Opinion
05-23-00165-CR
06-20-2024
ANDREW EDWARD PAULSON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b) 230165F.U05
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F20-76553-T
Before Justices Smith, Miskel, and Breedlove
MEMORANDUM OPINION
MARICELA BREEDLOVE JUSTICE
A jury found appellant Andrew Edward Paulson guilty of murder and assessed his punishment at 48 years' imprisonment. See Tex. Penal Code Ann. § 19.02. In a single issue, appellant contends the trial court committed fundamental error by instructing the jury on an enhanced punishment range when the State failed to give timely notice of the enhancement allegation. In a cross-point, the State requests modification of the judgment to correctly reflect appellant's pleas and the jury's findings. We conclude the State gave timely notice of its intent to enhance the punishment range with a prior felony conviction, and the judgment should be modified as the State requests. Accordingly, we modify the trial court's judgment and affirm the judgment as modified.
Because appellant does not challenge his conviction for murder, we need not discuss the evidence offered to establish his guilt.
Appellant was indicted on February 24, 2021, for intentionally and knowingly causing the death of Osvaldo Gardunomontez "by shooting deceased with a firearm, a deadly weapon." The indictment also alleged that appellant intended to cause serious bodily injury to Gardunomontez by committing an act "clearly dangerous to human life, to-wit: by shooting deceased with a firearm, a deadly weapon," causing Gardunomontez's death. The indictment did not include any allegations of prior criminal offenses committed by appellant.
On October 31, 2022, the State filed a notice of its intent to enhance the punishment range using a prior felony conviction for aggravated robbery. On February 6, 2023, the case proceeded to a jury trial. The jury found appellant "guilty of murder, as charged in the indictment." The punishment phase of the trial followed, again before the jury. State's Exhibit 138, a stipulation of the 2014 aggravated robbery conviction described in the State's notice, was admitted into evidence without objection, and appellant pleaded true to the enhancement allegation. The jury returned a verdict finding the enhancement paragraph true beyond a reasonable doubt and assessing a sentence of 48 years' imprisonment.
A duplicate copy of the October 31, 2022 notice of intent to enhance the punishment range was filed immediately after trial. The record does not reflect why this duplicate filing was made. This appeal followed.
Appellant does not challenge the jury's verdict of guilt. In a single issue, appellant contends the trial court "committed fundamental and egregious charge error when the jury was instructed on the applicable punishment range of a first degree felony offense enhanced improperly and untimely with one prior felony conviction."
Standard of Review
We review jury charge error under a two-pronged test, by looking first to whether the charge is erroneous. Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim. App. 2022). Second, we ask whether appellant was harmed by the error. Id. Where there was a timely objection, appellant must show he suffered "some harm." Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)), and Tex. Code Crim. Proc. § 36.19). Where there was no timely objection, "appellant must show [he] suffered egregious harm, which we determine by considering the jury charge as a whole, the issues raised by the parties, the evidence at trial, and anything else in the record that informs our analysis." Id. (internal quotation omitted).
Notice of Enhancement Allegation
In support of his issue, appellant argues that he did not receive proper and timely notice of the enhancement allegations because they were not included in the indictment and approved by the trial court. He concedes that he was arraigned on the enhancement allegations and pleaded true, but argues that because the indictment was not "altered under the direction of the court to reflect the enhancement allegation," it was error to instruct the jury on the enhanced punishment range.
Appellant further argues that the State's notice of intent to enhance the punishment range was not timely because it was not filed until thirty minutes after the trial court received the jury's punishment verdict. He contends that because the notice of intent was not ruled on by the court or filed before the jury began its deliberations, the trial court erred by instructing the jury of the enhanced punishment range. Conceding that no objection was made at trial on this complaint, he argues that the trial court's error was "fundamentally erroneous and egregiously harmful." See Cyr, 665 S.W.3d at 556.
The record reflects, however, that the State filed a "Notice of the State's Intent to Enhance Punishment Range" more than three months prior to trial. The notice included the following information:
Prior to the commission of the instant offense, defendant Andrew Paulson was convicted of aggravated robbery in case number 219-80189-2014 on the docket of the 219th Judicial District Court in Collin County, Texas on July 25, 2014 and said conviction is a final conviction;
The State would show that said enhancement does not charge the defendant with an additional or different offense, nor does it prejudice the substantial rights of the defendant. This paragraph will enhance this case to a punishment range of 15 years as a minimum to a possible sentence of life imprisonment.
The file stamp bears a date of October 31, 2022, and the certificate of service provides that the notice was emailed to appellant's attorney on that date.
In addition, State's Exhibit 138, admitted without objection, is a "Stipulation of Prior Conviction," dated February 9, 2023, and signed by appellant, defense counsel, the assistant district attorney, and the trial judge. The stipulation provides that "the Defendant on trial here today is one and the same Person who was duly, finally and legally convicted in Cause Number 219-80189-2014 for the offense of aggravated robbery in the 219th Judicial District Court of Collin County, Texas on July 25, 2014."
