VACATE, AFFIRM, and REMAND; and Opinion Filed May 6, 2019.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-00250-CR

No. 05-18-00251-CR

CHRISTOPHER ROGERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court

Dallas County, Texas

Trial Court Cause Nos. F16-550150-Q, F17-34648-Q

MEMORANDUM OPINION

Before Justices Brown, Schenck, and Pedersen, III

Opinion by Justice Schenck

This is a consolidated appeal of two cases in which appellant Christopher Rogers was 

convicted of possession of methamphetamine and possession with intent to deliver 

methamphetamine. In four issues, appellant asserts (1) the sentence imposed in his possession 

case is beyond the applicable punishment range; (2) his indictment in the intent to deliver case was 

not properly amended, precluding consideration of prior convictions for enhancement purposes; 

and his (3) plea of true in the possession case and (4) plea of guilty in the intent to deliver case 

were rendered involuntary because he was not properly admonished as to the correct ranges of 

punishment. With respect to the possession case, we affirm appellant’s conviction, vacate his 

sentence, and remand the case to the trial court for a new hearing on punishment. With respect to 

the intent to deliver case, we affirm the trial court’s judgment. Because all issues are settled in 
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law, we issue this memorandum opinion. TEX. R. APP. P. 47.4. 

BACKGROUND

Appellant was charged by indictment with the third-degree felony offense of possession of 

methamphetamine in an amount of 1 gram or more but less than 4 grams, enhanced by a prior 

conviction. The offense was alleged to have occurred on May 26, 2016. On February 23, 2017, 

the trial court granted the State’s motion to strike the enhancement paragraph and appellant entered 

a negotiated plea of guilty. The trial court accepted appellant’s plea and, in accordance with the 

terms of the plea agreement, placed appellant on four years’ deferred-adjudication probation. The 

trial court imposed conditions of probation. On June 22, 2017, the State moved to revoke 

appellant’s probation and to proceed with an adjudication alleging appellant had violated various 

conditions of his probation. 

In addition, while appellant was on probation, he was charged by indictment with the firstdegree felony offense of possession with intent to deliver methamphetamine in an amount of 4 

grams or more but less than 200 grams, enhanced by a prior conviction in 1988 for burglary of 

habitation. The possession with intent to deliver offense was alleged to have occurred on 

September 11, 2017. On January 18, 2018, the State gave appellant notice that it intended to 

enhance the punishment range using two prior burglary of habitation convictions that occurred in 

1992 and 1995.

1

 On January 19, 2018, the State moved to strike the enhancement for the 1988 

burglary conviction and replace it with the 1992 and 1995 burglary convictions. The trial court 

granted the State’s motion the same day. 

On January 29, 2018, appellant appeared before the trial court in both cases. In the 

possession case, appellant pleaded true to the allegations in the State’s motion to adjudicate. In 

 

1 The notice referenced appellants conviction of the felony offense of burglary of habitation in the 158th judicial district court of Denton 

County in Cause Number F95-0184-B on the 17th day of October, 1995, and conviction of the felony offense of burglary of a habitation in the 

204th district court of Dallas County in Cause Number F89-87924 on the 26th day of March, 1992.
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the intent to deliver case, appellant entered an open plea of guilty to the charged offense and 

pleaded true to the two enhancement paragraphs. 

On February 28, 2018, appellant appeared before the trial court for punishment in the two 

cases. In the possession case, the trial court accepted appellant’s plea of true to the allegations in 

the State’s motion to adjudicate, found him guilty of the charged offense, revoked his probation, 

and sentenced him to 20 years’ confinement. In the intent to deliver case, the trial court accepted 

appellant’s open plea of guilty and his plea of true to the enhancement paragraphs, convicted him 

of the charged offense, and sentenced him to 25 years’ confinement. The trial court ordered the 

sentences to run concurrently. 

