                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NO. 2-07-167-CR


CAMERON RAY BYRD                                                APPELLANT

                                      V.

THE STATE OF TEXAS                                                    STATE

                                  ------------

         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                  ------------

                                 OPINION

                                  ------------

                               I. INTRODUCTION

     Appellant Cameron Ray Byrd entered open pleas of guilty to the offenses

of driving while intoxicated subsequent offense, evading arrest or detention

with a motor vehicle, and unauthorized use of a motor vehicle. Each count was

enhanced to a second degree felony by prior convictions, to which Byrd pled

true, and by an affirmative finding of the use of a deadly weapon, an

automobile. The jury assessed punishment at the maximum of twenty years’
confinement on each count, and the trial court sentenced Byrd accordingly,

with the sentences to run concurrently. Byrd complains on appeal that he was

denied due process because the State did not provide him with sufficient,

timely, and proper written notice of its intent to seek a deadly weapon finding.

We will affirm.

                                 II. B ACKGROUND

      On August 19, 2006, Byrd stole a 1995 Mercury Cougar from the parking

lot of a Sonic drive-in restaurant in Hood County, Texas. A witness saw Byrd

recklessly drive away in the car and immediately called 911. Byrd fled from the

responding police officers, resulting in a police chase through multiple cities and

at speeds up to 115 miles per hour. Law enforcement officers laid spike strips

in two separate locations in an attempt to end the dangerous car chase. Byrd

ran over both spike strips but continued driving for approximately three more

miles before stopping the car. Byrd stopped the car in a mobile home park and

fled on foot, hiding from the officers underneath a mobile home. The officers

found Byrd, pulled him out from underneath the mobile home, and made the

arrest. No one was injured during the chase.

      The indictment included enhancement paragraphs based on Byrd’s prior

convictions, but it did not allege that Byrd used a deadly weapon during the

commission of the charged offenses. On February 22, 2007, the State faxed

                                        2
to Byrd’s defense counsel a notice of intent to seek a deadly weapon finding.

On March 7, 2007, the State faxed a second letter to counsel, reminding him

of the notice of intent letter faxed on February 22. The State did not file either

letter with the trial court before trial commenced, nor did it specify in either

letter the exact nature of the alleged deadly weapon.1

      On March 19, 2007, during voir dire, the State addressed three times the

issue concerning the use of a car as a deadly weapon. After the jury was

sworn in, the trial court admonished Byrd on his guilty pleas and specifically

told Byrd that the State was seeking a deadly weapon finding. The trial court

asked Byrd if he understood that the State was seeking a deadly weapon

finding and the resulting ramifications, if proven.     Byrd responded that he

understood the admonishments and, with that knowledge, stated that he still

desired to plead guilty. The trial on punishment then commenced.

      At the conclusion of the first day of the punishment trial, counsel

objected to any evidence regarding a deadly weapon finding because, at that




      1
        … The first letter faxed to counsel on February 22, 2007, states in part:
“This letter serves as notice to you that the State intends to seek a deadly
weapon finding in the above-mentioned cause against your client.” The second
letter faxed to counsel on March 7, 2007, states in part: “The State will make
no offer on the above-mentioned case. Following please find the letter dated
February 22, 2007, wherein the State pulled the previous offer and gave deadly
weapon notice.”

                                        3
time, the State had not filed with the trial court a notice of intent to seek a

deadly weapon finding. Counsel also had caselaw prepared to submit to the

trial court on the notice issue. The State responded by asserting that it had

faxed counsel a notice of intent and sent a subsequent fax to counsel,

reminding him of the initial notice. The trial court overruled counsel’s objection

but agreed to look at counsel’s cases and revisit the issue if necessary.

      At the beginning of the second day of the punishment trial, the State filed

with the court a notice of intent to seek a deadly weapon finding, specifically

stating that the deadly weapon was the 1995 Mercury Cougar. The State

attached both letters that were faxed to counsel as exhibits to the notice of

intent. The trial court stated that it had read the cases provided by counsel on

the previous day and had also conducted additional research on the issue.