Although "a defendant is entitled to notice of prior convictions to be used for enhancement," "enhancement allegations need not be included in an indictment." Brooks v. State, 957 S.W.2d 30, 32-33 (Tex. Crim. App. 1997). "Prior convictions used as enhancements must be pled in some form, but they need not be pled in the indictment-although it is permissible and perhaps preferable to do so." Id. at 34. In Brooks, the court concluded that the State's motion for leave to amend the indictment to include the enhancement paragraph, coupled with the trial court's order granting leave to amend the indictment, was sufficient to provide the defendant with notice, even though the indictment was not actually amended. See id. at 31, 33-34.
Accordingly, we consider whether appellant received adequate notice of the State's intent to enhance the punishment range with his prior conviction even though the indictment did not contain enhancement allegations.
Citing Sears v. State, 91 S.W.3d 451 (Tex. App.-Beaumont 2002, no pet.), appellant argues we must reverse the punishment sentence and remand the case to the trial court for a new punishment hearing. In Sears, however, the State did not file notice of intent to enhance the punishment range until the Friday before the trial's commencement on Monday. Id. at 453. Further, defense counsel objected, challenged the notice as insufficient under Brooks, and sought a continuance based on the notice. Id. at 454. The trial court overruled the objections and denied the continuance. Id. The court of appeals reversed, holding that notice was not given timely. Id. at 455. The court distinguished Brooks, noting among other matters that "ten days' notice is considered sufficient in a number of instances," but Sears was given "less than one full business day" to find the record of the alleged prior offense "and make preparation for a trial of the question whether he is the convict named therein." Id. (internal quotation omitted).
Citing Sears, this Court reversed the trial court's judgment on punishment in Fairrow v. State, 112 S.W.3d 288, 295 (Tex. App.-Dallas 2003, no pet.). We concluded that the State's "Notice of Extraneous Offenses" filed the Friday before the Monday jury trial date did not constitute a "pleading" as contemplated by Brooks and did not afford the appellant proper notice of intent to enhance punishment. Id. at 294. We did not "determine a certain time frame for timely notice," but we agreed with the Sears court "that notice is presumptively reasonable if given at least ten days before trial." Id. at 295.
In Barnes v. State, 152 S.W.3d 144, 146 (Tex. App.-Dallas 2004, no pet.), in contrast, we distinguished Fairrow and Sears where appellant received notice of intent to enhance punishment seven days before trial. Barnes objected to the notice of enhancement, but the record did not show that he presented "any argument or evidence of surprise or inadequate time to prepare to respond to the enhancement allegation." See id. Although Barnes argued on appeal that the notice of less than ten days could have affected his response to any plea bargain offer or his choice of judge or jury to assess punishment, the record did not contain any support for these contentions. Id. Accordingly, we concluded Barnes failed to show the trial court erred by overruling his objection to the notice of enhancement. Id.
In Flores v. State, we concluded that a notice containing "details about the offense of conviction, the trial cause number, the convicting court, and the date of conviction," given "over three months" before trial, was sufficient. No. 05-11-00051-CR, 2012 WL 2549864, at *4 (Tex. App.-Dallas July 3, 2012, pet. ref'd) (mem. op. on reh'g, not designated for publication). There, as here, the appellant entered a plea of true to the prior conviction alleged for enhancement, and the trial court instructed the jury to find the enhancement paragraph true. Id. And there, as here, the jury's sentence "was within the punishment range for the offense of conviction as enhanced." Id.; see also Smith v. State, No. 05-07-00819-CR, 2008 WL 2611373, at *2 (Tex. App.-Dallas July 3, 2008, no pet.) (not designated for publication) (distinguishing Fairrow where notice of intent to use prior convictions to enhance punishment was given "two and a half months in advance of trial," even though "the document did not specifically state which convictions the State intended to use to enhance punishment").
Appellant is correct that the State filed a notice of its intent to enhance the punishment range on the same date the jury rendered its verdict in the punishment phase of the trial. That notice, however, is identical to the notice filed three months earlier, and the certificate of service again reflects service on appellant's counsel on October 31, 2022. We conclude appellant received sufficient, timely notice of the State's intent to enhance the punishment range. We overrule appellant's issue.
2. Modification of the judgment
In a cross-point, the State requests modification of the judgment to reflect appellant's plea of not guilty, his plea of true to the enhancement paragraph, and the jury's finding of true on the enhancement paragraph. The record reflects that appellant entered pleas of "not guilty" to the offense and "guilty" to the enhancement allegation, and the jury found the enhancement allegation to be true. The judgment, however, reflects "guilty" as appellant's plea to the offense, "N/A" as appellant's plea to the enhancement paragraph, and "N/A" as the finding on the enhancement paragraph.
This Court has the power to correct and reform the trial court's judgment to make the record speak the truth when, as here, it has the necessary information to do so. Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we reform the judgment to reflect (1) appellant's "Not Guilty" plea to the offense, (2) appellant's "Guilty" plea to the enhancement paragraph, and (3) the jury's finding of "True" to the enhancement paragraph.
Conclusion
As modified, the trial court's judgment is affirmed.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect:
(1) Appellant's "Not Guilty" plea to the offense, (2) Appellant's "Guilty" plea to the enhancement paragraph, and (3) the jury's finding of "True" to the enhancement paragraph.
As MODIFIED, the judgment is AFFIRMED.