author: HERVEY, J.,

text:
    Eric Simon PELACHE, Appellant, v. The STATE of Texas.
    No. PD-1277-09.
    Court of Criminal Appeals of Texas.
    Nov. 3, 2010.

      Dale Robertson, Brownsville, for Appellant.
    Lane Haygood, Asst. Dist. Atty., Brownsville, Jeffrey L. Van Horn, State’s Atty., Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

In this case, the court of appeals decided that the State’s April 23, 2008 post-guilt, pre-punishment-phase notice to appellant of the State’s intent to enhance appellant’s punishment with an aggravated-robbery conviction violated appellant’s federal constitutional due-process rights “to know the nature of the charges he is accused of and the consequences of a conviction before jeopardy attaches.” We decide that appellant’s federal constitutional due-process rights were not violated.

Appellant was charged in an indictment with the second-degree felony offense of robbery. The indictment contained an enhancement “count” alleging that appellant had previously been convicted of an aggravated robbery on September 7, 2000. This made appellant, if convicted of the robbery offense, subject to a first-degree-felony punishment range of five to 99 years or life with a possible fine not to exceed $10,000. Appellant rejected the State’s plea-bargain offer to plead guilty to a reduced state-jail felony charge of theft from a person in exchange for a recommended sentence of two-years’ confinement in a state jail.

On April 15, 2008, appellant went to trial on the robbery indictment. A convenience-store clerk identified appellant as the person who came into the convenience store where she was working and demanded the money that was in the cash register. The clerk testified that appellant had one hand in his pocket which made her think that appellant had a weapon causing her to fear for her life. On April 18, 2008, a jury convicted appellant of the lesser-included, state-jail felony offense of theft from a person. Appellant’s punishment hearing was set for May 2, 2008, when the trial court would assess appellant’s punishment.

On April 23, 2008, the State, in the form of a motion for enhancement and request for leave of court to amend the indictment, notified appellant of its intent to use two more prior felony convictions for enhancement purposes, both also occurring on September 5, 2000 (another aggravated-robbery conviction and a state-jail felony conviction for possession of a controlled substance). This motion cited to “TEX. PENAL CODE 12.42 and 12.35,” and it requested that appellant’s “punishment be increased to reflect the enhancements.”

On May 9, 2008, the trial court conducted a punishment hearing. At this hearing, the parties discussed whether appellant’s prior convictions could be used to enhance appellant’s sentence to a second-degree felony range. We find it necessary to set out these discussions in some detail. Just before the punishment hearing began, the following proceedings took place.

[THE STATE]: Further, I’d ask the Court to take judicial notice of the state’s motion to enhance punishment that was filed back on April 23rd of 2008. That was also given to [the defense], served on [the defense]. In regards to that state’s motion for enhancement, we are alleging three different priors, more specifically, in Cause No. 00-CR-528-D. The defendant was convicted of the offense of aggravated robbery back on September the 5th of 2000.
[THE COURT]: And that was in the enhancement paragraph.
[THE STATE]: And that also was in the enhancement paragraph in the actual indictment, but we also gave them notice again in regards to — we filed another motion for enhancement.
In addition to that motion for enhancement, we also allege another count where [appellant] was also convicted for the offense of aggravated robbery, which is a(3)(g) offense in 00-CR-522-D. That conviction also occurred back on or about September the 5th of 2007 [sic]. In addition to that, we are alleging that in 95-CR-1523-D, the same defendant was also convicted for the offense of possession of controlled substance back on September the 5th of 2007 — or 2000. I’m sorry, Judge.
Now, in regards to that, Judge, basically, I do have some case law. What I believe is applicable would be Sec. 12.35 of the Penal Code, specifically subsection (c). Basically what happens in regards to — we have a state-jail conviction with the pending aggravated robbery, one of the aggravated robberies. That would then enhance it to a third-degree felony, using that logic in 12.35(c).
And how we get there, Judge, is basically, the prior offense, the aggravated robbery is a(3)(g) offense. That (3)(g) offense, once it’s proven, will then enhance [appellant] to a third degree.
In regards to that, there’s also — I would believe that 12.42 is also applicable under subsection (a)(3). At this point in time, once you enhance them once with the aggravated robbery, you enhance them again with the second aggravated robbery. Because you have an aggravated state-jail felony, which I have case law that talks about that, — at that point in time you would be looking at a second-degree felony.

Appellant seemed to take the position that none of his prior convictions (including the September 5, 2000 aggravated-robbery conviction alleged in the enhancement “count” of the indictment) could be used for enhancement purposes and that he should be subject to a state-jail-felony punishment range because the State did not provide him with notice that it would seek to enhance his sentence if he was convicted of a lesser-included, state-jail felony offense of theft from a person. Appellant seemed to claim that the enhancement “count” in the indictment put him on notice that the State intended to enhance his sentence only under § 12.42 which, according to appellant, became inapplicable when the jury convicted him of the state-jail felony offense of theft from a person. Appellant then claimed, in the alternative, that a more appropriate sentence would be within a third-degree felony range apparently under state law.

