Octavio Reyes-Garcia v. State

Affirmed and Memorandum Opinion filed February 25, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-00456-CR

OCTAVIO REYES-GARCIA, Appellant

V. THE STATE OF TEXAS, Appellee On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 1538658

MEMORANDUM OPINION

Appellant Octavio Reyes-Garcia pleaded guilty to and was convicted of aggravated sexual assault of a child. Appellant was originally charged with continuous sexual assault of a child, but pursuant to an agreement with the State, appellant pleaded guilty to the lesser offense and true to a punishment enhancement allegation based on a prior felony conviction. In two issues, appellant contends that the trial court erred in considering an enhanced punishment range because (1) the State never pleaded the punishment enhancement allegation and (2) the prior felony conviction was not “shown on the trial” as required by statute because there was no trial in this case. Concluding that appellant failed to preserve his first issue and the guilty plea proceedings here constituted a trial, we affirm.

Pleading Requirement

As stated, appellant was charged by indictment with continuous sexual assault of a child. The indictment did not contain an enhancement paragraph. Pursuant to an agreement with the State, appellant pleaded guilty to aggravated sexual assault of a child and true to a punishment enhancement allegation that he was previously convicted of assault on a public servant. If appellant had been convicted of the original charge of continuous sexual assault of a child, he would have faced a punishment range of 25 years to 99 years or life and would not have been eligible for release on parole. See Tex. Gov’t Code § 508.145(a); Tex. Penal Code § 21.02(h). The offense that appellant pleaded guilty to, aggravated sexual assault of a child, even enhanced by the prior conviction, carried a lesser punishment range of 15 years to 99 years or life and does not exclude the possibility of being paroled. See Tex. Penal Code § 12.42(c)(1); 22.021(e).

Relying on the Court of Criminal Appeals’ opinion in Brooks v. State, appellant complains, however, that the State never pleaded the punishment enhancement allegation in any form. 957 S.W.2d 30 (Tex. Crim. App. 1997). In Brooks, the Court explained that while an enhancement allegation based on a prior conviction “need not be pled in the indictment,” it “must be pled in some form.” Id. at 34. We have previously held, and it appears to be well-established, that a “Brooks Notice” complaint must be preserved in the trial court before it can be raised on appeal. Sanchez v. State, 595 S.W.3d 331, 335 (Tex. App.—Houston [14th Dist.] 2020, no pet.); see also Ex parte Parrott, 396 S.W.3d 531, 538 n.9 (Tex. Crim. App. 2013) (“An inadequate-notice complaint is forfeited if not preserved at trial.”); Pelache v. State, 324 S.W.3d 568, 575 (Tex. Crim. App. 2010) (assuming issue was preserved and affirming on the merits); Ketchum v. State, 199 S.W.3d 581, 592-93 (Tex. App.—Corpus Christi 2006, pet. ref’d) (holding defendant failed to preserve Brooks Notice issue). See generally Tex. R. App. P. 33.1(a) (providing that generally, appellate complaints must be preserved in the trial court by a timely and sufficiently specific request, objection, or motion).

Here, appellant did not raise any objection in the trial court to the use of a prior conviction to enhance the punishment range without the enhancement allegation being pleaded in some form. To the contrary, appellant appears to have entered an agreement with the State under which he pleaded guilty to a lesser offense than that in the indictment and true to the enhancement allegation. Appellant has therefore not preserved a Brooks Notice complaint for our review. See Sanchez, 595 S.W.3d at 335.1 Accordingly, we overrule appellant’s first issue.

“Shown on the Trial”

In his second issue, appellant contends the trial court erred in considering an enhanced punishment range because the prior felony conviction was not “shown on the trial” as required by Penal Code section 12.42(c)(1), which states in full:

If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.

Tex. Penal Code § 12.42(c)(1).

Appellant asserts that there was no trial here but cites no authority suggesting that guilty plea proceedings before a trial court are not a trial for purposes of section 12.42(c)(1). To the contrary, the Court of Criminal Appeals has made it clear that guilty plea proceedings are trials under Texas law. See Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim. App. 2012); Murray v. State, 302 S.W.3d 874, 879-880 (Tex. Crim. App. 2009); see also Kennedy v. State, 450 S.W.3d 571, 576 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Because the premise of appellant’s argument is incorrect, we find no merit in his argument and overrule the second issue.

We affirm the trial court’s judgment. not). Appellant’s sole complaint here is that the State failed to plead the enhancement allegation in some form; this is a complaint about notice that needed to have been but was not preserved below.

/s/ Frances Bourliot

Justice Panel consists of Justices Wise, Bourliot, and Spain.

Do Not Publish — TEX. R. APP. P. 47.2(b).