holding that although a defendant is entitled to notice of the State's intent to seek a special finding of deadly weapon, the notice need not be included in the indictment, and noting that the "failure to prove the special plea will not affect sufficiency of evidence going to the primary offense"
How later courts described this case
- holding that although a defendant is entitled to notice of the State's intent to seek a special finding of deadly weapon, the notice need not be included in the indictment, and noting that the "failure to prove the special plea will not affect sufficiency of evidence going to the primary offense"
- holding that because deadly weapon finding, which affects parole eligibility, impacts defendant’s liberty interest, due course of law requires State to give notice of intention to pursue deadly weapon finding
- holding that State's failure to notify defendant of intent to seek deadly weapon finding precluded trial court from authorizing jury to answer special issue regarding defendant's use of deadly weapon
- holding that submission of the special issue “cannot vitiate the conviction and sentence, for it did not impact upon the class=Section6> determination of applicant’s guilt or length of sentence.”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Ex Parte Beck, 1989 Tex. Crim. App. LEXIS 58 (1989)
740 S.W.2d 766, 775 (Tex. Crim. App. 1987) (“This provision gives statutory substance to the right conferred in Article I, § 10 of the Texas Constitution to have a grand jury screening before a person may ‘be held to answer for a criminal offense’ of the magnitude of felony.”), overruled on other grounds by Ex Parte Beck, 769 S.W.2d 525
Overruled implicitly by Grettenberg v. State, 1990 Tex. Crim. App. LEXIS 74 (1990)
Grettenberg implicitly overruled Ex parte Patterson, 740 S.W.2d 766 (Tex. Cr.App.1987), and Luken v. State, 780 S.W.2d 264 (Tex.Cr.App. 1989), regarding the giving of notice to the accused.
The opinion
MILLER, Judge,
concurring.
I agree with the majority that applicant should be given notice that the State seeks an affirmative finding on whether applicant used or exhibited a deadly weapon during the commission of the alleged offense. I would, however, also base this finding on the same rationale which requires pleading enhancement allegations for punishment purposes and not solely on the analysis employed by the majority.
It has been well established since Long v. State, 36 Tex. 6 (1871), that every circumstance constituting a statutory offense which would affect the degree of punishment must be pled in the indictment. Long, supra, was the first case which en-grafted upon the statutory scheme of pleading a court imposed requirement that it was necessary to place allegations that the defendant had previously been convicted of a like offense in the indictment before the State could avail itself of the enhanced punishment provisions of the Penal Code.
The Long decision was based upon the necessity of the State proving that the defendant had prior convictions which were final in order to enhance the defendant’s punishment. The Court stated that holding to the contrary would “cut away so much of the pillars of our liberty, which consists in the right of every man to have presented to him an accusation before he is called upon for a defense.” Id. at 10 . The Long holding reflects the concern of the Court that the defendant have adequate knowledge of the accusation against him so that he may prepare a defense.
As previously stated, the principle announced in Long, supra, is based upon the idea of notice. An accused is entitled to proper notice of any prior conviction which the State seeks to use whether it be an element of the offense or for enhancement of punishment. See Rogers v. State, 168 Tex.Cr.R. 306 , 325 S.W.2d 697 (1959), and Parasco v. State, 165 Tex.Cr.R. 547 , 309 S.W.2d 465 (1958). These pleadings requirements inform the accused of the nature and cause of the accusation against him. See Coleman v. State, 577 S.W.2d 486 (Tex.Cr.App.1979), and Bevins v. State, 422 S.W.2d 180 (Tex.Cr.App.1967).
Although I believe that the rationale of Long, supra, and subsequent cases, see infra, support the conclusion concerning notice reached by this Court today, I agree with the majority that notice of the State’s intention to seek an affirmative finding on the issue of use or exhibition of deadly weapon is not, in this day and time, required to be in the indictment, necessarily. Adequate and timely notice evidenced in the record in some other manner should suffice, although a separate paragraph in the indictment (or addition to it under Art. 28.10, V.A.C.C.P.) 1 would seem adequate, *779 if not preferable. With these additional comments, I join the majority opinion.
CAMPBELL and WHITE, JJ„ join.
. Article 28.10, V.A.C.C.P. (Supp.1985) states:
(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 *779 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.