[THE DEFENSE]: Now, my argument is that no notice was provided with regards to enhancing [appellant’s] state-jail felony from a non-aggravated state-jail felony to an aggravated state-jail felony.
And if the Court will note, their continuous argument is, they call it an enhancement. They provide me a notice of enhancement enhancing his state-jail felony, the theft from a person, to an aggravated state-jail felony, making note of the enhancement. Well, in a state-jail felony, the only way that you can enhance is under Art. 12.42, and that is not applicable in this case.
It’s my position that he is not subject to having his state-jail felony enhanced from a non-aggravated to an aggravated because the notice that has been provided by the state had been in the form of an enhancement, and that notice was done pursuant to 12.42, which is not applicable. And it’s our position that the only offense and range of punishment that you can consider in this case is basically a state-jail felony, between six to two months — between six months and two years.
In the alternative, if the Court should not agree with us, not that I’m agreeing, but the one that would fit more than what the state is arguing, that it’s a second, would be a third-degree, not a second-degree felony. We would object to that.

(Emphasis supplied).

The State responded that appellant had sufficient notice of its enhancement allegations because case law “says you just have to give it to them prior to punishment, which it has been in this case.”

[THE STATE]: If I could just have a chance to rebut that argument. In regards to notice, Judge, on the face of the indictment there was an enhancement count in regards to 00-CR-52B-D, the aggravated robbery. In addition, notice was given again on state’s motion to enhance punishment that was filed back on April 23rd of 2008, that alleged not only just that enhancement count, but the additional enhancement — the two other additional enhancement counts, again, in 00-CR-522-D and 95-CR-1523-D.
In regards to that, [the defense] says that there is no notice that, basically, we’re filing under 12.42, but here, Judge, if I may approach, it’s under 12.45 [sic] and 12.42, which is clearly marked in the motion. But there is no bright-line rule, Judge, in regards to giving [the defense] notice in regards to a motion to enhance punishment. I have case law that has said that you just have to give it prior to punishment. Here, that’s April 23rd, which is prior to punishment. Therefore, he’s been served with a copy. I can give you the case law. There’s no— again, no bright-line rule. There’s actually case law that rejects a ten-day rule, and it says you just have to give it to them prior to punishment, which it has been in this case. I think [the defense] acknowledges that.

After clarifying the State’s statutory theory for enhancing appellant’s sentence to a second-degree felony range (see footnote 12), the trial court indicated that it would make a ruling after the State presented its punishment evidence and after it reviewed case law provided by the State. Immediately after this, more discussion occurred on whether appellant’s sentence could be enhanced to a second-degree felony range under the applicable state statutes.

[THE DEFENSE]: If I might just add on that exact point, Judge, if Your Hon- or will examine 12.42, there are certain points in 12.42 where a sequential—
[THE COURT]: Is required.
[THE DEFENSE]: — is required, but in this particular subsection, it’s not required. So I would just also point that out.
[THE COURT]: Well, it doesn’t really clarify it. That’s why I’m asking if the case law does, because it just says “If it is shown on the trial of a state-jail felony punishable under Sec. 12.35(c) ... that the defendant has been once before convicted of a felony, on conviction, he shall be punished for a second-degree felony.” Now, what made it aggravated was the fact that he had a prior aggravated robbery, which was on the indictment. But I need to make sure that that enhancement making it an aggravated felony—
[THE STATE]: It would be aggravated state-jail felony, Judge.
[THE COURT]: An aggravated state-jail felony can be used. with another enhancement where he was sentenced on the same day to that jail time.
And you’re saying that this [case law] clarifies that, and that’s what I’m saying. If this clarifies that, then I don’t have a problem with the concept, but I want to make sure that it is clarified.

At the close of the punishment hearing, the parties again addressed whether appellant’s sentence could be enhanced to a second-degree felony range. Appellant again seemed to claim that none of his prior convictions (including the September 5, 2000 aggravated-robbery conviction alleged in the enhancement “count” of the indictment) could be used for enhancement purposes and that he should be subject to a state-jail-felony punishment range because the State did not provide him with notice that it would seek to enhance his sentence if he was convicted of a lesser-included, state-jail felony offense of theft from a person. Appellant also again claimed in the alternative that a more appropriate sentence would be within a third-degree felony range “based on Art. 12.35(c).”

