Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-25-00400-CR Kevin Keith Bernander, Appellant v. The State of Texas, Appellee On appeal from the 278th Judicial District Court, Walker County, Texas Tracy Sorensen, presiding Trial Court Cause No. 30439 CHIEF JUSTICE JOHNSON delivered the opinion of the Court. MEMORANDUM OPINION A jury found Appellant, Kevin Keith Bernander, guilty of the state jail felony offense of possession of controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). The trial court found the enhancement paragraphs to be true and assessed punishment at five years’ confinement in the penitentiary and sentenced him accordingly. This appeal ensued. We will affirm. Bernander v. State Page 1 A. Background Bernander was indicted for the offense of possession of controlled substance (hereafter styled the primary offense). The indictment contained two enhancement paragraphs. The first enhancement paragraph stated: “AND IT IS FURTHER PRESENTED that, prior to the commission of the [primary] offense,...on the 28th day of January, 1992, in Cause Number 90- 314-K368,...the defendant was finally convicted of the felony offense of Delivery of Marihuana.” Before trial, the State filed a motion to amend the indictment’s first enhancement paragraph to reflect a final conviction date of July 28, 1992, rather than January. Nothing in the record indicates that Bernander opposed the change, and the trial court granted the State’s motion. After the jury found Bernander guilty, the trial court held a sentencing hearing and read the enhancement paragraph to Bernander as follows: THE COURT: All right, sir. I’m going to ask you how you plead to the enhancement paragraphs. So let me go over them with you. In your indictment, Enhancement No. 1 states that you were charged and convicted of the offense of delivery of marijuana out of Williamson County for an offense that occurred on January 28th of 1992. Do you plead true or not true to that enhancement? Bernander v. State Page 2 THE DEFENDANT: Not true, your Honor. THE COURT: As to Enhancement No. 2, it reads that you were convicted of the offense of robbery on May 6th, 2005, in Travis County, Texas. How do you plead to that enhancement, true or not true? THE DEFENDANT: Not true, your Honor. During the punishment hearing, the State introduced evidence of a prior conviction for delivery of marihuana in cause number 90-314-K368 on July 28, 1992. B. Analysis In Bernander’s sole issue, he argues that the evidence was insufficient to support the trial court finding the first enhancement paragraph true. Specifically, he contends that the State failed to provide sufficient evidence of a final felony conviction on January 28, 1992, as alleged originally in the first enhancement paragraph. The State responded that the language of the first enhancement paragraph “was amended…to reflect the correct final conviction date of July 28, 1992,” and therefore the evidence was sufficient to support the trial court’s true finding. Bernander then argued that even though the State filed a motion to amend the first enhancement paragraph and the motion was granted, the trial court read the first enhancement paragraph as originally Bernander v. State Page 3 alleged, and therefore the State was required to prove the date of conviction was January 28, 1992. The purpose of an enhancement paragraph is to give defendants notice of the earlier convictions that the State will use for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). Here, the trial court granted the State’s filed motion to change the original enhancement paragraph to include the correct date before the trial began, therefore fulfilling the purpose of an enhancement paragraph by giving the defendant notice of the specific prior offense that the State planned to prove during the sentencing hearing. However, when the trial court read the first enhancement paragraph, the court read the January conviction date from the original enhancement paragraph. We will assume without deciding that the January conviction date as read by the trial court controls here. This results in a variance between the enhancement paragraph with a January conviction date and the proof presented at trial supporting a July conviction date. To determine whether the trial court made a reversible error when it found the first enhancement paragraph to be true, we must determine whether the variance in final conviction dates was material and fatal. Benton v. State, 770 S.W.2d 946, 948 (Tex. App.—Houston [1st Dist.] 1989, no writ) (finding that an immaterial variance in an enhancement paragraph was not sufficient for reversal). Courts have held the discrepancy between the date in the allegation and the date in Bernander v. State Page 4 the State’s proof is not fatal. Benton, 770 S.W.2d at 947-948. Additionally, a variance between the enhancement paragraph in the indictment and the proof presented at trial is material and fatal only if defendant shows surprise or prejudice. Freda v. State, 704 S.W.2d 41, 43 (Tex. Crim. App. 1986). The original enhancement paragraph correctly alleged the cause number of the earlier offense, the convicting court and county, the name of the offense, and that the offense was a felony. Bernander does not argue or show that the variance in the date surprised, misled, or otherwise harmed him. Accordingly, we conclude that there was no fatal variance between the enhancement paragraphs and the State’s proof. Therefore, we overrule Bernander’s sole issue. C. Conclusion Having overruled Bernander’s sole issue on appeal, we affirm the trial court’s judgment. MATT JOHNSON Chief Justice OPINION DELIVERED and FILED: September 30, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do not publish CR25 Bernander v. State Page 5