David Simmons v. State

NO. 12-02-00280-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS DAVID SIMMONS, § APPEAL FROM THE 241ST APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION David Simmons appeals his conviction for delivery of cocaine. After a jury found him guilty, the trial court sentenced him to fifteen years of imprisonment. In two issues, Appellant contends his right to due process was violated because the State did not include an enhancement paragraph in the indictment and the trial court erred in failing to suppress certain evidence. We reform the judgment to reflect the trial court's finding on the enhancement allegation. We affirm as reformed. Background Appellant was indicted for delivery of cocaine in the amount of four grams or more but less than 200 grams, a first degree felony. Tex. Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2004); Tex. Health & Safety Code Ann. § 481.112(d) (Vernon 2003). No enhancement paragraph was included in the indictment. However, several days before trial, the State filed a notice of its intent to seek higher punishment based on Appellant's prior felony convictions. The jury found Appellant guilty as charged in the indictment. Appellant elected to have the trial judge assess punishment. The State presented evidence of two prior felony convictions and two prior misdemeanor convictions from three different counties. The trial court found the enhancement provision to be true and sentenced Appellant to fifteen years in the penitentiary. Enhancement Paragraph In his first issue, Appellant asserts he was denied his federal constitutional right to due process because the State did not include an enhancement paragraph in the indictment. He argues that he did not receive proper notice of the State's intent to use his prior convictions. He further argues that the jury was robbed of its duty to determine any matter that increases the sentence as set forth in the indictment, which is a constitutional violation. He asserts that the enhancement changed the nature and character of the charge against him and he was prosecuted for an offense beyond the maximum allowed for the substance that he possessed. Appellant relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). There the court confirmed its prior holding that any fact, other than the fact of a prior conviction, that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. Id., 530 U.S. at 476, 120 S. Ct. at 2355. Apprendi does not support Appellant's arguments. It explicitly excludes prior convictions in its statement of what must be charged in the indictment. Id. Further, Apprendi speaks to facts that increase the maximum penalty for a crime. Here, Appellant cannot complain that the maximum was increased, as it was not. Rather, the minimum was increased. The offense as charged in the indictment carries a potential penalty of life or any term of not more than ninety-nine years or less than five years and a fine of up to $10,000.00. Tex. Pen. Code Ann. § 12.32 (Vernon 2003). The penalty for a first degree felony enhanced by a prior felony conviction is life or any term of not more than ninety-nine years or less than fifteen years and a fine not to exceed $10,000.00. Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2004). Accordingly, after application of the enhancement, the minimum term Appellant could have received is ten years greater than the minimum term he could have received in the absence of the enhancement. Neither Apprendi nor any other law that we have found requires the State to include the enhancement allegations in the indictment because its application raises the minimum term of years that could be assessed. Even before Apprendi was decided, the law in Texas was that enhancement allegations need not be included in the indictment. Brooks v. State, 957 S.W.2d 30, 32 (Tex. Crim. App. 1997). Prior convictions used as enhancements must be pleaded in some form, but they need not be pleaded in the indictment. Id. at 34. Here, the State provided notice to Appellant of its intent to present evidence of prior convictions for enhancement purposes. This satisfies the Brooks pleading requirement. Appellant's argument that the jury was robbed of the duty to determine any matter that increases the sentence also fails. The State presented evidence of prior convictions to the trial judge, who Appellant elected to determine his sentence. The jury did not need to hear evidence that increased the sentence. We overrule Appellant's first issue. Admissibility of Evidence In his second issue, Appellant asserts the trial court should have suppressed testimony regarding his arrest. He argues that the lead investigator, Detective Mike Malone, a member of the Tyler police department, was operating outside his jurisdiction at the time of the arrest. He contends Detective Malone lacked jurisdictional authority to arrest him and, therefore, the arrest was illegal. Detective Malone arranged to make an undercover drug buy from Michael Davenport at Davenport's home in rural Smith County one evening. Appellant and Jonathan Pena, who also lived there, were present when he arrived. Appellant was in the process of cutting up rocks of methamphetamine and putting it into bags for sale. Pena was snorting cocaine. The detective and Appellant negotiated a price for the methamphetamine while Davenport went to another part of the house to retrieve the drugs Detective Malone had planned to purchase. The detective then agreed to buy a certain amount of powder cocaine. The men began to weigh the cocaine and discovered they did not have enough. Appellant placed some methamphetamine on the scales until the combined weight of cocaine and methamphetamine equaled the requested amount. Detective Malone paid Davenport for the drugs and left. Appellant was not arrested at that time. We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996). A peace officer, while outside his jurisdiction, may arrest without a warrant a person who commits a felony within the officer's presence or view. Tex. Code Crim. Proc. Ann. art. 14.03(d) (Vernon Supp. 2004). Appellant committed the felony offense of delivery of cocaine in the presence and view of Detective Malone. Therefore, the fact that he was outside Tyler city limits at the time is irrelevant. See Preston v. State, 983 S.W.2d 24, 26 (Tex. App.-Tyler 1998, no pet.). The trial court did not err in admitting testimony of Appellant's arrest. We overrule Appellant's second issue. Conclusion The State was not required to include the enhancement allegations in the indictment. Appellant was provided with notice of the State's intent to present evidence of prior convictions that passes constitutional muster. Because Appellant committed a felony offense in Detective Malone's presence, the fact that he was outside his jurisdiction is irrelevant and Detective Malone's testimony is admissible. At the sentencing hearing, after hearing evidence of prior convictions, the trial court found the enhancement provision to be true and sentenced Appellant accordingly. We note, however, that the trial court's judgment indicates that no finding on enhancement was made. We have the authority and sufficient information to reform the judgment to reflect the trial court's finding. Tex. R. App. P. 43.2(b); Blanco v. State, 761 S.W.2d 38, 42 (Tex. App.-Houston [14th Dist.] 1988, no pet.). Accordingly, we reform the trial court's judgment by inserting the word "yes" in place of "N/A" in the second column on the line stating "Findings on Enhancement." The judgment is affirmed as reformed. SAM GRIFFITH Justice Opinion delivered January 30, 2004. Panel consisted of Worthen, C.J., Griffith, J. DeVasto, J., not participating. (DO NOT PUBLISH)