Bennie Joe Howe v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-292-CR
BENNIE JOE HOWE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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Appellant Bennie Joe Howe appeals from his conviction and life sentence
for aggravated sexual assault. In one issue, he argues that the State failed to
provide adequate notice of its intent to seek enhanced punishment under penal
code section 12.42(c). We affirm.
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… See T EX. R. A PP. P. 47.4.
Background
The facts of the offense are not relevant to this appeal. The grand jury
indicted Appellant for two counts of aggravated sexual assault. The indictment
also alleged the following enhancement paragraph:
And the Grand Jury aforesaid do further present that prior to the
commission of the aforesaid primary offense by [Appellant], to-wit:
on the 10th day of August, A.D. 1995, in the 78th District Court
of Wichita County, Texas, in Cause No. 32,274-B on the docket of
said court, [Appellant] was duly and legally convicted in the said
last named court of a felony, to-wit: INDECENCY WITH A CHILD,
. . . and said conviction was a final conviction and was a conviction
for an offense committed by [Appellant] prior to the commission of
the primary offense hereinbefore charged against him.
Eight months later, Appellant pleaded not guilty to both counts of the primary
offense. Immediately after he pleaded not guilty and before voir dire, his trial
counsel had him take the stand, and the following colloquy occurred between
them:
[DEFENSE COUNSEL]: Bennie, I have received an offer from
the State in this case which is 30 years --
THE DEFENDANT: I wouldn’t take two years. I’m not guilty.
THE COURT: Okay. Hang on just a minute.
[DEFENSE COUNSEL]: Why don’t you let me finish my
question. I have received an offer from the State for 30 years in
TDC for this offense. I understand you wouldn’t plead for two
years on this offense, but you do understand that we are dealing
with a first-degree felony and that the potential punishment in this
case would be 15 years to life; is that correct?
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THE DEFENDANT: Yes, sir.
[DEFENSE COUNSEL]: And is it your desire to expressly reject
the State’s offer?
THE DEFENDANT: Yes, it is.
....
[PROSECUTOR]: . . . I think [defense counsel] is incorrect on
the range of punishment. If the enhancement paragraph is found
true by the jury, or since they elected the jury, it’s going to be an
automatic life sentence. It’s not going to be 15 to 99 or life.
[DEFENSE COUNSEL]: If I could speak to [the prosecutor] for
just a second.
THE COURT: Off the record.
(Discussion off the record.)
....
[DEFENSE COUNSEL]: Bennie, you understand essentially
that what [the prosecutor’s] position is, is that in the event you’re
convicted of this offense --
THE DEFENDANT: Sure, give me the death penalty. I don’t
care. If you make me guilty I want the death penalty, yes, not life
in prison but the death penalty. Thank you. That’s all I have to
say.
[DEFENSE COUNSEL]: And I appreciate that. Allow me to
finish my question, if you please. The question for you is this. The
offer is 30 years and --
THE DEFENDANT: I want the death penalty if I’m found
guilty. I don’t want a life sentence. I don’t want 30 years. I don’t
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want two years. I am guilty -- if you’re going to find me guilty,
give me the death penalty. That’s all I have to say, Mr. --
....
[DEFENSE COUNSEL]: Recognizing that there is a better than
even chance -- recognizing that the only solution to this case in the
event of a conviction is that you receive the life in prison, is it still
your desire to reject the State’s offer for 30 years in the
penitentiary?
THE DEFENDANT: Well, sure.
The jury found Appellant guilty of both counts. Appellant pleaded true
to the enhancement paragraph—after his counsel advised him on the record
that if he pleaded true, the trial court would instruct the jury to assess
punishment at confinement for life. The trial court instructed the jury to assess
punishment at confinement for life on both counts, and the jury did as
instructed. The trial court sentenced Appellant accordingly, and this appeal
followed.
Discussion
In his sole issue, Appellant argues that the indictment’s enhancement
paragraph did not adequately notify him of the State’s intent to seek life
sentences, thereby depriving him of his right to due process. He contends that
“[t]he enhancement paragraph in the indictment was [at] best vague, if not
confusing, regarding the intentions of the State.”
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The purpose of an enhancement allegation is to provide the accused with
notice of the prior convictions relied upon by the State. Coleman v. State, 577
S.W.2d 486, 488 (Tex. Crim. App. [Panel Op.] 1979). The prior convictions
used as enhancements must be pleaded in some form and are often contained
in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App.
1997).
The statutory provisions governing enhancement of a felony offense with
a defendant’s prior convictions vary depending on both the degree of the
offense to be enhanced and the nature of the enhancing offense. T EX. P ENAL
C ODE A NN. § 12.42 (Vernon 2003 & Supp. 2007). Section 12.42(c) provides
as follows:
(1) If it is shown on the trial of a first-degree felony that the
defendant has been once before convicted of a felony, on
conviction he shall be punished by imprisonment in the Texas
Department of Criminal Justice for life, or for any term of not more
than 99 years or less than 15 years. In addition to imprisonment,
an individual may be punished by a fine not to exceed $10,000.
(2) Notwithstanding Subdivision (1), a defendant shall be punished
by imprisonment in the Texas Department of Criminal Justice for
life if:
(A) the defendant is convicted of an offense:
(i) under Section 21.11(a)(1), 22.021, or 22.011,
Penal Code; . . . and
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(B) the defendant has been previously convicted of an
offense:
....
(ii) under Section 21.02, 21.11, 22.011, 22.021, or
25.02, Penal Code . . . .
Id. §12.42(c).
The indictment alleged two counts of aggravated sexual assault.
Aggravated sexual assault is an offense under penal code section 22.021. Id.
§ 22.021 (Vernon Supp. 2007). The indictment’s enhancement paragraph
alleged a prior conviction for indecency with a child, which is an offense under
penal code section 21.11. Id. § 21.11 (Vernon 2003). Thus, section
12.42(c)(2) applied, and the only possible outcome of a finding of guilty to the
primary offenses and a finding of true to the enhancement allegation was a
mandatory life sentence. See id. § 12.42(c)(2). The indictment left no
question as to the State’s intent regarding punishment; indeed, the State’s
intent is not relevant because section 12.42(c) mandates a life sentence under
the circumstances. There was never the possibility of a sentence of fifteen to
ninety-nine years or life under section 12.42(c)(1) because that subsection
simply did not apply to the indictment’s allegations.
The is not a case of the State failing to provide adequate notice of the
prior conviction to be used for enhancement. It is not a case—as Appellant
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contends— of the State failing to provide adequate notice of which of two
alternative punishments it intended to seek because there was no alternative
punishment possible. It is, apparently, a case of Appellant’s trial counsel failing
to grasp the significance of the indictment’s allegations in terms of punishment
until the prosecutor explained it to him. However, the indictment, when read
in conjunction with section 12.42(c), contained all of the information necessary
to apprise Appellant of the punishment he faced if the jury found him guilty and
found the enhancement allegation to be true. And even after the prosecutor
explained the indictment’s ramifications to Appellant’s counsel with Appellant
present, and even after Appellant’s counsel in turn explained them to Appellant,
Appellant emphatically rejected the State’s plea offer.
We therefore overrule Appellant’s sole issue and affirm the trial court’s
judgment.
PER CURIAM
PANEL F: GARDNER, DAUPHINOT, and HOLMAN, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: May 1, 2008
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