No. 14-02-00899-CR
Opinion filed July 24, 2003. Do Not Publish — Tex.R.App.P. 47.2(b).
On Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court Cause No. 41,675.
Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.
EVA M. GUZMAN, Justice.
After waiving a trial by jury, appellant pleaded not guilty to the felony offense of forgery in a two-count indictment. In two points of error, appellant contends the trial court erred in (1) overruling his "plea in bar" and (2) sentencing him to a term of imprisonment greater than that authorized by law. We affirm.
Factual Background
Appellant was charged with the felony offense of forgery in a two-count indictment. Although he had been convicted of forgery on two previous occasions, the indictment did not contain any enhancement paragraphs. Several weeks before trial the State served upon appellant its "Notice of Enhancement Paragraphs," which stated: COMES NOW THE STATE OF TEXAS by and through her Prosecutor and presents this State's Notice of Enhancement Paragraphs and would show the court the following:
The indictment in this cause pleads no enhancement paragraphs.
The State of Texas now formally pleads other final convictions for the purposes of enhancement as allowed by Brooks v. State, 957 S.W.2d 30 (Tex.Crim.App. 1997).
The State then set forth appellant's two previous forgery convictions. This document was signed by J. Wooten, an assistant district attorney, on July 23, 2002, and the certificate of service, also signed by Wooten, reflects that it was delivered to appellant's counsel on that same day. Thereupon, appellant filed his "Plea in Bar," in which he argued the State's pleading was improper. The court denied appellant's "Plea in Bar." After waiving his right to a jury trial, appellant pleaded not guilty. However, after the State presented its first witness, appellant changed his plea to guilty. At the hearing on sentencing, the trial court found the two enhancement paragraphs to be true and assessed punishment at six years' confinement. Discussion
In his first point, appellant contends the trial court erred in overruling his "Plea in Bar," which challenged the permissibility of the State's "Notice of Enhancement Paragraphs." The purpose of an enhancement paragraph is to provide the accused with notice that the State will attempt to use a specific conviction for enhancement of punishment. Coleman v. State, 577 S.W.2d 486, 488 (Tex.Crim.App. 1979); see also Williams v. State, 33 S.W.3d 67, 67 (Tex.App.-Texarkana 2000, no pet.). An enhancement allegation, therefore, is merely a pleading. See Brooks v. State, 921 S.W.2d 875, 878 (Tex.App.-Houston [14th Dist.] 1996), aff'd, 957 S.W.2d 30 (Tex.Crim.App. 1997)). It contains no elements of the offense and does not convey jurisdiction upon the trial court. Id. The Court of Criminal Appeals has held that it is not necessary to allege the enhancing offense in the indictment, though it is permissible and perhaps preferable to do so. See Brooks v. State, 957 S.W.2d 30, 32 34 (Tex.Crim.App. 1997); Fite v. State, 60 S.W.3d 314, 319 n. 2 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (noting that "[i]n order to use prior convictions for enhancement purposes, priors need be pled in some form and preferably in the indictment"). Appellant does concede that the Brooks court overruled the prior cases holding that enhancement paragraphs must be pled in the indictment. See Beal v. State, 91 S.W.3d 794, 797 n. 5 (Tex.Crim.App. 2002) (Keller, J., concurring) ("The law no longer requires the pleading of enhancement convictions in the indictment, at least where they are not jurisdictional."). In his "Plea in Bar," however, appellant argued that Brooks only stands for the proposition that a trial court need not physically amend or add to an indictment when it grants the State's motion to amend the indictment. Thus, appellant suggests that Brooks is distinguishable from the case at bar and that his "Plea in Bar" should have been granted. We cannot adopt this narrow reading of Brooks. In applying Brooks, we note that the State's "Notice of Enhancement Paragraphs" provided appellant with written notice of the prior convictions on which the State intended to rely to increase his punishment. Thus, the State's "Notice of Enhancement Paragraphs" was sufficient under Brooks, and the fact that the enhancement paragraphs were averred in that document and not included in the indictment is irrelevant. Nevertheless, appellant invokes the U.S. Supreme Court's ruling in Apprendi v. New Jersey in support of his challenge to the trial court's ruling. 530 U.S. 466 (2000). In that case, the Court held that "[t]he Fourteenth Amendment right to due process and the Sixth Amendment right to trial by jury, taken together, entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Id. at 467. Much turns on whether appellant's prior forgery convictions are properly considered as elements of the offense or sentencing considerations. See Jones v. United States, 526 U.S. 227, 232 (1999). In Apprendi, the Court found that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490; see also Ex parte Watkins, 73 S.W.3d 264, 271 n. 27 (Tex.Crim.App. 2002); see also Ring v. Arizona, 536 U.S. 584, 585 86 (2002) (noting that "[i]f a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt."). Thus, extrapolating from Apprendi, appellant concludes that the enhancements for the prior forgery convictions, as facts increasing the penalty for the underlying offense, are elements of the offense. Coupling the Apprendi reasoning with the Texas rule that "[e]verything should be stated in an indictment which is necessary to be proved," appellant argues the enhancements in this case should have been included in the indictment in order for the court to find the enhancements true and sentence him accordingly. Compare Apprendi, 530 U.S. at 490, with Tex. Code Crim. Proc. § 21.03. However, we find appellant's reliance on Apprendi misplaced, as the Court specifically exempted prior convictions from this constitutional requirement. 530 U.S. at 490; Smith v. State, 74 S.W.3d 868, 873 (Tex.Crim.App. 2002). The Court plainly stated, " [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490 (emphasis added); see also Ring, 536 U.S. at 600 02. Appellant contends that despite express exception of prior convictions from this requirement, a close reading of the Apprendi opinion in conjunction with the concurring opinions of Justices Scalia and Thomas reveals that prior convictions increase the punishment range and are therefore elements of the offense. We decline to read Apprendi contrary to its plain language. Indeed, a prior conviction may be found by the trial court even if it increases the statutory maximum sentence. Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998). Accordingly, we cannot pair Apprendi and the Code of Criminal Procedure to achieve the result appellant seeks. Finding Brooks dispositive and Apprendi inapplicable, we overrule appellant's first point of error. Because we have found that the trial court did not err in overruling appellant's "Plea in Bar," we overrule appellant's second point of error. Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.