Based on its research, the trial court concluded that the State had given notice

to Byrd in “some form,” referencing the two faxed letters to counsel. Counsel

made no objection at that time to the filing of the notice of intent. Counsel did

object, however, at the close of the evidence, stating that the State had made

an untimely filing and that the faxed letters were not specific as to the nature

of the deadly weapon.      At no point did counsel request a continuance in

response to the deadly weapon allegation.




                                        4
      The trial court attached to the jury charge the deadly weapon special

issue, and the jury found that Byrd had used the vehicle as a deadly weapon

during the commission of the charged offenses. The jury assessed punishment

at twenty years’ confinement on each count in the indictment, and the trial

court sentenced Byrd accordingly.

            III. N OTICE OF INTENT TO S EEK A D EADLY W EAPON F INDING

      Byrd argues that he was deprived of his constitutional right to due

process and due course of law under the federal and Texas constitutions

because the State filed an untimely, improper, and insufficient notice of intent

to seek a deadly weapon finding. See U.S. C ONST amends. V, XIV; T EX. C ONST.

art. I, §§ 13, 19.

      A defendant is entitled to notice that the State will seek an affirmative

finding that a deadly weapon was used during the commission of the charged

crime. Brooks v. State, 847 S.W .2d 247, 248 (Tex. Crim. App. 1993); Ex

parte Patterson, 740 S.W.2d 766, 775 (Tex. Crim. App. 1987), overruled on

other grounds, Ex parte Beck, 769 S.W.2d 525, 528 (Tex. Crim. App. 1989).

This notice is firmly rooted in fundamental precepts of due process and due

course of law. Patterson, 740 S.W.2d at 774 n.7. A defendant has the right

to be informed, at a bare minimum, that a particular proceeding, over and above

the determination of guilt and sentencing, will occur, which may operate to

                                        5
further diminish the accused’s liberty interest. Id. The court of criminal appeals

has never held what constitutes timely notice in this context.         We note,

however, that the Court has recently held that the right to notice of the State’s

intent to use prior convictions as enhancements, similar to notice given for

deadly weapon allegations, is constitutionally based and that due process does

not require that notice of prior convictions be given before the trial on guilt

begins. See Villescas v. State, 189 S.W.3d 290, 293–294 (Tex. Crim. App.

2006) (stating that requiring notice to come before the trial on guilt ignores the

possibility that the trial court could take measures to cure the notice problem

by granting a continuance).

      Regarding the type of notice required to be given, the court of criminal

appeals has held that a count in the indictment containing a deadly weapon

allegation sufficed to give a defendant notice of the State’s intent to seek an

affirmative finding of the use of a deadly weapon.        Beck, 769 S.W.2d at

526–27. Shortly after Beck, the Court reaffirmed its decision in Patterson and

held that the State must plead its notice of intent to seek an affirmative finding

of the use of a deadly weapon. See Luken v. State, 780 S.W.2d 264, 266–67

(Tex. Crim. App. 1989). The Court then held that notice need not be contained

in the indictment; rather, a defendant is simply entitled to written notice in

some form that the use of a deadly weapon will be a fact issue at trial. Brooks,

                                        6
847 S.W.3d at 248; see also Ex parte Minott, 972 S.W.2d 760, 761 (Tex.

Crim. App. 1998) (citing Brooks and concluding that although he had not

received written notice of any kind and the indictment did not contain reference

to a deadly weapon, the defendant had received actual notice when he pled

guilty as part of a plea agreement that included an affirmative finding of a

deadly weapon); Sanders v. State, 963 S.W.2d 184, 188 (Tex. App.—Corpus

Christi 1998, pet. ref’d) (“[Notice] must be in writing and reasonably calculated

to inform the defendant [that] the use of a ‘deadly weapon will be a fact issue

at the time of prosecution.’”). In any event, the adequacy of constitutional

notice of the State’s intent to seek a deadly weapon finding depends largely on

the specific facts of a given case. Hocutt v. State, 927 S.W.2d 201, 203 (Tex.