[THE DEFENSE]: Your Honor, I would like to first address the range of punishment.
It is our position that [appellant] was convicted not of robbery, but theft from a.person,—
[THE COURT]: Right.
[THE DEFENSE]: — which is a non-aggravated state-jail felony.
[THE COURT]: Which is a state-jail felony; okay.
[THE DEFENSE]: Non-aggravated.
[THE COURT]: Right.
[THE DEFENSE]: That’s important. And the notice that was given to [appellant] in the indictment, and also in the subsequent motions that have been filed,—
[THE COURT]: Based on the fact that he was indicted for robbery, and that the jury came back with a lesser-included. All right.
[THE DEFENSE]: But my point is that the notice provided to him was that it was an enhancement, and it’s—
[THE COURT]: To a robbery.
[THE DEFENSE]: Right.
[THE COURT]: Not to the theft of [sic] person.
[THE DEFENSE]: Not to the theft from a person.
[THE COURT]: But the jury found him guilty of the theft of [sic] a person, which was a lesser-included of the indictment. Go ahead.
[THE DEFENSE]: And my argument is that that is not proper notice to [appellant] because he was not given notice that in the event he was found guilty of a non-aggravated state-jail felony, that the state would be seeking to not enhance, but to enhance the level of the offense from a non-aggravated to an aggravated state-jail felony. So because of that lack of notice, it is our position, Your Honor, that the range of punishment that he’s subjected to is not less than six months in a state-jail facility and not more than two years in a state-jail facility.
If the . Court is not inclined to follow my argument, then it is my position that the non-aggravated state-jail felony that he was convicted of may be enhanced to a third-degree felony, but not more than a third-degree felony. That’s based on Art. 12.35(c), which states the following: “An individual adjudged guilty of a state-jail felony shall be punished for a third degree if it is shown on the trial of the offense that a deadly weapon, as defined by Sec. 107 [sic], was used or exhibited.”

After the trial court stated that it was “inclined to agree with the state,” appellant alternatively argued that his sentence should not be enhanced to more than a third-degree felony range under state law because there was “only one [prior] conviction, really” since the convictions “occurred on the same date.”

[THE COURT]: Okay. I’m going to— I’m looking at the case law they’ve given me, and according to the case law, “There is no requirement that a prior felony conviction used to enhance punishment for a state-jail felony to a second-degree felony punishment under a statute permitting such enhancement if defendant has been once before convicted of a felony be final prior to the commission of the additional prior (3)(g) felony used for initial enhancement of punishment for the primary state-jail felony to the third-degree felony punishment, although both the prior convictions for the (3)(g) felony and the once [sic] before convicted felony must be final before the commission of the primary state-jail felony.” And both of these were final felony prior convictions prior to the commission of the state-jail. So I am inclined to agree with the state that it is a second-degree, and that the enhancement is good.
[THE DEFENSE]: We would object to that finding. It is our position that this is a matter that should be enhanced, if any, to a third-degree. The convictions that the state is relying upon are two convictions that occurred on the same date, that were prosecuted on the same date, and that were sentenced on the same date. Therefore, they are not pri- or — there’s only one conviction, really, that there is because they occurred as a result of one criminal transaction, and he was sentenced pursuant to one criminal proceeding. Therefore, they are not separate convictions; they are one.

The trial court sentenced appellant to the maximum second-degree-felony sentence of twenty years in prison.

[THE COURT]: I’m going to find that this is enhanced to a second-degree, two to twenty, and I’m going to sentence your client at this time to twenty years in the Texas Department of Criminal Justice, Institutional Division. I’ll give him credit for any and all jail time he’s already served. And I will note your objection.

Citing to the foregoing emphasized portions of appellant’s objections just before the punishment hearing began, the court of appeals, with one justice dissenting, decided that appellant preserved the claim that the State’s April 23, 2008 enhancement notice was untimely and violated due process because appellant’s “specific grounds were apparent from the context.” See Pelache v. State, 294 S.W.3d 248, 250 n. 2 (Tex.App.-Corpus Christi 2009). The court of appeals also decided that appellant’s due-process rights were violated when his sentence was enhanced with the aggravated-robbery conviction (cause no. 00-CR-522-D) set out in the State’s April 23, 2008 enhancement notice See Pelache, 294 S.W.3d at 252. The court of appeals reversed the trial court’s sentence and remanded the case for a new punishment hearing with instructions “to assess a punishment without regard to the two improperly noticed enhancement allegations” set out in the State’s September 23, 2008 enhancement notice. See Pelache, 294 S.W.3d at 253.

We granted review of the following two grounds in the State’s petition for discretionary review:

1. Did the appellant properly preserve error in failing to object to the motion to enhance punishment on the grounds of due process?
2. Did the court of appeals correctly hold that appellant’s due process rights were violated when the State filed a motion to enhance punishment two days before the punishment phase of trial?

We will decline to address the State’s first ground for review and will assume that appellant preserved a claim that it violated due process for the State to enhance his sentence with the September 5, 2000 aggravated-robbery conviction (cause no. 00-CR-522-D) set out in the State’s April 23, 2008 motion for enhancement. Addressing what it considered to be the merits of the federal constitutional due-process claims presented in appellant’s brief, the court of appeals decided that the “basic due process violation in this case is of [appellant’s] right to know the nature of the [enhancement] charges he is accused of and the consequences of a conviction before jeopardy attaches.” See Pelache, 294 S.W.3d at 252. The court of appeals further suggested that this notice must be provided “prior to trial.” See id. (emphasis in original). It is well settled, however, that due process does not require pretrial notice “that the trial on the substantive offense will be followed by an habitual criminal proceeding.” See Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) (“a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense”); Villescas v. State, 189 S.W.3d 290, 294 (Tex.Crim.App.2006) (“when a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution”).

