Frank Richardson v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00144-CR

______________________________

FRANK RICHARDSON, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31,643-B

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Before Morriss, C.J., Ross and Cornelius, *JJ.

Opinion by Justice Cornelius

_____________________________________

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

O P I N I O N

            A jury convicted Frank Richardson of aggravated assault with a deadly weapon. Richardson's punishment, enhanced by two prior felony convictions, was set by the jury at forty years' confinement.

            Richardson's only contention on appeal is that his conviction should be reversed because the State's notice that it intended to enhance his punishment by prior convictions was untimely. We reject this contention and affirm the judgment.

            If the State intends to enhance a defendant's punishment by prior convictions, it must give the defendant reasonable notice of its intent by some kind of pleading. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); Cochran v. State, 107 S.W.3d 96 (Tex. App.—Texarkana 2003, no pet.). There is no statutory requirement that the notice of enhancement be given at any specific time before trial, but a judicial rule has been adopted that notice given at least ten days before trial is presumptively reasonable. Splawn v. State, 160 S.W.3d 103 (Tex. App.—Texarkana 2005, pet. filed); McNatt v. State, 152 S.W.3d 645 (Tex. App.—Texarkana 2005, pet. filed); Fairrow v. State, 112 S.W.3d 288, 295 (Tex. App.—Dallas 2003, no pet.). However, courts have found notice reasonable when given less than ten days before trial. See Hackett v. State, 160 S.W.3d 588 (Tex. App.—Waco 2005, no pet.); Barnes v. State, 152 S.W.3d 144 (Tex. App.—Dallas 2004, no pet.). Thus, the presumption that reasonableness requires a minimum of ten days' notice may be rebutted depending on the circumstances of the case and the actions of the defendant and the State. For example, in Hackett, where only five days' notice was given, the State gave notice as soon as it became aware of the enhancement convictions. The defendant was "well aware" of the enhancements, and he did not move for a continuance after receiving notice of the intent to enhance. In Barnes, where notice was given only seven days before trial, the defendant did not present any evidence or argument of surprise or inadequate time to prepare to defend against the enhancements. The defendant pleaded true to the enhancement allegations and did not seek to change his selection of the jury as the assessor of his punishment after learning of the State's intent to enhance the punishment.

            We conclude that the ten days reasonableness presumption was rebutted in this case as well. Richardson's case was set for a guilty plea on September 16, 2004. Apparently Richardson and the State had agreed on a plea arrangement where Richardson would plead guilty and the State would recommend a punishment of fifteen years with no enhancement of the punishment. This was stated at the guilty plea hearing on September 16, 2004, with Richardson and his attorney present. At the guilty plea hearing, however, Richardson rejected the plea arrangement and told the trial court he wanted to hire an attorney and go to trial. At that time, the prosecutor stated into the record:

Ms. Nielsen:Your Honor, if I can just add something. I know Mr. Hurlburt has made his client aware of this, but I'd like it to be on the record as well. The defendant, if found guilty, is an habitual felon and is looking at 25 minimum if I enhance him, which I have not done.

 

The Court:With a deadly weapon?

 

Ms. Nielsen:Correct. And today it's capped at 20 years, and I know that Mr. Hurlburt has relayed the fact that the State's recommendation would be 15. If he were to pull back or try to find another counsel, this afternoon I will file the enhancement notice, and the very minimum will be 25 years. And I know he's aware of that. I just want it on the record.

            The guilty plea hearing was on Thursday. The State filed its written enhancement notice on the following Tuesday, September 21, 2004, which was two week days and two weekend days after the plea hearing and six days before the trial began on September 27, 2004.

            The State at first refrained from using enhancements because there was an agreement for a guilty plea, and the State only sought enhancements after Richardson rejected the plea arrangement. The written notice of the intent to enhance was filed six days before the trial began. Richardson did not move for a continuance; he was fully informed on September 16, eleven days before trial, about the State's intent to use the enhancements; he has not claimed or produced evidence that he was surprised or lacked time to prepare to defend against the enhancements; and he pleaded true to the enhancement allegations at the punishment stage of the trial. In view of all these facts and circumstances, we conclude the State's notice of intent to use enhancements was reasonable and timely.

 

 

 

 

            For the reasons stated, we affirm the judgment of the trial court.

 

                                                                                    William J. Cornelius

                                                                                    Justice*

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

Date Submitted:          June 17, 2005

Date Decided:             August 17, 2005

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00146-CR

                                                ______________________________

 

 

                               ROBERT WESLEY PRESTON, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                 Â

 

 

                                         On Appeal from the 3rd Judicial District Court

                                                         Henderson County, Texas

                                                          Trial Court No. C-16,768

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                     MEMORANDUM OPINION

 

            Robert Wesley Preston appeals his conviction for possession of methamphetamine, four grams or more, but less than 200 grams.^[1]  See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2010).  The State agreed to abandon another count charging possession with intent to deliver the same amount of methamphetamine, a first degree felony,^[2] and two enhancement paragraphs.^[3]  The trial court sentenced Preston to seventeen years’ imprisonment. 

            Preston’s attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail; counsel goes on to suggest three possible appellate points, and why those points would not be successful.  We agree with counsel’s research and interpretation of the record and applicable law.  Specifically: The record establishes Preston pled guilty to a second degree felony offense knowingly and voluntarily,^[4] so it could not be said the trial court abused its discretion in finding Preston guilty.  Evidence Preston was in possession of methamphetamine a few months after the charged offense, while he was free on bond for that offense, was admissible as punishment evidence.^[5]  See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2010). Finally, counsel points out there is sufficient evidence in the record supporting a finding of guilt beyond a reasonable doubt.  In addition to Preston’s plea of guilty, there is a signed stipulation of evidence and judicial confession and waiver of right to jury trial; and the offense report describing the laboratory and drugs found was admitted as evidence. 

            Counsel has provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  This meets the requirements of Anders v. California, 386 U.S. 738, 744 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).  Additionally, this Court has reviewed the record and finds no reversible error.  See Anders, 386 U.S. at 744; Bledsoe v. State, 178 S.W.3d 824, 826–827 (Tex. Crim. App. 2005).Â

            Counsel mailed a copy of the brief to Preston on January 28, 2011, informing Preston of his right to file a pro se response and of his right to review the record.  Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.  Preston has filed no pro se response.

            Having found no genuinely arguable issue for appellate review, we find the appeal to be frivolous.  Consequently, we affirm the judgment of the trial court.^[6]

 

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          May 16, 2011

Date Decided:             May 18, 2011

 

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^[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

 

^[2]See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon 2010). 

 

^[3]See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2010).

 

^[4]Based on statements and arguments by his attorney, Preston’s strategy was to get the trial court to place Preston on community supervision.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 3 (Vernon Supp. 2010).

 

^[5]The deputy at the scene on the day of the extraneous offense identified Preston as one of the men who ran from the deputy; a rock of methamphetamine was found on the ground along the route the men ran. This incident occurred on Preston’s property, the same location where he had earlier been found present in the midst of a methamphetamine laboratory (which incident was the basis of the second degree felony to which Preston pled guilty, i.e., the instant offense). 

^[6]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case.  No substitute counsel will be appointed.  Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review.  Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case.  See Tex. R. App. P. 68.3.  Any petition for discretionary review should comply with the requirements of Rule 68 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.