App.—Fort Worth 1996, writ ref’d).

      In this case, it is undisputed that the State faxed and Byrd’s counsel

received two letters regarding the State’s notice of intent to seek a deadly

weapon finding, the first of which the State sent approximately one month in

advance of trial. Also, on the first day of trial, counsel had caselaw prepared

to submit to the trial court specifically addressing the issue of the requirement

that the notice of intent be filed with the trial court.    Further, Byrd twice

admitted to the trial court that he understood the State was alleging that he had

committed the offenses with the use of a deadly weapon.          Although Byrd

                                       7
argues that, based on the advice of his defense counsel, he “merely agreed”

with the trial court that the State intended to prove that he committed the

offenses with a deadly weapon because he believed that the State had failed

to properly file the notice, the record does not support this claim.

      This is not a case in which the defendant learned of the State’s intent to

seek a deadly weapon “only after all the evidence was in, both sides had

closed, and the charge was read to the jury.” See Patterson, 740 S.W.2d at

777. Defendants, like that in Patterson, are in effect “blindsided” because they

have “no prior indication that the nature of the weapon used was to be a

particular issue in the case.” See Whately v. State, 946 S.W.2d 73, 75–76

(Tex. Crim. App. 1997); Patterson, 740 S.W.2d at 777. But here, we cannot

say that Byrd was blindsided by the deadly weapon special issue in this case

because he had more than an “indication” of the State’s intent; he had written

notice that the State intended to seek a deadly weapon finding approximately

one month before trial. See Brooks, 847 S.W.3d at 248. And to satisfy the

pleading requirement, the State filed the notice with the trial court to support

the special issue submitted to the jury. See Luken, 780 S.W.2d at 266–67;

Patterson, 740 S.W.2d at 766–67.

      Byrd’s due process claim is also weakened by his failure to ask for a

continuance to relieve any surprise or prejudice. See Whatley, 946 S.W.2d at

                                       8
76–77; Nolasco v. State, 970 S.W.2d 194, 197 (Tex. App.—Dallas 1998, no

pet.).       Indeed, we find little merit in this due process claim when Byrd,

confronted with the issue of the deadly weapon allegation during the trial

court’s admonishments, could have, but did not, request a continuance.

Instead, he admitted that he understood the State was seeking a deadly

weapon finding because he knew that the notice, which he received twenty-

seven days earlier and on which he had prepared defense, was not filed. See

Whatley, 946 S.W.2d at 76–77; Nolasco, 970 S.W.2d at 197.

         In sum, under the facts of this case, the State’s notice faxed to Byrd on

February 22, 2007, gave Byrd adequate written notice of its intent to seek a

deadly weapon finding. And, Byrd’s failure to ask for a continuance defeats

any due process claim he might have had. See Nolasco, 970 S.W.2d at 197.

Given these factual circumstances, the timing of the formal filing on the second

day of trial did not violate Byrd’s right to due process.2


         2
        … We acknowledge the holding in a similar case, Randle v. State, in
which the court of appeals held that a notice letter prepared by the State two
days prior to trial and filed on the day of trial was insufficient notice to the
defendant of the State’s intent to seek a deadly weapon finding. See No. 01-
91-00793-CR, 1994 WL 168267 at *2 (Tex. App.—Houston [1st Dist] May 5,
1994, writ ref’d) (not designated for publication). Relying on the requirement
stated in Luken that the State must plead the notice, the court stated that
“[a]ssuming the May 6 letter was otherwise sufficient as a pleading, it was not
filed before the date trial commenced.” Id. (citing article 28.10(a) of the Texas
Code of Criminal Procedure, providing that, after notice and upon request, a

                                         9
      Byrd also claims that his due process rights were violated because the

State failed to adequately apprise him of the exact nature of the deadly weapon

allegation. Citing Hocutt, a prior decision from this court, Byrd contends that

because the State did not specify the nature of the deadly weapon in the faxed

notices, he reasonably believed that any enhanced punishment he might have

received was a result only of his prior convictions. See 927 S.W.2d at 203.

