Wilson, James Greenwood v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Affirmed and Memorandum Opinion filed October 21, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00182-CR

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 JAMES GREENWOOD WILSON, Appellant

V.

 THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

 Brazoria County, Texas

Trial Court Cause No. 39,589

M E M O R A N D U M O P I N I O N

Appellant James Greenwood Wilson appeals from his conviction for driving while intoxicated. After finding him guilty of the charged offense, a jury found the allegations of the enhancement paragraphs to be true and assessed punishment at fifty years confinement. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm.

The indictment alleged that the primary offense occurred on February 25, 2000; that before the commission of the primary offense, appellant was convicted of felony driving while intoxicated on March 3, 1988; and that after the felony driving while intoxicated conviction was final, appellant was convicted of theft on August 22, 1980. Appellant correctly observes that he could not have been convicted of theft on August 22, 1980, after March 3, 1988, and the evidence showed that the theft conviction became final before the commission of the felony driving while intoxicated. Thus, the convictions were alleged in reverse order, a circumstance that appellant contends caused him to believe that he was facing only a single enhancement paragraph.

In his sole point of error, appellant claims that the trial court erred in allowing the jury to consider a 25 to life range of punishment because of a defect in the allegations of the enhancement paragraphs of the indictment. Appellant raised no objection to the enhancement paragraphs before trial. He thus waived any error. See Wills v. State, 867 S.W.2d 852, 857 58 (Tex. App. Houston [14th Dist.] 1993, pet. ref d) (defendant s failure to object before trial waived claim that second enhancement paragraph was defective); Muhammad v. State, 846 S.W.2d 432, 437 (Tex. App. Houston [14th Dist.] 1992, pet. ref d) (defendant s claim that second enhancement paragraph should have been quashed for failure to allege that he had been convicted of a felony was waived by his failure to object pretrial). Even if he had objected before trial, his point of error would be overruled for lack of merit, because the enhancement paragraphs provided adequate notice for him to litigate the issue of whether he was the same person named as the convict.

Texas Penal Code section 12.42(d) provides for a 25 to life range of punishment after conviction of a non state jail felony if the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final. The State must give a defendant notice in the indictment or other pleading that it will seek the enhanced range of punishment. Brooks v. State, 957 S.W.2d 30, 33 34 (Tex. Crim. App. 1997). The purpose of an enhancement allegation is to provide the accused with notice of the prior conviction relied upon by the State. Coleman v. State, 577 S.W.2d 486, 488 (Tex. Crim. App. 1979) (citing Bevins v. State, 422 S.W.2d 180 (Tex. Crim. App. 1967)).

Since the purpose of the enhancement paragraphs is to provide notice, [i]t is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offense. Williams v. State, 980 S.W.2d 222, 226 (Tex. App. Houston [14th Dist.] 1998, pet. ref d) (quoting Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986)). For example, the date on which the prior convictions became final need not be alleged. Hollins v. State, 571 S.W.2d 873, 876 n.1 (Tex. Crim. App. 1978). Nor is it necessary to allege the sequence of the prior convictions. See Jingles v. State, 752 S.W.2d 126, 129 (Tex. App. Houston [14th Dist.] 1987, pet. ref d). Rather, the notice must enable the accused to find the record and make preparation for a trial of the question whether he is the convict named therein. Brown v. State, 636 S.W.2d 867, 868 (Tex. App. Fort Worth 1982, no pet.).

The enhancement paragraphs here identified the prior convictions by cause number, court, county, and offense more than enough information for appellant to find the records and litigate his identity as the convict. Furthermore, his claim that the reversed order of the enhancement paragraphs caused him to believe that he was facing only a single enhancement paragraph seems disingenuous.

First, there were two paragraphs, not merely one, and they were entitled Enhancement Paragraphs. Second, both the trial judge and the prosecutor discussed the habitual range of punishment with the potential jurors with no objection from appellant. Third, the prosecutor pointed out during the punishment charge conference that the plea negotiations were conducted in light of the habitual range of punishment, and appellant did not contradict this observation. Given this record, appellant s claim that he believed he was facing only a single enhancement paragraph is without merit. Accordingly, appellant s sole point of error is overruled.

We affirm the judgment of the trial court.

/s/ Mary Lou Keel

Judge

Judgment rendered and Memorandum Opinion filed October 21, 2004.

Panel consists of Justices Fowler, Seymore, and Keel.[1]

Do Not Publish Tex. R. App. P. 47.2(b).

[1] The Honorable Mary Lou Keel, Judge of the 232nd District Court of Harris County, sitting by assignment pursuant to Tex. Gov t Code Ann. 74.003(h) (Vernon Supp. 2004).