                                  NO. 07-08-0302-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                 AUGUST 24, 2009
                         ______________________________

                    CLIFTON WAYNE HARDEN, JR., APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 54,244-A; HONORABLE HAL MINER, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Clifton Wayne Harden, Jr., appeals his conviction for the offense of

possession of a controlled substance in an amount of less than one gram, enhanced by

one prior felony conviction, and the resulting sentence of eight years confinement in the

Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). We affirm.
                           Factual and Procedural Background


       Appellant was indicted for possession of a controlled substance in an amount of less

than one gram. Additionally, the indictment contained two enhancement paragraphs. The

first enhancement paragraph alleged, in relevant parts, that appellant had been previously

finally convicted of the felony offense of aggravated assault in Cause No. 31,597-B in the

181st District Court of Potter County, Texas, on the 9th day of November, 1992. The

second enhancement paragraph alleged that appellant had been previously convicted of

the felony offense of possession of a controlled substance in Cause No. 39,360-A in the

47th District Court of Potter County, Texas, on the 16th day of November, 1998. It was

further alleged that the second enhancement paragraph conviction was obtained before

the primary offense was committed but after the first enhancement paragraph conviction

had become final.


       Subsequently, appellant entered a plea of guilty to the offense without any

recommendation as to punishment. In connection with the plea proceedings, appellant

entered a plea of true to both the first and second enhancement paragraphs. The trial

court admonished appellant regarding his constitutional rights prior to accepting the plea.

The trial court also admonished appellant that the range of punishment for the offense, as

charged and enhanced by the indictment, was that of a second degree felony. As such,

appellant was admonished that the range of punishment was from two to 20 years

confinement in the ID-TDCJ. After the admonishment regarding the range of punishment,

appellant persisted in his plea of guilty averring to the trial court that he understood what



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he was doing and was entering the plea freely and voluntarily. The trial court accepted

appellant’s plea of guilty.


       After receiving the plea of guilty, the trial court then considered the issue of

punishment.       During the punishment hearing, appellant offered certified copies of

indictment and judgment in Cause No. 39,360-A which reflected that appellant was

originally charged with a state jail felony in that cause number. The state jail felony was

enhanced and appellant was sentenced pursuant to the enhanced punishment range.

However, appellant’s trial counsel argued that the conviction was for a state jail felony and,

as such, it could not be used to enhance punishment in the underlying offense to a second

degree felony. Rather, the second enhancement paragraph could only be used with

another state jail felony to enhance the underlying offense to a third degree felony. The

trial court agreed, but then held that the fact that the first felony enhancement involved an

affirmative finding of a deadly weapon allowed the underlying state jail felony to be

enhanced to a third degree felony and proceeded to sentence appellant to a term of

confinement of eight years in the ID-TDCJ.


       Through four issues, appellant appeals contending that the trial court committed

reversible error in: 1) sentencing appellant to more than two years in a State Jail Felony

facility because the State failed to give notice of intent to use a deadly weapon finding in

the first enhancement paragraph; 2) enhancing the punishment under provisions of section

12.35(c)(2)(B) of the Texas Penal Code1 because of a fatal variance between the



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           Further reference to the Texas Penal Code shall be by “section ___” or “§ ___”.

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allegations in the first enhancement paragraph of the indictment and the proof used to

enhance appellant’s punishment; 3) accepting appellant’s plea of guilty which, because of

the lack of notice of intent to use the deadly weapon finding, was not freely and voluntarily

made; and 4) failing to properly admonish appellant to the proper range of punishment.

Disagreeing with appellant’s contentions, we affirm the judgment of the trial court.


                                  Deadly Weapon Finding


       Appellant’s first three issues all center on the issue of whether or not the State’s first

enhancement paragraph gave sufficient notice of the State’s intent to use the affirmative

finding of a deadly weapon in the punishment of appellant. The record reflects that the

indictment gave the proper court, the proper cause number, date of conviction and offense

for which appellant was convicted, yet appellant contends this was not sufficient notice of

intent to rely upon the affirmative finding of a deadly weapon for purposes of enhancement

of punishment.


