Clinton Ray Curtis v. State
13-16-00466-CR
| Tex. App. | Jul 27, 2017Background
- Clinton Ray Curtis was charged with state-jail felony theft under Tex. Penal Code §31.03(e)(4)(D) based on two prior theft convictions alleged in the indictment.
- One day before trial the State moved to amend the indictment to correct errors in the descriptions of the two prior convictions; the trial court allowed the amendment.
- The court offered Curtis a ten-day continuance to respond to the amended indictment; Curtis declined the continuance.
- The case proceeded to trial the next day; a jury convicted Curtis of state-jail felony theft.
- At punishment the trial court sentenced Curtis to 20 years as a habitual felony offender and ordered that sentence to run consecutively to a prior 30-year sentence (cause no. 09-10-11006) for which Curtis was on parole at the time of trial.
- The State conceded, and the Court agreed, that the consecutive order conflicted with controlling precedent because Curtis’s parole had not been revoked before sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State’s one-day-before-trial motion to amend the indictment violated art. 28.10 because Curtis lacked time to respond | State: Article 28.10 permits amendment any time before trial; court provided opportunity for 10-day continuance which Curtis declined | Curtis: He lacked sufficient notice and time to respond to the amendment | Amendment was permitted under art. 28.10; Curtis was offered a continuance and declined — claim overruled |
| Whether the trial court erred by ordering Curtis’s 20-year sentence to run consecutively with his earlier 30-year sentence while Curtis was on parole | State: Initially allowed consecutive sentencing but conceded error after Byrd; asked modification | Curtis: Consecutive sentencing improper because his parole had not been revoked before sentencing | Consecutive sentence impermissible where parole had not been revoked; judgment modified to run sentences concurrently |
Key Cases Cited
- Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) (indictment provides notice so defendant can prepare an effective defense)
- Garcia v. State, 981 S.W.2d 683 (Tex. Crim. App. 1998) (same principle regarding notice and indictment)
- Byrd v. State, 499 S.W.3d 443 (Tex. Crim. App. 2016) (if parole on prior offense is not revoked before sentencing for subsequent offense, the second sentence may not be stacked/consecutive)