Ivan Angel Mares v. State, 05-14-00454-CR

Defendant Ivan Angel Mares was tried for unlawful possession of a firearm by a felon for conduct on December 4, 2012; jury convicted him and the trial court assessed five years’ confinement.
On the first day of trial the State filed a notice of intent to enhance punishment based on a May 4, 2009 conviction for unlawful possession of a firearm by a felon; defense objected the notice was untimely and constituted legal surprise.
The trial court overruled the objection; Mares did not request a continuance and proceeded to trial (and later pleaded “true” to the prior conviction at punishment).
A certified copy of the May 4, 2009 judgment was admitted without objection; the trial court found the enhancement true and enhanced punishment under Tex. Penal Code § 12.42(a) (raising the offense grading to a second-degree felony).
On appeal Mares argued the late enhancement notice deprived him of the opportunity to investigate, prepare a defense to the enhancement, or consider plea options; he did not claim any defense to the prior conviction itself.
The Court of Appeals concluded the late notice did not impair Mares’s ability to defend the enhancement (no continuance requested, Mares had acknowledged the prior conviction at guilt phase and pleaded true), affirmed the conviction but modified the written judgment to correct the statute number to § 46.04 (Unlawful Possession of a Firearm).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of enhancement notice	State: notice given at trial was sufficient under due process; defendant had opportunity to contest	Mares: notice filed day of trial was untimely, prejudiced him by denying time to investigate or prepare defense or consider plea	Court: Overruled Mares’s objection; notice at start of trial/punishment phase was adequate because Mares showed no impairment, did not seek continuance, and pleaded true

Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997) (notice of intent to use priors must be given but need not be in indictment)
Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006) (due process does not require notice before guilt phase; timing evaluated by whether defense was impaired)
Oyler v. Boles, 368 U.S. 448 (U.S. 1962) (timing of notice does not automatically violate due process)
Pelache v. State, 324 S.W.3d 568 (Tex. Crim. App. 2010) (appellate review asks whether timing of enhancement notice impaired preparation of defense)
Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013) (no requirement that notice be given prior to trial)
Mayfield v. State, 219 S.W.3d 538 (Tex. Crim. App. 2007) (notice at beginning of punishment phase can satisfy due process if defendant shows no need for continuance)