In Oyler v. Boles, the United States Supreme Court addressed the due-process requirements in relation to notice of enhancement allegations. In that case, the defendants were sentenced to mandatory life sentences pursuant to West Virginia’s “three strikes” enhancement scheme. See Oyler, 368 U.S. at 449, 82 S.Ct. 501. The enhancements were set out by “information filed ‘immediately upon conviction and before sentence.’ ” See id. The defendants argued that their due-process rights were violated by depriving them of notice sufficient to afford them the opportunity to prepare for and defend against the enhancement allegations. See id. The Supreme Court rejected the defendants’ claims and approved of the practice, even though notice was “first brought home to the accused when, after conviction on the substantive offense but before sentencing, the [enhancement] information [was] read to him in open court....” See Oyler, 368 U.S. at 450-51, 82 S.Ct. 501. The Supreme Court held that while some form of notice was required, the notice did not have to be given in advance of trial. See Oyler, 368 U.S. at 452, 82 S.Ct. 501 (“a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense”).

In addition, this Court addressed the issue of proper notice in Villescas, 189 S.W.3d at 290. In that case, the State gave notice of its intent to use enhancements six days before trial. See Villescas, 189 S.W.3d at 291. At the punishment hearing, the defendant objected that the notice was untimely. See id. During the hearing, the State offered a set of the defendant’s fingerprints to be used to compare with those found on the prior felony convictions. See id. The defendant expressed confusion about the fingerprint comparison and claimed that defense counsel had not explained the process to him. See id. The proceedings were postponed for a week. See id. When the hearing commenced, defense counsel acknowledged that the defendant now understood the comparison process, but neither the defendant nor his counsel requested more time to prepare a defense. See Villescas, 189 S.W.3d at 292. On review, this Court found that “notice of enhancements only-had to satisfy constitutional safeguards” and upheld the trial court’s judgment that notice to the defendant was sufficient. See Villescas, 189 S.W.3d at 295. Thus, for purposes of conducting a due-process analysis, the determination of whether proper notice of enhancements was given does not require that notice be given within a particular period of time before trial or before the guilt phase is completed. See Villescas, 189 S.W.3d at 294.

The issue of whether appellant’s sentence can be enhanced should not turn on whether he was convicted of the greater charged offense or of a lesser-included offense of this charged offense. The issue is whether appellant received sufficient notice of the enhancements so that he had an opportunity to prepare a defense to them. And we see no reason why a different rule should apply in cases such as this where a defendant is convicted of a lesser-included offense of the charged offense. Finally, the parties have not cited any authorities or advanced any arguments why a different rule should apply in these circumstances.

An application of the aforementioned cases leads us to conclude that the State’s April 23, 2008 enhancement notice was sufficient to put appellant on notice of “the nature of the [enhancement] charges he [was] accused of.” In determining whether appellant received sufficient notice of the State’s intent to enhance punishment, we look to the record to identify whether appellant’s defense was impaired by the timing of the State’s notice. Similar to the defendants in Oyler and Villescas, appellant did not request a continuance, appear surprised by the allegations, or argue that he was unprepared to defend against the prior conviction allegations. In fact, we have held that “when a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution.” See Villescas, 189 S.W.3d at 294.

The court of appeals seems also to have decided that it violated due process that, when appellant rejected the State’s plea-bargain offer before jeopardy attached to the robbery offense, appellant had no notice that his sentence could be enhanced with other prior convictions, in addition to the one alleged in the enhancement “count” in the indictment, in the event that he was convicted of the lesser-included, state-jail-felony offense of theft from a person. See Pelache, 294 S.W.3d at 252 (a basic due-process violation in this case was appellant’s right to know “the consequences of a conviction before jeopardy attaches”); see also Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (penal statute required to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited”); Cuellar v. State, 70 S.W.3d 815, 822 (Tex.Crim.App.2002) (a person is entitled to be informed of what the law commands or forbids). We note that, when appellant rejected the State’s plea-bargain offer, appellant had actual notice that the State would seek to enhance his sentence with at least one prior conviction. We also note that the applicable statutes did inform appellant, before he rejected the State’s plea-bargain offer and before jeopardy attached to the robbery offense, that he was subject to sentence enhancement with any other prior convictions under § 12.35(c)(2)(A) and under § 12.42(a)(3) in the event that he was convicted of the lesser-included, state-jail-felony offense of theft from a person. See Ex parte McCurry, 175 S.W.3d 784, 785 n. 1 (Tex.Crim.App.2005) (applicable statutes put inmate on notice that a parole panel could impose as a condition of mandatory supervision any condition that a court may impose on a defendant placed on community supervision). The State’s second ground for review is sustained.

The judgment of the court of appeals is reversed, and the case is remanded there for further proceedings not inconsistent with this opinion.

MEYERS, J., dissented.

      . Pelache v. State, 294 S.W.3d 248, 252 (Tex.App.-Corpus Christi 2009).

      . See § 29.02(a)(2) & (b), Tex Penal Code.

      . The record reflects that appellant was convicted of this aggravated-robbery offense on September 5, 2000, and that the judgment was signed on September 7, 2000.

      . See § 12.42(b), Tex. Penal Code.

      . See § 12.32, Tex. Penal Code.