DISCUSSION

I. Possession Case

In his first issue, appellant contends the trial court improperly assessed punishment in the 

possession case because the court imposed a sentence that was outside the applicable range. The 

State agrees. When the trial court revoked appellant’s probation and adjudicated appellant’s guilt, 

it assessed punishment as if the enhancement paragraph that was originally in the indictment was 

still in effect. Had appellant’s possession offense been subject to enhanced punishment, this 

offense would have been elevated to a second-degree felony for which the punishment range is 2 

to 20 years. TEX. PENAL CODE ANN. § 12.33(a). But the State had previously struck the 

enhancement paragraph and did so prior to appellant entering his plea of guilty and as part of the 

plea agreement. Consequently, appellant’s offense was a third-degree felony and not a seconddegree felony. The range of punishment for a third-degree felony is 2 to 10 years’ confinement, 

not 2 to 20 years. Id. § 12.34(a). Consequently, appellant’s 20 year sentence in the possession 

case is outside the applicable range of punishment. A sentence that is outside the statutory range 

of punishment for the offense is unauthorized by law and, thus, illegal. Mizell v. State, 119 S.W.3d 
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804, 806 (Tex. Crim. App. 2003). Because appellant’s sentence in the possession case is illegal, 

the trial court erred in assessing punishment in that case. We sustain appellant’s first issue. 

II. Intent to Deliver Case

In his second and third issues, appellant contends the trial court did not effectively amend 

the indictment to add the 1992 and 1995 burglary convictions as enhancement paragraphs and,

thus, he was erroneously admonished on the range of punishment making his plea of guilty to the 

intent to deliver offense involuntary. 

Appellant relies on articles 28.10 and 28.11 of the code of criminal procedure to support 

his claim the amendment to the indictment was ineffective. Articles 28.10 and 28.11 provide the 

guidelines for amending an indictment or information. TEX. CODE CRIM. PROC. ANN. arts. 28.10, 

28.11. More particularly, article 28.10 provides:

(a) After notice to the defendant, a matter of form or substance in an indictment or 

information may be amended at any time before the date the trial on the merits 

commences. On the request of the defendant, the court shall allow the defendant 

not less than 10 days, or a shorter period if requested by the defendant, to respond 

to the amended indictment or information.

(b) A matter of form or substance in an indictment or information may also be 

amended after the trial on the merits commences if the defendant does not object.

(c) An indictment or information may not be amended over the defendant’s 

objection as to form or substance if the amended indictment or information charges 

the defendant with an additional or different offense or if the substantial rights of 

the defendant are prejudiced.

See id. 28.10. Article 28.11 provides, “[a]ll amendments of an indictment or information shall be 

made with the leave of the court and under its direction. Id. art. 28.11. 

An enhancement allegation that is not part of the State’s case-in-chief is not part of the 

“substance” of the indictment. Choice v. State, Nos. 05-11-00629-CR, 05-11-00630-CR, 2012 

WL 3104676, at *3 (Tex. App.—Dallas July 31, 2012, pet. ref’d) (not designated for publication); 

Thomas v. State, 286 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing 
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Stautzenberger v. State, 232 S.W.3d 323, 327 (Tex. App.—Houston [14th Dist.] 2007, no pet.)).

Thus, articles 28.10 and 28.11 do not apply to the amendment of enhancement allegations in the 

indictment. Choice, 2012 WL 3104676, at *3; Thomas, 286 S.W.3d at 114. 

While prior convictions used for enhancement purposes must be raised in some form, they 

need not be pleaded in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).

When the State moves to amend the enhancement allegations and the trial court grants the motion, 

the requisite notice has been provided. Davis v. State, No. 05-14-00378-CR, 2015 WL 1542211, 

at *7 (Tex. App.—Dallas Apr. 2, 2015, no pet.) (mem. op., not designated for publication) (citing 

Brooks, 957 S.W.2d at 34)).

