VACATE, AFFIRM, and REMAND; and Opinion Filed May 6, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00250-CR
                                      No. 05-18-00251-CR

                            CHRISTOPHER ROGERS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 204th Judicial District Court
                                   Dallas County, Texas
                     Trial Court Cause Nos. F16-550150-Q, F17-34648-Q

                             MEMORANDUM OPINION
                        Before Justices Brown, Schenck, and Pedersen, III
                                   Opinion by Justice Schenck
       This is a consolidated appeal of two cases in which appellant Christopher Rogers was

convicted of possession of methamphetamine and possession with intent to deliver

methamphetamine. In four issues, appellant asserts (1) the sentence imposed in his possession

case is beyond the applicable punishment range; (2) his indictment in the intent to deliver case was

not properly amended, precluding consideration of prior convictions for enhancement purposes;

and his (3) plea of true in the possession case and (4) plea of guilty in the intent to deliver case

were rendered involuntary because he was not properly admonished as to the correct ranges of

punishment. With respect to the possession case, we affirm appellant’s conviction, vacate his

sentence, and remand the case to the trial court for a new hearing on punishment. With respect to

the intent to deliver case, we affirm the trial court’s judgment. Because all issues are settled in
law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                                             BACKGROUND

           Appellant was charged by indictment with the third-degree felony offense of possession of

methamphetamine in an amount of 1 gram or more but less than 4 grams, enhanced by a prior

conviction. The offense was alleged to have occurred on May 26, 2016. On February 23, 2017,

the trial court granted the State’s motion to strike the enhancement paragraph and appellant entered

a negotiated plea of guilty. The trial court accepted appellant’s plea and, in accordance with the

terms of the plea agreement, placed appellant on four years’ deferred-adjudication probation. The

trial court imposed conditions of probation. On June 22, 2017, the State moved to revoke

appellant’s probation and to proceed with an adjudication alleging appellant had violated various

conditions of his probation.

           In addition, while appellant was on probation, he was charged by indictment with the first-

degree felony offense of possession with intent to deliver methamphetamine in an amount of 4

grams or more but less than 200 grams, enhanced by a prior conviction in 1988 for burglary of

habitation. The possession with intent to deliver offense was alleged to have occurred on

September 11, 2017. On January 18, 2018, the State gave appellant notice that it intended to

enhance the punishment range using two prior burglary of habitation convictions that occurred in

1992 and 1995.1 On January 19, 2018, the State moved to strike the enhancement for the 1988

burglary conviction and replace it with the 1992 and 1995 burglary convictions. The trial court

granted the State’s motion the same day.

           On January 29, 2018, appellant appeared before the trial court in both cases. In the

possession case, appellant pleaded true to the allegations in the State’s motion to adjudicate. In



     1
       The notice referenced appellants conviction of the felony offense of burglary of habitation in the 158th judicial district court of Denton
County in Cause Number F95-0184-B on the 17th day of October, 1995, and conviction of the felony offense of burglary of a habitation in the
204th district court of Dallas County in Cause Number F89-87924 on the 26th day of March, 1992.

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the intent to deliver case, appellant entered an open plea of guilty to the charged offense and

pleaded true to the two enhancement paragraphs.

       On February 28, 2018, appellant appeared before the trial court for punishment in the two

cases. In the possession case, the trial court accepted appellant’s plea of true to the allegations in

the State’s motion to adjudicate, found him guilty of the charged offense, revoked his probation,

and sentenced him to 20 years’ confinement. In the intent to deliver case, the trial court accepted

appellant’s open plea of guilty and his plea of true to the enhancement paragraphs, convicted him

of the charged offense, and sentenced him to 25 years’ confinement. The trial court ordered the

sentences to run concurrently.

                                            DISCUSSION

I.     Possession Case

       In his first issue, appellant contends the trial court improperly assessed punishment in the

possession case because the court imposed a sentence that was outside the applicable range. The

State agrees. When the trial court revoked appellant’s probation and adjudicated appellant’s guilt,

it assessed punishment as if the enhancement paragraph that was originally in the indictment was

still in effect. Had appellant’s possession offense been subject to enhanced punishment, this

offense would have been elevated to a second-degree felony for which the punishment range is 2

to 20 years. TEX. PENAL CODE ANN. § 12.33(a). But the State had previously struck the

enhancement paragraph and did so prior to appellant entering his plea of guilty and as part of the

plea agreement. Consequently, appellant’s offense was a third-degree felony and not a second-

degree felony. The range of punishment for a third-degree felony is 2 to 10 years’ confinement,

not 2 to 20 years. Id. § 12.34(a). Consequently, appellant’s 20 year sentence in the possession

case is outside the applicable range of punishment. A sentence that is outside the statutory range

of punishment for the offense is unauthorized by law and, thus, illegal. Mizell v. State, 119 S.W.3d


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804, 806 (Tex. Crim. App. 2003). Because appellant’s sentence in the possession case is illegal,

the trial court erred in assessing punishment in that case. We sustain appellant’s first issue.

II.    Intent to Deliver Case

       In his second and third issues, appellant contends the trial court did not effectively amend

the indictment to add the 1992 and 1995 burglary convictions as enhancement paragraphs and,

thus, he was erroneously admonished on the range of punishment making his plea of guilty to the

intent to deliver offense involuntary.

       Appellant relies on articles 28.10 and 28.11 of the code of criminal procedure to support

his claim the amendment to the indictment was ineffective. Articles 28.10 and 28.11 provide the

guidelines for amending an indictment or information. TEX. CODE CRIM. PROC. ANN. arts. 28.10,

28.11. More particularly, article 28.10 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.

       (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.