       Addressing the issue of notice to use the affirmative finding of a deadly weapon, we

again point out that appellant’s indictment states in the first enhancement paragraph

appellant’s offense, the court of conviction, the cause number of the case, and the date of

the prior conviction. Further, we note that the requirement for particularity in description

of a prior offense used for enhancement purposes is less than that required of an

indictment charging the primary offense. See Chavis v. State, 177 S.W.3d 308, 312

(Tex.App.–Houston [1st Dist.] 2005, pet. ref’d) (citing Freda v. State, 704 S.W.2d 41, 42

(Tex.Crim.App. 1986)). The purpose of the enhancement allegation is to provide appellant


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with notice of the prior conviction upon which the State relies. Id. The notice to be

provided is sufficient if it allows appellant to find the record and make preparation for trial

on the issue of whether he is the same person named therein. Id. As demonstrated in the

record, the notice given appellant in this matter provided more than enough information to

allow him to prepare for trial. Appellant cites this court to a number of cases in an attempt

to show that the indictment herein was not specific enough as to the question of the deadly

weapon finding. However, the cases cited by appellant to support the proposition that the

enhancement allegation at issue was faulty for failure to include notice of the affirmative

finding of a deadly weapon are not enhancement cases, rather each case is dealing with

the notice issue regarding an affirmative finding in the indictment for the primary charge.

See Luken v. State, 780 S.W.2d 264, 265 (Tex.Crim.App. 1989); Narron v. State, 835

S.W.2d 642, 643 (Tex.Crim.App. 1992); Grettenberg v. State, 790 S.W.2d 613, 614

(Tex.Crim.App. 1990).      These cases are not supportive of appellant’s proposition.

Accordingly, appellant’s first issue is overruled.


       Appellant’s next issue contends that there was a fatal variance between

enhancement paragraph and the proof received at trial and used to enhance appellant’s

punishment. However, to accept appellant’s position we would first have to agree that

appellant had no notice of the affirmative finding of a deadly weapon contained in the first

enhancement paragraph. For reasons we have explained above, we do not agree with that

proposition. A variance occurs when there is a discrepancy between the allegations in the

charging instrument and the proof at trial.          Gollihar v. State, 46 S.W.3d 243, 246

(Tex.Crim.App. 2001). A material variance is fatal only if it operated to the defendant’s


                                              5
surprise or prejudiced his rights. See id. at 248. In the case before the court, appellant

had sufficient notice to prepare for trial because the indictment provided all the information

required to properly ascertain the exact nature of the previous judgment rendered against

him. In such a situation, we cannot say there is any variance, much less a material

variance. Finally, the essence of appellant’s variance claim is that the indictment stated

in the caption portion that the State was seeking to enhance the punishment under section

12.42(a), whereas, the proof was that the punishment was enhanced under section

12.35(c)(2)(B). According to appellant, this is the material variance. Appellant’s theory is

in error for at least two reasons. First, the erroneous entry complained of was in that

portion of the indictment known as the caption. See 41 George E. Dix and Robert O.

Dawson, Texas Practice § 20.62 (2nd ed. 2001). Since the erroneous entry was part of the

caption, it constitutes no part of the indictment and any error contained therein is harmless

unless appellant can show prejudice.         See Adams v. State, 222 S.W.3d 37, 53

(Tex.App.–Austin 2005, pet. ref’d); citing Thibodeaux v. State, 628 S.W.2d 485, 487-88

(Tex.App.–Texarkana 1982, no pet)). Appellant’s only attempt to show prejudice is an

effort to show that trial counsel was surprised by the State’s attempt to use the deadly

weapon finding. However, this alleged surprise is more accurately described as an

admission that trial counsel failed to either review the judgment in the prior conviction or

to understand the import of an affirmative finding of a deadly weapon. Because we have

previously determined that appellant was afforded all the notice the law requires, neither

of these theories will provide the prejudice referred to in Adams or Thibodeaux.

Accordingly, appellant’s second issue is overruled.