While the State was required to give appellant notice of its intent to enhance his 

punishment, the State was not required to plead enhancement paragraphs in the indictment. The 

State’s motion to amend the indictment to remove the 1988 burglary conviction and add the 1992 

and 1995 burglary convictions, which the trial court granted, provided notice to appellant that the 

State intended to use these convictions to enhance his punishment. See Davis, 2015 WL 1542211, 

at *7. The trial court and the State were not required to return to and also physically amend the 

indictment. Id. In addition to the foregoing, the State gave appellant notice of its intent to use his 

1992 and 1995 burglary convictions to enhance punishment via its January 18, 2018 Notice of the 

State’s Intent to Enhance Punishment Range. This notice also satisfied the requirement articulated 

in Brooks that the enhancement had to be pleaded somewhere. See Villescas v. State, 189 S.W.3d 

290, 291, 295 (Tex. Crim. App. 2006). 

Because articles 28.10 and 28.11 were not applicable, and because appellant was given 

sufficient notice of the State’s intent to enhance his punishment with the 1992 and 1995 burglary 

convictions, we overrule appellant’s second issue. We similarly overrule appellant’s third issue 

because appellant was correctly admonished on the range of punishment that would apply should 
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the two enhancement paragraphs be found true prior to entering his guilty plea to the intent to 

deliver offense.2 See Luckett v. State, 394 S.W.3d 577, 581 (Tex. App.—Dallas 2012, no pet.).

III. Admonishment

In his fourth issue, appellant asserts his plea of true to the allegations in the revocation 

proceeding concerning the possession offense was involuntary because he was not properly 

admonished as to the correct range of punishment. 

A trial court is required to admonish a defendant of the range of punishment attached to an 

offense before the defendant enters a plea of guilty or nolo contendere. See CRIM. PROC. art.

26.13(a)(1). The record before us reflects that appellant was admonished, in writing, before he 

entered his plea of guilty to the possession offense, that the punishment range for the offense was

2 to 10 years’ confinement. That was the correct punishment range for this offense without 

enhancement. PENAL § 12.34(a). Consequently, appellant was properly admonished before he 

entered his guilty plea.

While the trial court commented during the revocation proceeding that it believed the range 

of punishment for the possession offense is from 2 to 20 years, it did so after it accepted appellant’s 

plea of true to violations of the terms of his probation. Consequently, the trial court’s statements 

could not have impacted appellant’s plea decision. Moreover, the admonishment requirements of 

article 26.13 do not apply in revocation proceedings, where the trial court determines whether a 

probation violation has occurred and, if so, proceeds to punishment. See Gutierrez v. State, 108 

S.W.3d 304, 309 (Tex. Crim. App. 2003).

Accordingly, we overrule appellant’s fourth issue.

 

2 The trial court admonished appellant that if he pleaded guilty to the possession with intent to deliver charge and true to the two enhancement 

paragraphs the range of punishment would be 25 to 99 years or life confinement. This was the correct punishment range. See PENAL § 12.42(d).
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CONCLUSION

We affirm the trial court’s judgment in appellant’s intent to deliver case (Cause Number 

F17-34648). We affirm the portion of the trial court’s judgment in the possession case (Cause 

Number F16-55015) with respect to appellant’s conviction, we vacate the portion of the trial 

court’s judgment in the possession case with respect to appellant’s sentence, and remand the

possession case to the trial court for a new punishment hearing.

DO NOT PUBLISH

TEX. R. APP. P. 47 

180250F.U05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CHRISTOPHER ROGERS, Appellant

No. 05-18-00250-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. F17-34648-Q.

Opinion delivered by Justice Schenck. 

Justices Brown and Pedersen, III 

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 6th day of May, 2019.
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CHRISTOPHER ROGERS, Appellant

No. 05-18-00251-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. F16-550515-Q.

Opinion delivered by Justice Schenck. 

Justices Brown and Pedersen, III 

participating.

Based on the Court’s opinion of this date, the portion of the judgment of the trial court with 

respect to Christopher Rogers’ conviction is AFFIRMED, the portion of the judgment with 

respect to Christopher Rogers’ sentence is VACATED, and the cause REMANDED for a new 

punishment hearing.

Judgment entered this 6th day of May, 2019.