                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-13-00456-CR

                                       Lowell Quincey GREEN,
                                              Appellant

                                                 v.
                                            The STATE of
                                         The STATE of Texas,
                                               Appellee

                    From the 54th Judicial District Court, McLennan County, Texas
                                    Trial Court No. 2012-709-C2
                              Honorable Matt Johnson, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: February 19, 2014

AFFIRMED

           The sole issue presented in this appeal is whether the State failed to provide proper notice

of the prior convictions that would be used to enhance Lowell Quincey Green’s sentence because

the State filed a motion to enhance as opposed to a notice of enhancement. Green contends that

the motion was insufficient because it was never ruled on by the trial court. We overrule Green’s

issue and affirm the trial court’s judgment.
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                                         BACKGROUND

       Before the commencement of Green’s trial, the State timely filed a document entitled

“Motion to Enhance Punishment Pursuant to Section 12.42 of the Texas Penal Code and Notice to

Defendant of Intent to Enhance Punishment,” which contained detailed information of the prior

convictions the State intended to use to enhance Green’s sentence. At the beginning of the

punishment phase of the trial, the prosecutor read the enhancement allegations to the jury. Defense

counsel did not object to the reading of these allegations, Green pled true to the allegations, and

evidence of the prior convictions was introduced into evidence without objection. In fact, defense

counsel stipulated to the introduction of the exhibits establishing the prior convictions. Finally,

no objection was made to the jury charge, which incorporated Green’s plea to the enhancement

allegations.

                                           DISCUSSION

       “[P]rior convictions used as enhancement must be pled in some form.” Brooks. v. State,

957 S.W.2d 30, 33-34 (Tex. Crim. App. 1997). As previously noted, Green contends the State

failed to provide proper notice of the prior convictions that it intended to use to enhance his

punishment because the enhancement allegations were pled in a motion, as opposed to a notice.

We overrule Green’s contention for three reasons.

       First, although Green contends no objection was necessary to preserve this complaint for

our review, we disagree. In discussing when an objection must be made regarding enhancement

allegations, the Texas Court of Criminal Appeals has stated that an objection must be made when

“a defendant [is] on notice that the proceedings may have gone amiss.” Marshall v. State, 185

S.W.3d 899, 903 (Tex. Crim. App. 2006). In this case, Green was on notice that the prior

convictions would be used to enhance his sentence when the enhancement allegations were read

at the beginning of the punishment phase of trial. By failing to object on the basis of improper
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notice, Green failed to preserve his complaint for appellate review. See TEX. R. APP. P. 33.1(a)

(requiring complaint to be preserved by a timely objection and ruling).

       In addition, we construe the document filed by the State as serving a dual purpose because

it served as both a “Motion to Enhance Punishment Pursuant to Section 12.42 of the Texas Penal

Code,” and as “Notice to Defendant of Intent to Enhance Punishment.” Even if we agreed with

Green that the document served only as a motion, the only law cited by Green in support of his

contention that such a motion was not “some form” for pleading enhancement allegations is case

law holding that “‘when a defendant relies on a motion for discovery to request notice pursuant to

Rule 404(b), it is incumbent upon him to secure a ruling on his motion in order to trigger the notice

requirements of that rule.” Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998) (quoting

Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993)). Rule 404(b), however, requires a

defendant to “timely request” the information from the State, TEX. R. EVID. 404(b), while

enhancement allegations are only required to be pled in “some form.” See Brooks, 957 S.W.2d at

33-34. We hold that a motion is “some form” for pleading enhancement allegations.

       Finally, lack of notice of the State’s intent to use prior convictions for enhancement

purposes “may result in harm, but lack of notice is not, in and of itself, harm.” Ex parte Parrott,

396 S.W.3d 531, 537 (Tex. Crim. App. 2013). “Rather, on direct appeal, a reviewing court must

determine whether inadequate notice ‘had an impact on the defendant’s ability to prepare a defense

and, if so, how great an impact it was.’” Id. (quoting Geter v. State, 779 S.W.2d 403, 407 (Tex.

Crim. App. 1989)). Improper notice of enhancement allegations does not result in harm “as long

as notice is sufficient to enable [the defendant] ‘to prepare a defense to them,’ and he is afforded

an opportunity to be heard.” Id. (quoting Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App.

2010)). In this case, Green did not plead any defense to the enhancement allegations and did not

request a continuance to prepare one. See Hackett v. State, 160 S.W.3d 588, 591 (Tex. App.—
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Waco 2005, pet. ref’d) (holding failure to request continuance rendered error in failure to provide

timely notice of enhancement allegations harmless). In fact, Green pled true to the allegations and

stipulated to the evidence in support of them. Accordingly, any error by the State in alleging the

prior convictions in the form of a motion, as opposed to in the form of a notice, was harmless.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Catherine Stone, Chief Justice


DO NOT PUBLISH




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