See id. 28.10. Article 28.11 provides, “[a]ll amendments of an indictment or information shall be

made with the leave of the court and under its direction. Id. art. 28.11.

       An enhancement allegation that is not part of the State’s case-in-chief is not part of the

“substance” of the indictment. Choice v. State, Nos. 05-11-00629-CR, 05-11-00630-CR, 2012

WL 3104676, at *3 (Tex. App.—Dallas July 31, 2012, pet. ref’d) (not designated for publication);

Thomas v. State, 286 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing


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Stautzenberger v. State, 232 S.W.3d 323, 327 (Tex. App.—Houston [14th Dist.] 2007, no pet.)).

Thus, articles 28.10 and 28.11 do not apply to the amendment of enhancement allegations in the

indictment. Choice, 2012 WL 3104676, at *3; Thomas, 286 S.W.3d at 114.

       While prior convictions used for enhancement purposes must be raised in some form, they

need not be pleaded in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).

When the State moves to amend the enhancement allegations and the trial court grants the motion,

the requisite notice has been provided. Davis v. State, No. 05-14-00378-CR, 2015 WL 1542211,

at *7 (Tex. App.—Dallas Apr. 2, 2015, no pet.) (mem. op., not designated for publication) (citing

Brooks, 957 S.W.2d at 34)).

       While the State was required to give appellant notice of its intent to enhance his

punishment, the State was not required to plead enhancement paragraphs in the indictment. The

State’s motion to amend the indictment to remove the 1988 burglary conviction and add the 1992

and 1995 burglary convictions, which the trial court granted, provided notice to appellant that the

State intended to use these convictions to enhance his punishment. See Davis, 2015 WL 1542211,

at *7. The trial court and the State were not required to return to and also physically amend the

indictment. Id. In addition to the foregoing, the State gave appellant notice of its intent to use his

1992 and 1995 burglary convictions to enhance punishment via its January 18, 2018 Notice of the

State’s Intent to Enhance Punishment Range. This notice also satisfied the requirement articulated

in Brooks that the enhancement had to be pleaded somewhere. See Villescas v. State, 189 S.W.3d

290, 291, 295 (Tex. Crim. App. 2006).

       Because articles 28.10 and 28.11 were not applicable, and because appellant was given

sufficient notice of the State’s intent to enhance his punishment with the 1992 and 1995 burglary

convictions, we overrule appellant’s second issue. We similarly overrule appellant’s third issue

because appellant was correctly admonished on the range of punishment that would apply should

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the two enhancement paragraphs be found true prior to entering his guilty plea to the intent to

deliver offense.2 See Luckett v. State, 394 S.W.3d 577, 581 (Tex. App.—Dallas 2012, no pet.).

III.       Admonishment

           In his fourth issue, appellant asserts his plea of true to the allegations in the revocation

proceeding concerning the possession offense was involuntary because he was not properly

admonished as to the correct range of punishment.

           A trial court is required to admonish a defendant of the range of punishment attached to an

offense before the defendant enters a plea of guilty or nolo contendere. See CRIM. PROC. art.

26.13(a)(1). The record before us reflects that appellant was admonished, in writing, before he

entered his plea of guilty to the possession offense, that the punishment range for the offense was

2 to 10 years’ confinement. That was the correct punishment range for this offense without

enhancement. PENAL § 12.34(a). Consequently, appellant was properly admonished before he

entered his guilty plea.

           While the trial court commented during the revocation proceeding that it believed the range

of punishment for the possession offense is from 2 to 20 years, it did so after it accepted appellant’s

plea of true to violations of the terms of his probation. Consequently, the trial court’s statements

could not have impacted appellant’s plea decision. Moreover, the admonishment requirements of

article 26.13 do not apply in revocation proceedings, where the trial court determines whether a

probation violation has occurred and, if so, proceeds to punishment. See Gutierrez v. State, 108

S.W.3d 304, 309 (Tex. Crim. App. 2003).

           Accordingly, we overrule appellant’s fourth issue.




     2
       The trial court admonished appellant that if he pleaded guilty to the possession with intent to deliver charge and true to the two enhancement
paragraphs the range of punishment would be 25 to 99 years or life confinement. This was the correct punishment range. See PENAL § 12.42(d).

                                                                       –6–
                                          CONCLUSION

       We affirm the trial court’s judgment in appellant’s intent to deliver case (Cause Number

F17-34648). We affirm the portion of the trial court’s judgment in the possession case (Cause

Number F16-55015) with respect to appellant’s conviction, we vacate the portion of the trial

court’s judgment in the possession case with respect to appellant’s sentence, and remand the

possession case to the trial court for a new punishment hearing.




                                                  /David J. Schenck/
                                                  DAVID J. SCHENCK
                                                  JUSTICE


DO NOT PUBLISH
TEX. R. APP. P. 47

180250F.U05




                                               –7–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 CHRISTOPHER ROGERS, Appellant                      On Appeal from the 204th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-00250-CR        V.                       Trial Court Cause No. F17-34648-Q.
                                                    Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                       Justices Brown and Pedersen, III
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 6th day of May, 2019.




                                              –8–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

 CHRISTOPHER ROGERS, Appellant                         On Appeal from the 204th Judicial District
                                                       Court, Dallas County, Texas
 No. 05-18-00251-CR           V.                       Trial Court Cause No. F16-550515-Q.
                                                       Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                          Justices Brown and Pedersen, III
                                                       participating.

        Based on the Court’s opinion of this date, the portion of the judgment of the trial court with
respect to Christopher Rogers’ conviction is AFFIRMED, the portion of the judgment with
respect to Christopher Rogers’ sentence is VACATED, and the cause REMANDED for a new
punishment hearing.


Judgment entered this 6th day of May, 2019.




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