### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00347- CR

Jeff ery Scot t G raves, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F LLANO COUNTY , 424 TH JUDICI AL DISTRICT

NO. 615 4, H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

The State char g ed J eff

ery Scott Gra ves with theft of proper ty in the amount of $20,000 or more but less than $100,000. See Tex. Penal Code Ann. § 31.03(e) (5 ) (W est Supp. 2010). The indictment included two enhanc ement para g raphs, one of which was later abandone d. A jury found Gra ves g uilty of the lesser- included offe nse of theft of proper ty in the amount of $1,500

or more but less than $20,000, see id. § 31.03(e) (4), and found that Gra ves had been previously convicted of two state-jail felonies. The jury assessed Gra ves’s punishment at t en y ea rs’ confine ment and a $10,000 fine. On appea l, G rave s arg ues that he wa s not give n sufficie nt notice of the State’s intent to use prior convictions to enhanc e the offe nse of which he was convicted. We aff irm the judg ment of the trial c ourt.BACK GR OUND Gra ves was acc used of stea ling inventor y and equipment f

rom his company -issued truck afte r being fired from his job as a mobile salesman for an elec trical-supply company . On May 5, 2009, Gra

ves was indicted for the third-deg ree felony of theft of proper ty in the amount of $20,000

or more but le ss tha

n $100,000. See id

. § 31.03(e) (5). The indictment a lso inc luded enhanc ement para g raphs for two separ ate prior convictions for the second- deg ree felony of b u rgl ar y of a habitation. On Marc h 2, 2010, the State serve d Gra ves with a notice of extraneous offe nses, which included st ate-

jail felony convictions for f org ery of a financ ial instrument and theft of a firea rm. 1 The State did not g ive any additional notice of its intent to enhanc e. See Brooks v. State , 957 S.W .2d 3 0 , 3 4 (Tex. Crim. App. 1997) (allowing State to file notice of enhanc ement in form other t h an indictment). Prior to voir dire, the State abandone d enhanc ement para g raph two of the indictment due to an e rror . 2

After a trial, the jury found Gra ves g uilty of the lesser- inclu d ed o ffe nse of theft of proper ty in the amount of $1,500 or more but less than $20,000. S ee Tex. Penal Code Ann. § 31.03(e) (4). This offe nse i s a st ate- jail felony subject to a punishment ra ng e of 180 day s to two y ear s. See id. ; see also id. § 12.35(a) (West Supp. 2010). I mmediately prior to the pun ishment phase, the State announce d its intent to enhanc e the rang e of punishment to a th i rd -d egr ee felony

The notice also included eig ht additional felony convictions: three second- deg ree felonies 1 for burg lary of a ha

bitation, a third-deg ree felony for esca pe, and four state-jail felonies, including two burg lary -of- a-building convictions, one unauthorized-use- of-a -motor-ve hicle conviction, and one thef t conviction. Gra ves’s indictment cited the conviction as burg lary of a habitation, while the conviction 2 was a ctually

for bur g lary

of a building

. 2rang e of two to ten y ear s by proving two prio r s t ate-jail felony convictions. See id. § 12.42(a) (1)

(West Supp. 2010). Gra ves objected on the g round that he did not rec eive proper no t i ce o f the State’s intent to enhanc e. Gra ves claimed that while t h e p enal code require d two prior state-jail convictions to enhanc e the lesser- included offe nse, the indictment only provided notice of one nonstate-jail offe nse to be used for enhanc ement. The trial court overr uled Gra ves’s objection but had the State rea d the convictions it intended to use for enhanc ement into the rec ord befor e the punishment trial beg an. Gra ves pleade d “not true” to the enhanc ement alleg ations. At punishment, 3 the State enter ed a pe nitentiary packe t into evidenc e as proof of prior convic tions for the state- jail felonies of burg lary of a building, theft of a firea rm, and forg ery , a second- deg ree felony for burg lary of a habitation, and a third-deg ree felony for esca pe. The State called police office r J ay Ba uman to testify reg arding the contents of the penitentiary packe t and Bill Boy d and Glen Wil liams, employ ees of the L lano County Sheriff’ s Depa rtment, to testify to Gra

ves’s bad reputa tion in the community

. Gra ves prese nted no punishment w itnesses. His defe nse consisted of raising two objections to the admissibili ty of the State’s penitentiary packe t. First, he objected that the packe t was inadmissible hear say . Second, he objected that the packe t was not proper ly cer tified beca

use the supportin g aff idavit did not identify which pag es it was authenticat ing. The trial court overr uled both objections, and Gra ves does not c halleng e the trial court’ s admission of the penitentiary packe t on