      In Hocutt, the defendant, charged with driving while intoxicated, caused

an accident with another vehicle, resulting in minor injuries to the passengers

of both vehicles. See id. at 202. The State faxed and filed notice letters three




defendant is allowed not less than ten days to respond to an amended
indictment or information).
       We first note that, unlike Randle, in which the State “prepared” a letter
two days prior to trial that might not have even reached the defendant by the
date of trial (an issue not addressed by the court), the State, in this case, sent
written notice via facsimile twenty-seven days before the start of trial. See id.
And, it is also undisputed that Byrd’s counsel received both notice letters.
Presumably, even if the State, in Randle, had actually filed the letter with the
trial court two days before trial, notice still might not have been timely. See
Hocutt, 927 S.W.2d at 202, 204 (holding that notice of intent to seek a deadly
weapon finding filed three days before trial was untimely). Secondly, we note
that notice of intent to seek a deadly weapon finding is not governed by article
28.10. See T EX. C ODE C RIM. P ROC. A NN. art. 28.10 (Vernon 2006). Notice of
a deadly weapon allegation, similar to notice of enhancements based on prior
convictions, which must also be pled, is based in the constitution, not the
statutes. See Villescas, 189 S.W.3d at 294; see also Patterson, 740 S.W.2d
at 774 n.7 (“[Notice of the State’s intent to seek a deadly weapon finding] is
that firmly rooted in fundamental precepts of due process and due course of
law.”).

                                       10
days before trial but did not specify the nature of the deadly weapon, the

automobile.   Id. at 203.   We held that the State’s notice was inadequate

because the State gave written notice only three days before trial, there were

no serious bodily injuries that resulted from the accident, a car is not a deadly

weapon per se, and the notice was not specific as to the nature of the deadly

weapon. See id. at 204. Like in Hocutt, there were no injuries resulting from

Byrd’s use of the vehicle, and the faxed notices did not specify the type of

deadly weapon involved. However, unlike in Hocutt, Byrd never requested a

continuance. See id. at 203. As held in Whately, when the defendant is not

blindsided by the deadly weapon allegation and the defendant fails to request

a continuance, there is no fundamental unfairness by failing to specify the type

of weapon involved. 946 S.W.2d at 75–76. Thus, because Byrd failed to

request a continuance and was not surprised or blindsided by the notice of

intent, we hold that Byrd’s claim that the he was prejudiced by the lack of

specificity in the notice must fail. See id.

      We do not hold as a general rule that notice formally filed by the State on

the second day of trial or lacking specificity as to the type of weapon used is

constitutionally adequate. Rather, we hold that Byrd’s due process rights were

not violated when he received written notice twenty-seven days before trial,

which the State eventually filed with the trial court; admitted that he

                                       11
understood that the State was seeking a deadly weapon finding; had a prepared

defense ready on the first day of trial concerning the issue of filing the notice

as a pleading; and failed to ask for a continuance at any time before or during

the trial. Accordingly, we overrule Byrd’s sole issue.3

                                IV. C ONCLUSION

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

judgment.




                                            DIXON W. HOLMAN
                                            JUSTICE

PANEL: CAYCE, C.J.; HOLMAN and WALKER, JJ.

CAYCE, C.J. and WALKER, J. concur without opinion.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 29, 2008




      3
        … We note that in Throneberry v. State we came to a different
conclusion when the State gave written notice to the defendant through an
informal letter over one year in advance of trial that it intended to use prior
convictions to enhance the defendant’s punishment. 109 S.W.3d 52, 59–60
(Tex. App.—Fort Worth 2003, no pet.). However, unlike here, the State in
Throneberry never filed the notice with the trial court as a pleading but instead
admitted the letter into evidence at the end of the guilt-innocence phase. See
id. at 59.

                                       12
