LAMOIN GENE SMITH, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed July 3, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00819-CR
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LAMOIN GENE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F06-62058-SI
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Bridges
        Lamoin Gene Smith appeals his conviction for recklessly causing injury to a child. The trial court convicted appellant and sentenced him to fifteen years' confinement. In his sole issue, appellant argues the trial judge erred in allowing the State to utilize two prior convictions for the purpose of enhancing appellant's punishment range from a state jail felony to a second-degree felony. We affirm the trial court's judgment.
        On June 5, 2007, appellant pleaded not guilty to two indictments alleging robbery and injury to a child. Because the two cases arose from the same criminal episode, they were tried together. The trial court found appellant guilty of both, assessed a five hundred dollar fine plus court costs for the robbery, and sentenced him to fifteen years' confinement in the injury to a child case. At the punishment stage, a jury was waived. Over objection, the State elected two prior convictions from the Notice of the State's Special Plea of Enhancement Paragraphs for enhancement purposes.   See Footnote 1  The notice of enhancement incorrectly stated that one of the prior convictions was from the 165th Judicial District Court; it should have read the 265th Judicial District Court. Appellant pleaded true to the enhancement paragraphs and stipulated to the convictions. This appeal followed.
        In a single issue, appellant argues the trial court erred in allowing the State to use two prior convictions for the purpose of enhancement. A defendant is entitled to notice of prior convictions to be used for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). Notice of intent to enhance punishment must be given in a timely manner, but it need not be pleaded in the indictment itself to be considered proper notice, so long as it is pleaded “in some form” prior to trial. Villescas v. State, 189 S.W.3d 290, 292-293 (Tex. Crim. App. 2006); Brooks, 957 S.W.2d at 34. When a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance to prepare one, notice given as late as the beginning of the punishment phase satisfies both the federal and Texas constitutions. Villescas, 189 S.W.3d at 294; see Oyler v. Boles, 368 U.S. 448 (1962).
        Further, enhancement paragraphs do not have to be alleged with the same particularity as the allegations in the primary offense as long as notice is provided to the defendant. Sims v. State, 84 S.W.3d 768, 779 (Tex. App.-Dallas 2002, pet. ref'd). While the doctrine of variance is to avoid surprise to the defendant, variances between the evidence at trial and face of the enhancement paragraph is only material and fatal if it “misleads the defendant to his prejudice.” Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986); Sims, 84 S.W.3d at 779. Variances between an indictment and the proof of enhancement paragraphs in regard to cause numbers, courts, and dates of conviction are not material, even if they are not corrected. Freda, 704 S.W.2d at 42-34 (facial variances not fatal unless prejudicial surprise proven); Rooks v. State, 576 S.W.2d 615 (Tex. Crim. App. 1978) (indictment alleged prior conviction in Criminal District Court of Harris County while proof showed conviction originated in 184th District Court of Harris County).
        Appellant argues he received no prior notice of the enhancement paragraphs before the first day of trial, and any other notice was neither filed nor signed. He claims the notice he received was referred to as only a single enhancement and did not specify the range of punishment sought. Appellant argues that one of the enhancements did not match the written notice in the court's file and the other one contained erroneous information on the face of the pleading. He further argues that by admitting the unsigned stipulation, the court has erred under article 1.15 of the Texas Code of Criminal Procedure.
        In this case, we conclude appellant did receive timely notice of the State's intent to use two prior convictions to enhance appellant's sentence and that the typographical error in the notice was immaterial. The record shows that the prosecutor laid out the range of punishment sought saying, “[r]eckless is the state jail with two pen trips. It's going to be a second-degree range.” The record further shows that appellant was aware of the State's intent to enhance the punishment more than two months in advance of trial:
 
Appellant: Yes. Judge, first of all, if I may? I'm orally requesting that the state elect on the remaining- the state jail felony case, that they elect which convictions they're going to use to enhance this matter pursuant to the notice that they tendered to me several months ago prior to this trial.
 
Also in the record is the Notice of the State's Special Plea of Enhancement Paragraphs which was in the file for the case at the time of the trial and was signed by the State and faxed to appellant on March 16, 2007. The document provided notice, in advance, that the State intended to utilize enhancement paragraphs to increase the range of punishment and contained a list of nine prior convictions.
        Appellant's contention that he did not have proper notice fails because the record reflects he had notice on March 16th of the State's intent to use the convictions listed to enhance appellant's punishment. Villescas, 189 S.W.3d at 292-293; Brooks, 957 S.W.2d at 34. This is distinguishable from the Fairrow case cited by appellant because in that case notice was given only three days prior to trial. Fairrow v. State, 112 S.W.3d 288, 290-292 (Tex. App.-Dallas 2003, no pet.). Here, the record shows notice was given to appellant two and a half months in advance of trial. While the document did not specifically state which convictions the State intended to use to enhance the punishment, appellant was provided with sufficient notice that enhancement would be sought. See Villescas, 189 S.W.3d at 294.
        We also conclude appellant's contention that there was a variance in the court number on the State's notice is not a material or fatal error because it did not prejudice the defendant's substantial rights. See Freda, 704 S.W.2d at 42; Sims, 84 S.W.3d at 779. Even though there was a typographical error in the document, it had no material effect on the trial or the rights of appellant and cannot be deemed fatal because it did not affect the notice of the State's intent. Additionally, because the enhancement paragraphs do not have to be alleged with the same particularity as the indictment, the trial court did not err in determining that there was not a fatal error in the enhancement paragraphs due to the error. See Sims, 84 S.W.3d at 779.
        Appellant's final argument is that the court erred under article 1.15 of the Texas Code of Criminal Procedure. Article 1.15 provides that the trial court must approve, in writing, a defendant's waiver of the appearance, confrontation, and cross-examination of witnesses and defendant's consent to oral stipulations of testimony or the introduction of testimony in written form. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2007). This contention fails because article 1.15 does not apply to the punishment stage of trial. Stringer v. State, 241 S.W.3d 52, 56 (Tex. Crim. App. 2007); Holtzclaw v. State, 451 S.W.2d 505, 506-507 (Tex. Crim App. 1970) (article 1.15 “has no application in jury cases whether punishment is assessed by the court or by a jury”). Because article 1.15 does not apply and appellant pleaded true to the enhancement allegations, appellant's contention that mere “lip service” was given to the rules by the trial court lacks merit. Under these circumstances, we conclude the trial court did not err in using appellant's two prior felony convictions to enhance his punishment. Appellant was given fair and proper notice before the trial and was not deprived of his substantial rights. We overrule appellant's sole issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070819F.U05
 
Footnote 1 Appellant did not appeal the five hundred dollar fine assessed from the robbery conviction.