The State announce d that it would prove the state-jail felonies for burg lary of a building, 3 forg ery of a financ ial inst rument, and theft of a firea rm. See Tex. Penal Code Ann. § 30.02(c) (1) (West 2003) (burg lary of building), § 32.21(d) (West Supp. 2010) (for g ery ), § 31.03(e) (4)( C) (West Supp. 2010) (theft of firea rm). I t was require d to prove at least two of the three to enhanc e Gra ves’s sentenc e. See id. § 12.42(a) (1) ( West S upp. 2010). 3appea l. The jury found that Gra ves had been convicted of two prior state-jail felonies and assessed

punishment at ten y ear s’ imprisonment and a $10,000 f ine.

DISCUSSIO N I n a single issue on appea l, Gra ves challeng es the trial court’s deter mination that he

rec eived sufficie nt notice of the State’s intent to enhanc e. The require ment that a defe ndant rec eive

rea sonable notice of prior co n victions to be used for enhanc ement is a constitutional due proce ss issue. See Villescas v. State , 189 S.W .3d 290, 294 (Tex. Crim. App. 2006). I n deter mining whether

a defe ndant rec eived sufficie nt notice of the State’s intent to enhanc e punishment, we are to look to the rec ord to identify whether his defe nse was impaired by the timing of the notice. Pelache v. State , 324 S.W .3d 568, 577 (Tex. Crim. App. 2010). When a defe ndant has no defe nse to the enhanc ement alleg ation and has not sug g ested the need for a continuance in order to prepa re one, notice g iven at the beginning of t he punis hment phase satisfies both the fede ral a nd state constit utions. Villescas , 189 S.W .3d at 294. Fur

ther, while some f

orm of notice of enhanc ement is requir ed, notice c an be satisfied by rea ding the enhanc ement information into the rec ord at the start of the punishment phase of trial. See P elache , 324 S.W .3d at 576 ( citing Oyler v . Boles , 368 U.S. 448, 452 (1962)).

Gra ves has made no indication, either at trial or on appea l, that he had a ny defe nse to the enhanc ement alleg ations other than his challeng e to t h e admissibili ty of the penitentiary packe t. Nor did he sug g est that a c ontinuance w as re quired to discover or pre pare a defe nse, even afte r t he S t at e t wi ce volunteere d that it would have no objections wer e a continuance reque sted. 4

The trial court, howeve r, did n o t i n d i ca t e whether it was amena ble to g ranting a 4 continuance

. 4Additionally , Gra ves made no indication that he was surprised by or unprepa red for the enhanc ement alleg ations. I n d ee d , Gra ves had notice well befor e the commence ment of trial that: (1) the State intended to enhanc e the indicted offe nse and any lesser- included offe nse, see Pelache , 324 S.W .3d
at 577 (holding that notice of intent to enhanc e indi ct ed offe nse was sufficie nt notice of intent to enhanc e lesser -included of fense ); (2) the State intended to introduce the offe nses for bur g lary of a building, forg ery , and theft of a firea rm during punishment; and (3) both the indicted offe nse and the lesser- included offe nse wer e statutorily subject to enhanc ement, see Tex. Penal Code Ann. § 12.42. Be cause Gra ves does not alleg e that his defe nse was impaired in any way by the timing of the notice of enhanc ement, we conclude that the notice rea d into the rec ord prior to the punishment phase was sufficie nt. See P elache , 324 S.W .3d at 576; Villescas , 189 S.W .3d at 294.

CONCLUSION We affir m the trial court’ s judgme nt of conviction.

__________________________________________ Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Affir med Filed: May

5, 2011 Do Not Publish

5