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       In his third issue, appellant complains that the lack of notice of the State’s intent to

use the deadly weapon finding for enhancement purposes resulted in the plea not being

either freely or voluntarily made. Again, as in the two previous issues, this question turns

on whether the first enhancement paragraph was sufficient to provide notice of the

affirmative finding of a deadly weapon. As was pointed out above, the first enhancement

paragraph provided appellant more than enough information to obtain all the relevant

documents regarding the aggravated assault conviction. As is reflected in the record, the

judgment of conviction for aggravated assault contained the affirmative finding of a deadly

weapon. Therefore, when appellant entered a plea of true to that offense, he entered it to

the affirmative finding of a deadly weapon. See Alexander v. State, 868 S.W.2d 356, 361-

62 (Tex.App.–Dallas 1993, no pet.) (holding that, even though the plea agreement did not

give the defendant notice that the State intended to obtain a deadly weapon finding in the

final judgment, the indictment did provide the defendant all the notice required and the

subsequent plea was not involuntarily made). As applied to our fact pattern, the first

enhancement paragraph gave appellant notice that there was a deadly weapon finding

contained in the final judgment. That being so, appellant had all the relevant information

required to enter a free and voluntary plea of true to the first enhancement paragraph.

Accordingly, appellant’s third issue is overruled.


                                      Admonishment


       Appellant’s fourth issue contends that his plea was not freely and voluntarily made

because the admonishment regarding the range of punishment was incorrect. The record

reflects that the trial court admonished appellant regarding a second degree felony range

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of punishment of not more than 20 years nor less than two years confinement in the ID-

TDCJ. See § 12.33. This admonishment was premised upon a plea of guilty to a state jail

felony enhanced by two prior felony convictions, which was how the case was indicted.

See § 12.42(a)(2). Appellant entered his plea of guilty to the primary offense and true to

both enhancement allegations. Subsequently, the trial court began receiving evidence on

the issue of punishment. It was only during the receipt of evidence during the punishment

phase of the plea of guilty that the issue to the second enhancement paragraph arose.

The record does not contain any further reference to a range of punishment nor does it

contain any request by the trial court as to whether or not appellant still desired to plead

guilty to the primary offense and true to the enhancements. Therefore, it appears that the

trial court gave an incorrect admonishment as to the possible range of punishment for the

offense on which the trial court eventually accepted a plea. The issue of the timing of

appellant’s objection to the use of the second enhancement paragraph requires us to

determine whether appellant has invited the error of which he now complains. The State

argues that is exactly the case, especially in light of the fact that appellant offered no

objection to the range of punishment as explained by the trial court prior to accepting the

plea. However, even if we find that the trial court gave an improper admonishment, there

is still the issue of harm to be considered. See Aguirre-Mata v. State, 125 S.W.3d 473,

473 (Tex.Crim.App. 2003) (holding that where the record failed to show admonishment of

the defendant as to the range of punishment as part of a plea of guilty, the resulting error

is judged under a harm analysis). When we view this matter in the light of Rule 44.2(b) of

the Texas Rules of Appellate Procedure, we see that appellant plead guilty without a

recommendation and the punishment he received was within the range he was

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admonished to, even though this was the incorrect range. TEX . R. APP. P. 44.2(b).

Appellant attempts to show harm by the naked assertion in his brief that had he known the

case was a third degree felony and not a second degree felony he might have requested

a jury on the issue of punishment. This naked assertion does not demonstrate harm. See

In re Gibauitch, 688 S.W.2d 868, 872 (Tex.Crim.App. 1985) (holding that the mere

assertion that a defendant might have requested a jury trial had the proper range of

punishment been given does not demonstrate harm for the purpose of establishing that the

plea was involuntary or unknowing, especially when there is no plea bargain). Appellant

has not demonstrated that the improper admonishment affected one of his substantial

rights. TEX . R. APP. P. 44.2(b). Having found appellant was not harmed, we overrule his

final issue.


                                        Conclusion


       Having overruled all of appellant’s issues, we affirm the judgment of the trial court.




                                          Mackey K. Hancock
                                               Justice


Pirtle, J. concurring.


Do not publish.




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