d
48 (Tex. App.--Fort Worth 1983, pet. ref'd).
	We next consider the trial court's actions in overruling Hamilton's motion for continuance. 
The motion was filed on March 30, 2007, five days before trial was to begin, although the case had
been pending for more than two years.  The purpose of the motion was to gain time to secure the
presence of alleged witnesses  Cobie Davis, Lakeisha Bates, Amy Harriman, and Bridget Smith.  An
application for subpoena for these and other alleged witnesses was also filed on March 30, 2007. 
The motion for continuance was not sworn to, and the record shows that Hamilton was aware of the
existence of the alleged witnesses approximately two years before trial, but the subpoenas were not
requested for them until the day the motion for continuance was made.
	Motions for continuance in criminal trials must be sworn to.  Tex. Code Crim. Proc. Ann.
art. 29.08 (Vernon 2006).  Because the motion here was not sworn to, it presents nothing for review. 
Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Rodriguez v. State, 903 S.W.2d
405 (Tex. App.--Texarkana 1995, pet. ref'd).  In view of this fact and the fact that Hamilton knew
of the witnesses for nearly two years before filing the motion, the trial court did not abuse its
discretion in overruling the motion for continuance.
	Hamilton challenges the sufficiency of the evidence to prove that the weight of the cocaine
possessed was more than one gram.  As the State points out in its brief, Hamilton's challenge here
is really not to the sufficiency of the evidence, but to the credibility of the chemist's testimony that
the total weight of the cocaine found in five small bags was more than one gram.  During cross-examination, Hamilton's counsel elicited testimony from the chemist that she weighed all five of the
bags, including their contents.  Then, she weighed one empty bag, multiplied its empty weight by
five, and then subtracted the combined weights of the empty bags from the total weight of the five
loaded bags.  The total weight of the cocaine alone was 1.45 grams.  Hamilton's counsel suggested
to the chemist that the combined weight of the empty bags, when subtracted from the total weight,
would leave the total weight of the cocaine alone at less than one gram.  The chemist vigorously
disputed this suggestion.  She said the variability of the size of the bags was very slight, no empty
bag weighed more than 0.07 grams, and at the very most, their total weight could not bring the total
weight of the contraband alone to under one gram.  The jurors obviously believed the chemist's
testimony and accepted her calculations, which was their prerogative.  No error is shown.
	Hamilton also claims in his argument under this issue that the trial court erred in failing to
grant his request for a quantitative analysis.  This motion was filed less than five days before the trial
began, there was no evidence or claim that any foreign substance was contained with the cocaine,
and the weight of the empty baggies was established by the chemist's testimony.  The State is no
longer required to prove the amount of the controlled substance and the amount of adulterants and
dilutants.  The State must prove only that the aggregate of the controlled substance, including
adulterants and dilutants, if any, equals the minimum weight for the offense charged.  Melton v.
State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003).  In these circumstances, Hamilton was not
harmed.  We find no reversible error.
	For all of the reasons stated, we affirm the judgment.


						William J. Cornelius
						Justice*

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

Date Submitted:	March 6, 2008
Date Decided:		July 16, 2008




OPINION ON REHEARING 


	Lee Charles Hamilton has filed a motion for rehearing in which he presents two reasons why
he contends we erred in our original opinion.  First, he contends that he never pleaded true to the
enhancement allegations and he did not admit to the convictions alleged as enhancements.  He, thus,
argues that we were completely wrong in stating the contrary.  The record, however, proves
otherwise.
	It appears that we did misstate the date of one of the pretrial hearings, but our substantive
statements are correct and are borne out by the record.  At the hearing on March 5, 2007, the
following occurred:
		[STATE'S COUNSEL]:     We have simply given a letter notice, pursuant to
case law, seeking to increase punishment based on prior convictions.
 
		THE COURT:     All right.

	At the hearing on April 5, 2007, the following transpired:

		[STATE'S COUNSEL]:     Judge, we would require a plea of true or not true.
 
		THE COURT:     I understand.  I understand the objection made to the
enhancement portion, and the notice of enhancement is overruled.  So now I must
know how do you plead to the enhancement, true or untrue, sir?
 
		(LONG SILENT PAUSE)
 
		THE COURT:     Mrs. Collins, the record needs to reflect that counsel and
Mr. Hamilton are conferring.  What is your plea, sir, true or untrue?
 
		[DEFENDANT]:     True, your Honor.
 
		THE COURT:     I'm sorry?  True?
 
		[DEFENDANT]:     Yes.
 
		THE COURT:     All right, you enter that plea of true freely and voluntarily,
then.  Is that correct?
 
		[DEFENDANT]:     Yes.
 
		THE COURT:     And you are acknowledging and admitting that you are one
and the same person who previously has been convicted in the cases that were just
read to you out of the indictment, then.  Is that correct?
 
		[DEFENDANT]:     Yes, Sir.

	Second, Hamilton challenges our opinion because we held that he failed to rebut the
presumption that the State's notice of intent to enhance was personally served on his counsel.  He
asserts that he rebutted the presumption (1) by proving that the notice was directed to him at an
incorrect address, and (2) by arguing in his supplemental brief the rebuttal of the presumption of
actual service.  We disagree.  Even if the notice of intent to enhance gave an incorrect address for
Hamilton, the stated address is irrelevant if, as the certificate of service shows, the notice was
personally delivered to Hamilton's counsel.  Service by personal delivery is effective regardless of
the address shown on the notice, as long as the correct person is served.  And, statements in a
supplemental brief on appeal do not constitute evidence.  Rebuttal of a presumption of service must
be made by evidence introduced in the trial court, not by arguments made in an appellate brief.
	As to the claim that the return on the notice was not furnished, the record shows the
certificate of service by the assistant district attorney, which is sufficient to raise the presumption of
service.  See Tex. R. Civ. P. 21.



	We overrule the motion for rehearing.


							William J. Cornelius
							Justice

Date:	September 23, 2008

Do Not Publish
the opinion appears to presume that the "employee" definition is required to be met, and was met,
in that case, by the allegations brought against Price, who was undisputedly an "employee." 
Following the Texas Supreme Court's directive literally, however, the common law, rather than the
statutory definition of "employee" would be the applicable law, and the Smith court would be correct
in relying on El Paso Laundry Co. v. Gonzales, 36 S.W.2d 793 (Tex. Civ. App. 1931, writ dism'd),
to reach its result.  Under this theory, the Texas Supreme Court was also correct in Dillard, because
statutory "employee" is required under the motor vehicle or motor-driven equipment section of the
statute.  
