                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-292-CR


BENNIE JOE HOWE                                                   APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

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

            FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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

                           MEMORANDUM OPINION 1

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

      Appellant Bennie Joe Howe appeals from his conviction and life sentence

for aggravated sexual assault. In one issue, he argues that the State failed to

provide adequate notice of its intent to seek enhanced punishment under penal

code section 12.42(c). We affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                                    Background

        The facts of the offense are not relevant to this appeal. The grand jury

indicted Appellant for two counts of aggravated sexual assault. The indictment

also alleged the following enhancement paragraph:

        And the Grand Jury aforesaid do further present that prior to the
        commission of the aforesaid primary offense by [Appellant], to-wit:
        on the 10th day of August, A.D. 1995, in the 78th District Court
        of Wichita County, Texas, in Cause No. 32,274-B on the docket of
        said court, [Appellant] was duly and legally convicted in the said
        last named court of a felony, to-wit: INDECENCY WITH A CHILD,
        . . . and said conviction was a final conviction and was a conviction
        for an offense committed by [Appellant] prior to the commission of
        the primary offense hereinbefore charged against him.

Eight months later, Appellant pleaded not guilty to both counts of the primary

offense. Immediately after he pleaded not guilty and before voir dire, his trial

counsel had him take the stand, and the following colloquy occurred between

them:

              [DEFENSE COUNSEL]: Bennie, I have received an offer from
        the State in this case which is 30 years --

              THE DEFENDANT: I wouldn’t take two years. I’m not guilty.

              THE COURT: Okay. Hang on just a minute.

              [DEFENSE COUNSEL]: Why don’t you let me finish my
        question. I have received an offer from the State for 30 years in
        TDC for this offense. I understand you wouldn’t plead for two
        years on this offense, but you do understand that we are dealing
        with a first-degree felony and that the potential punishment in this
        case would be 15 years to life; is that correct?

                                         2
      THE DEFENDANT: Yes, sir.

      [DEFENSE COUNSEL]: And is it your desire to expressly reject
the State’s offer?

      THE DEFENDANT: Yes, it is.

      ....

      [PROSECUTOR]: . . . I think [defense counsel] is incorrect on
the range of punishment. If the enhancement paragraph is found
true by the jury, or since they elected the jury, it’s going to be an
automatic life sentence. It’s not going to be 15 to 99 or life.

       [DEFENSE COUNSEL]: If I could speak to [the prosecutor] for
just a second.

      THE COURT: Off the record.

      (Discussion off the record.)

      ....

      [DEFENSE COUNSEL]: Bennie, you understand essentially
that what [the prosecutor’s] position is, is that in the event you’re
convicted of this offense --

       THE DEFENDANT: Sure, give me the death penalty. I don’t
care. If you make me guilty I want the death penalty, yes, not life
in prison but the death penalty. Thank you. That’s all I have to
say.

       [DEFENSE COUNSEL]: And I appreciate that. Allow me to
finish my question, if you please. The question for you is this. The
offer is 30 years and --

       THE DEFENDANT: I want the death penalty if I’m found
guilty. I don’t want a life sentence. I don’t want 30 years. I don’t


                                 3
      want two years. I am guilty -- if you’re going to find me guilty,
      give me the death penalty. That’s all I have to say, Mr. --

            ....

            [DEFENSE COUNSEL]: Recognizing that there is a better than
      even chance -- recognizing that the only solution to this case in the
      event of a conviction is that you receive the life in prison, is it still
      your desire to reject the State’s offer for 30 years in the
      penitentiary?

            THE DEFENDANT: Well, sure.

      The jury found Appellant guilty of both counts. Appellant pleaded true

to the enhancement paragraph—after his counsel advised him on the record

that if he pleaded true, the trial court would instruct the jury to assess

punishment at confinement for life. The trial court instructed the jury to assess

punishment at confinement for life on both counts, and the jury did as

instructed. The trial court sentenced Appellant accordingly, and this appeal

followed.

                                    Discussion

      In his sole issue, Appellant argues that the indictment’s enhancement

paragraph did not adequately notify him of the State’s intent to seek life

sentences, thereby depriving him of his right to due process. He contends that

“[t]he enhancement paragraph in the indictment was [at] best vague, if not

confusing, regarding the intentions of the State.”


                                         4
      The purpose of an enhancement allegation is to provide the accused with

notice of the prior convictions relied upon by the State. Coleman v. State, 577

S.W.2d 486, 488 (Tex. Crim. App. [Panel Op.] 1979). The prior convictions

used as enhancements must be pleaded in some form and are often contained

in the indictment.    Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App.

1997).

      The statutory provisions governing enhancement of a felony offense with

a defendant’s prior convictions vary depending on both the degree of the

offense to be enhanced and the nature of the enhancing offense. T EX. P ENAL

C ODE A NN. § 12.42 (Vernon 2003 & Supp. 2007). Section 12.42(c) provides

as follows:

      (1) If it is shown on the trial of a first-degree felony that the
      defendant has been once before convicted of a felony, on
      conviction he shall be punished by imprisonment in the Texas
      Department of Criminal Justice for life, or for any term of not more
      than 99 years or less than 15 years. In addition to imprisonment,
      an individual may be punished by a fine not to exceed $10,000.

      (2) Notwithstanding Subdivision (1), a defendant shall be punished
      by imprisonment in the Texas Department of Criminal Justice for
      life if:

              (A) the defendant is convicted of an offense:

                   (i) under Section 21.11(a)(1), 22.021, or 22.011,
                   Penal Code; . . . and




                                        5
            (B) the defendant has been previously convicted of an
            offense:

            ....

                   (ii) under Section 21.02, 21.11, 22.011, 22.021, or
                   25.02, Penal Code . . . .

Id. §12.42(c).

      The indictment alleged two counts of aggravated sexual assault.

Aggravated sexual assault is an offense under penal code section 22.021. Id.

§ 22.021 (Vernon Supp. 2007). The indictment’s enhancement paragraph

alleged a prior conviction for indecency with a child, which is an offense under

penal code section 21.11.      Id. § 21.11 (Vernon 2003).        Thus, section

12.42(c)(2) applied, and the only possible outcome of a finding of guilty to the

primary offenses and a finding of true to the enhancement allegation was a

mandatory life sentence.     See id. § 12.42(c)(2).     The indictment left no

question as to the State’s intent regarding punishment; indeed, the State’s

intent is not relevant because section 12.42(c) mandates a life sentence under

the circumstances. There was never the possibility of a sentence of fifteen to

ninety-nine years or life under section 12.42(c)(1) because that subsection

simply did not apply to the indictment’s allegations.

      The is not a case of the State failing to provide adequate notice of the

prior conviction to be used for enhancement. It is not a case—as Appellant

                                       6
contends— of the State failing to provide adequate notice of which of two

alternative punishments it intended to seek because there was no alternative

punishment possible. It is, apparently, a case of Appellant’s trial counsel failing

to grasp the significance of the indictment’s allegations in terms of punishment

until the prosecutor explained it to him. However, the indictment, when read

in conjunction with section 12.42(c), contained all of the information necessary

to apprise Appellant of the punishment he faced if the jury found him guilty and

found the enhancement allegation to be true. And even after the prosecutor

explained the indictment’s ramifications to Appellant’s counsel with Appellant

present, and even after Appellant’s counsel in turn explained them to Appellant,

Appellant emphatically rejected the State’s plea offer.

      We therefore overrule Appellant’s sole issue and affirm the trial court’s

judgment.

                                            PER CURIAM

PANEL F:     GARDNER, DAUPHINOT, and HOLMAN, JJ.

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

DELIVERED: May 1, 2008




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