      . See § 31.03(e)(4)(B), Tex. Penal Code.

      . The record reflects that appellant rejected this offer even after his attorney advised him that he faced a possible life sentence if convicted of the robbery offense with a finding that he also committed the aggravated-robbery offense that was alleged in the enhancement "count” in the indictment.

      . At this time, with the enhancement "count” in the indictment having alleged a prior September 5, 2000 aggravated-robbery conviction, appellant was subject to a third-degree-felony punishment range of two to ten years and a possible fine not to exceed $10,000. See § 31.03(e)(4)(B) (providing that theft from a person is a state-jail felony); § 12.35(c)(2)(A), Tex. Penal Code (providing that a person convicted of a state-jail felony shall be punished for a third-degree felony if the person has previously been convicted of a § 3g(a)(l) offense under Article 42.12 of the Code of Criminal Procedure); Article 42.12, § 3g(a)(l)(F), Tex.Code Crim. Proc. (making aggravated robbery a § 3g(a)(l) offense).

      . The record reflects that the state-jail felony conviction for possession of a controlled substance was ultimately not used to enhance appellant's punishment.

      . The record reflects that the cause number for this aggravated-robbery conviction was 00-CR-523-D. This was also the cause number of the conviction alleged in the enhancement “count" in the indictment and realleged in the State’s April 23, 2008 enhancement notice.

      . See § 12.35(c)(2)(A).

      . Thus, the State’s theory was that one of appellant's September 5, 2000 § 3g(a) aggravated-robbery convictions could be used to enhance appellant’s sentence for his state-jail felony conviction for theft from a person to a third-degree felony range under Section 12.35(c)(2)(A). See § 12.35(c)(2)(A) (providing that individual convicted of state-jail felony shall be punished for a third-degree felony if it is shown that the individual has previously been finally convicted of, among other things, a § 3g(a) felony). Appellant’s other September 5, 2000 aggravated-robbery conviction could then be used to enhance appellant’s sentence to a second-degree felony range under Section 12.42(a)(3). See § 12.42(a)(3) (providing that a state-jail felony punishable under § 12.35(c) shall be enhanced to a second-degree felony range if it is shown that the defendant has once before been convicted of a felony). See generally Gowan v. State, 18 S.W.3d 305 (Tex.App.Beaumont 2000, pet. ref’d). It appears from the Clerk’s Record that a copy of the Gowan case was attached to the State’s April 23, 2008 enhancement notice. The State also cited Gowan at the punishment hearing.

      . Thus, it appears that the State may have understood appellant to have made a due-process objection based on appellant’s right to know the nature of the enhancement allegations in order to prepare a defense to them.

      . See § 12.42(a)(3).

      . The trial court later pointed out that the State was not relying on this portion of § 12.35(c) to enhance appellant’s punishment.

        . See also Pelache, 294 S.W.3d at 253-54 (Vela, J., dissenting) ("Here, Pelaehe did not object before the trial court or argue in his motion for new trial that either the notice to him that the State was seeking to enhance his sentence, or the process of enhancing his sentence violated his right to due process under either state or federal constitutional grounds. In the context in which Pelaehe lodged his objection, he did not clearly convey to the trial court 'the precise and proper application of the law as well as the underlying rationale.’ Thus, Pelaehe did not put the trial court on notice that it should consider whether enhancement of his punishment from a state-jail felony to a second-degree felony violated his right to due process. Nothing in the record suggests that the trial court was aware of Pelache's argument that enhancement of his punishment from a state-jail felony to a second-degree felony violated his right to due process.”) (citation omitted).

      . Our review of the record indicates that the State filed its enhancement notice (April 23, 2008) sixteen days 'before the punishment hearing (May 9, 2008).

      . This seems to be different from the due-process claim that appellant presented in the court of appeals. Appellant claimed in point of error five in the court of appeals that the trial court erred in sentencing him as a second-degree felon because "the notice to appellant that the State was seeking to enhance his sentence violated appellant’s right to Due Process.” Appellant claimed in point of error six drat the “process of enhancing appellant's sentence violated appellant’s right to Due Process.” In his brief, 'appellant argued that:
      [He] could not have known what allegations he was to defend against nor does he know now what allegations the trial court found to be true. The notice and process violated appellant's right to Due Process.

      . In support of this statement, the court of appeals cited to a Fifth Circuit decision in United States v. Steen, 55 F.3d 1022, 1027 (5th Cir.1995). We note, however, that Steen applied a statutory provision in the Comprehensive Drug Abuse Prevention and Control Act of 1970 that required notice of previous convictions for sentence enhancement purposes "through an information filed prior to trial.” See id. Steen, therefore, cannot be read for the proposition that this notice is also constitutionally required for purposes of federal constitutional due process.

      . In Villescas, the court of appeals applied the harm analysis for non-constitutional error under Tex.R.App. P. 44.2(b) after deciding that the State’s enhancement notice filed six days before trial was untimely. See Villescas, 189 S.W.3d at 292. Relying on statutes entitling appointed defense counsel ten days to prepare for trial and to respond to an amended indictment or information, the court of appeals essentially decided, as a matter of state law, that the State should have provided the enhancement notice ten days before trial. See Villescas, 189 S.W.3d at 292 & n. 4. This Court decided on discretionary review that the source of this notice requirement is not state law, but is "rooted in due process” and that the defendant was given constitutionally adequate notice of the State’s enhancement notice. See Villescas, 189 S.W.3d at 294-95. In Villescas, this Court stated:
      In light of our prior cases and the Supreme Court’s decision in Oyler, we conclude that the notice requirement ... is of constitutional origin, and we hold that the Court of Appeals erred in impliedly concluding otherwise. For this reason, we also disavow the appellate court’s attachment of special significance to the time period of ten days.... The ultimate question is whether constitutionally adequate notice was given. We likewise reject the appellate court’s conclusion that the relevant time period for determining proper notice is the period before trial. Under Oyler, due process does not even require that the notice be given before the guilt phase begins, much less that it be given a number of days before trial. And limiting the notice period to "before trial" ignores the possibility that the trial court could take measures to cure the notice problem by granting a continuance — an option Oyler expressly contemplates.

        See Villescas, 189 S.W.3d at 294.

      . And on this record, we must presume that appellant’s counsel advised appellant of this possibility. Cf. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002).


source: Caselaw Access Project

author: KELLER, P.J.,

license: Public Domain

text:
    Ex parte Charles John SINEGAR, Applicant.
    No. AP-76,340.
    Court of Criminal Appeals of Texas.
    Nov. 3, 2010.

      Douglas M. Barlow, Beaumont, for Appellant.
    Rodney D. Conerly, Asst. Crim. Dist. Atty., Beaumont, Jeffrey L. Van Horn, State’s Atty., Austin, for State.
   KELLER, P.J.,

delivered the opinion of the unanimous Court.

We hold that the requirements of Rule 18a, regarding the recusal of judges, apply in habeas proceedings conducted at the trial level and that applicant satisfied those requirements here. Consequently, we remand this case for the trial judge to rule on applicant’s motion to recuse pursuant to Rule 18a(c).

I. BACKGROUND

Applicant pleaded no contest to aggravated kidnapping and was placed on ten years’ deferred adjudication. His guilt was later adjudicated, and he was sentenced to seventy-five years in prison. Acting pro se, applicant subsequently filed a habeas application under Article 11.07. This application alleges, inter alia, that he received ineffective assistance of counsel at the adjudication hearing because counsel failed to seek the recusal of the trial judge. Applicant claims that the judge was subject to recusal because one of the allegations in the motion to adjudicate was that applicant made verbal threats against the same judge. The judge in the present habeas proceedings was also the trial judge at the adjudication hearing.

Applicant subsequently filed a “rebuttal to the State’s original answer.” This document was mailed with a cover letter and certificate of service dated October 29, 2009, and was filed-marked by the district clerk on November 2nd. In this pleading, applicant alleges, inter alia, that “this ha-beas proceeding cannot be entertained or resolved by” the trial judge because of applicant’s “allegations of bias or the semblance thereof against him.” Applicant then refers to the recusal ground in his habeas application and supporting memorandum. Applicant further requests that a recusal hearing occur with an administrative judge before the trial court issues findings of fact and conclusions of law. Although the document is not notarized, it contains applicant’s signature to a declaration, “under the penalty of perjury,” that the allegations in the document are “true and correct.”

The trial judge ordered counsel to file an affidavit by November 20th. The order states that a hearing consisting only of the affidavit would be held on that date. On the date of the hearing, the trial judge filed findings of fact and conclusions of law recommending that relief be denied.

On January 18th of this year, we determined that we needed more information and remanded the case for further fact finding. On January 25th, the district clerk received from applicant a document entitled, “motion for recusal hearing,” seeking an administrative hearing to determine whether the trial judge should be recused from further involvement in the habeas proceedings. This document alleged that the trial judge should be re-cused because of bias due to the trial judge’s perception that a threat was made against him (alleged in the State’s motion to adjudicate). On January 28th, the trial judge, deferring to this Court, entered an order that declined to address this motion:

The Court has considered a Motion for Recusal Hearing filed by Petitioner in the above styled number. The Court finds that it will not address this Motion because the case in question is pending by way of Application for Writ of Habe-as Corpus in the Court of Criminal Appeals. The Court must wait on the ruling on this application before acting on this motion.

On February 11th, the district clerk received from applicant a document entitled, “motion to disqualify and motion to re-cuse,” which reiterated the arguments from applicant’s earlier motion.

On February 24th, the trial judge requested a copy of a PSI report, to be delivered by March 5th. The trial judge also ordered an affidavit from the attorney who represented applicant at the original plea proceeding, to be delivered by March 25th. The order for the affidavit specified that a hearing consisting only of the affidavit would be held on March 25th. On March 15th, applicant filed an objection to the trial judge considering the affidavit before resolution of applicant’s pending motion to disqualify/recuse. The trial judge issued additional findings of fact on March 81st.

We subsequently filed and set this case to determine “whether the motions filed by Applicant requesting recusal or disqualification of the trial judge from the habeas proceedings complied with the requirements of Rule 18a of the Texas Rules of Civil Procedure, and if so, whether the trial court must address the motions as dictated by Rule 18a before this Court decides the other issues raised in Applicant’s writ of habeas corpus.”

II. ANALYSIS

In Arnold v. State, we held that Rule 18a applies to criminal cases. By its terms, the rule does not apply to a hearing before the Court of Criminal Appeals. And we have never explicitly held that the rule applies in habeas proceedings in the trial court. Nevertheless, we held in Arnold that Rule 18a “applies to criminal cases absent ‘any explicit or implicit legislative intent indicating otherwise.’ ” Consequently, we hold that Rule 18a applies in habeas proceedings that occur before the trial court.

Rule 18a(a) requires, inter alia, that a recusal motion be filed at least ten days before the date set for trial “or other hearing,” that the motion be verified, and that the motion state with particularity why the judge should be recused. Rule 18a(b) requires that, on the day the motion is filed, copies be served upon all other parties or their counsel of record and that the motion be accompanied by “a notice that the movant expects the motion to be presented to the judge three days after the filing of such motion unless otherwise ordered by the judge.”

All of applicant’s recusal documents were filed ten days or more before the March 25th hearing and the March 31st issuance of findings of fact. All of applicant’s recusal documents are accompanied by statements that satisfy the requirements for an unsworn declaration by an inmate. And the documents allege bias by the trial judge based on a particular threat alleged to have been made by applicant. Applicant’s documents also satisfy the same-day service requirement because they were mailed by a pro se inmate to both the clerk and the State on the same day. We have recently held that a document is considered filed by a pro se inmate on the day it is deposited with the prison or jail authorities. Appellate rule 9.5 provides that service upon a party by mail is complete upon mailing. The State contends that the document it received contains no file mark, but applicant’s certificate of service is sufficient evidence of service on the date indicated, absent rebuttal evidence from the State.

Not all of applicant’s recusal documents complied with the three-day notice provision. None of the documents specified that applicant expected to present his recusal motion in three days. His first document, the “rebuttal,” was not even titled as a recusal motion, and we have no evidence that the trial court ever perceived it as such. Although applicant’s second document, the motion for recusal hearing, also did not contain the notice, the trial judge responded to that motion in an order saying that the motion would not be addressed. Under those circumstances, we conclude that the trial court “otherwise ordered” when the motion would be presented — that is to say, not at all. We hold that applicant’s second document complied with the notice provision.

Because applicant has complied with Rule 18a, the trial judge has no option but to either recuse himself or forward the matter to the presiding judge of the administrative judicial district for a recusal hearing before another judge. We remand this case for the trial judge to do so.

      . TexJR. Civ. P. 18a.

      . Tex.Code Crim. Proc. art. 11.07.

      . All of applicant’s subsequent recusal documents contain the same declaration.

      . Ex parte Sinegar, WR-73,135-01, slip order, 2010 WL 109687 (Tex.Crim.App. Jan. 13, 2010) (not designated for publication).

      . The certificate of service to the State and the cover letter to the district clerk are dated January 22nd.

      . The certificate of service to the State and the cover letter to the district clerk are dated February 5th.

      . The certificate of service to the State and the cover letter to the district clerk are dated March 10th.

      . Ex parte Sinegar, No. AP-76,340, slip op., 2010 WL 1794960 (Tex.Crim.App. May 5, 2010) (not designated for publication). Counsel was subsequently appointed to represent applicant on this issue.

      . 853 S.W.2d 543, 544 (Tex.Crim.App.1993).

      . Tex.R. Civ. P. 18a(a).

      . Arnold, 853 S.W.2d at 544.

      . Id. If a judge is assigned to a case within ten days of trial or hearing, the motion must be filed "at the earliest practicable time prior to the commencement of the trial or other hearing.” Tex.R. Civ. P. 18a(e).

      . Tex.R. Civ. P. 18a(b).

      . Applicant’s "rebuttal,” which first mentioned recusing the trial judge in the habeas proceedings, was filed more than ten days before the trial judge’s first hearing (on November 20th) and the issuance of the initial findings of fact and conclusions of law. As we will see below, however, the "rebuttal” was deficient in other respects.

      . Bahm v. State, 219 S.W.3d 391, 393 (Tex.Crim.App.2007) (unsworn declaration requirements "are simply that the unsworn declaration must be (1) written and (2) subscribed by the person making the declaration as true under penalty of perjury”) (internal quotation marks omitted).

      . Campbell v. State, 320 S.W.3d 338 (Tex.Crim.App.2010).

      . TexR.App. P. 9.5(c)(1); see also id., R. 1.1 (appellate rules govern post-trial procedure in trial courts in criminal cases).

      . The State does not specify to which of applicant's recusal documents it is referring.

      . Tex.R.App. P. 9.5(d) (proof of service by certificate of service); In re E.A., 287 S.W.3d 1, 5 (Tex.2009) ("A certificate of service is prima facie evidence of the fact of service.”).

      . We recognize that the three-day notice requirement may pose some difficulties with respect to pro se inmates. A pro se inmate has no way of guaranteeing presentment other than to clearly label his motion as one of recusal and to ask for a hearing. Procuring presentment in exactly three days may also be difficult because there will be a lapse of time between when a pro se inmate deposits his motion with the prison authorities and when the motion is received by the clerk and the State. The question would arise, then, whether a pro se inmate can truthfully say that he expects the motion to be presented in three days, and if not, whether he should be required to make such an assertion. We need not address those difficulties in this case.


author: HERVEY, J., COCHRAN, J.,

text:
    Julian Mars MCKITHAN & Ralph Franklin Welsh, Appellants, v. The STATE of Texas.
    Nos. PD-0969-09, PD-0811-09.
    Court of Criminal Appeals of Texas.
    Nov. 10, 2010.

      Robert Morrow, The Woodlands, for Julian Mars McKithan.
    Mary B. Thornton, Forth Worth, for Ralph Franklin Welsh.
    Eric Kugler, Asst. D.A., Houston, Jeffrey L. Van Horn, State’s Attorney, Austin for Julian Mars McKithan.
    Kimberly Colliet Wesley, Asst. Crim. D.A., Fort Worth, Jeffrey L. Van Horn, State’s Attorney, Austin, for Ralph Franklin Welsh.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ„ joined.

In these consolidated cases, we address whether, under the cognate-pleadings approach of the step-one lesser-included-offense analysis set out in our decision in Hall v. State, 225 S.W.3d 524 (Tex.Cr.App.2007), offensive-contact assault is a lesser-included offense of the charged offense of bodily-injury assault in an indictment alleging bodily injury by “kicking” the complainant (Welsh) and of the charged offense of aggravated sexual assault in an indictment alleging that the complainant was compelled to submit and participate by the use of “physical force and violence” (McKithan). We also address McKithan’s claim that bodily-injury assault is a lesser-included offense of the charged aggravated-sexual-assault offense. We decide that offensive-contact assault is a not lesser-included offense of the charged offenses in Welsh and in McKithan and that bodily-injury assault also is not a lesser-included offense of the charged offense in McKi-than.

An indictment charged Welsh with committing bodily-injury assault by “kicking” the complainant (Welsh’s wife) with his foot. The trial court denied Welsh’s request for a jury instruction on the nonen-hanceable Class C misdemeanor offense of offensive-contact assault. A jury convicted Welsh of the charged third-degree felony of bodily-injury assault and sentenced him, as an habitual offender, to eighteen years in prison.

Welsh claimed on direct appeal that he was entitled to a jury instruction on offensive-contact assault as a lesser-included offense of the charged offense of bodily-injury assault. The court of appeals decided that offensive-contact assault is not a lesser-included offense of the charged bodily-injury-assault offense because, to establish that Welsh caused bodily injury to the complainant “by kicking her with his foot, the State was not required to prove that Welsh knew or reasonably should have believed that [the complainant] would regard the contact as offensive or provocative.” See Welsh v. State, No. 2-08-169-CR, slip op. at 4-5, 2009 WL 1425194 (Tex.App.-Fort Worth, delivered May 21, 2009) (not designated for publication).

McKithan was charged with aggravated sexual assault in an indictment that in six paragraphs alleged alternative manners and means of committing this offense. The first paragraph of the indictment alleged that McKithan sexually assaulted the complainant by placing his finger inside the complainant’s sexual organ and that McKithan compelled the complainant to submit and participate by the use of “physical force and violence, and by acts and words the Defendant placed the Complainant in fear that SERIOUS BODILY INJURY would be imminently inflicted on [the complainant].” (Capitalization in original). The first paragraph of McKi-than’s indictment specifically alleged:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, JULIAN MARS MCKITHAN, hereafter styled the Defendant, heretofore on or about DECEMBER 17, 2006, did then and there unlawfully, intentionally and knowingly cause the penetration of the FEMALE SEXUAL ORGAN of [the complainant], hereinafter called the Complainant, by placing A FINGER in the FEMALE SEXUAL ORGAN of the Complainant, without the consent of the Complainant, namely, the Defendant compelled the Complainant to submit and participate by the use of physical force and violence, and by acts and words the Defendant placed the Complainant in fear that SERIOUS BODILY INJURY would be imminently inflicted on [the complainant].

(Emphasis in bold and capitalization in original).

McKithan testified at trial and denied having sexual contact with the complainant, but admitted assaulting her by, among other things, “slapping and punching” her. The trial court denied his request for jury instructions on bodily-injury assault and on offensive-contact assault. A jury convicted McKithan of the charged aggravated-sexual-assault offense and sentenced him, as an habitual offender, to life in prison.

We understand McKithan to have claimed on direct appeal that he was entitled to jury instructions on bodily-injury assault and on offensive-contact assault as lesser-ineluded offenses of the charged aggravated-sexual-assault offense under the “physical force and violence” allegation in the first paragraph of the indictment. The court of appeals rejected this claim because neither “bodily injury” nor “offensive touching” are “within the elements of aggravated sexual assault as charged in the indictment, which relied on assault by threat or kidnapping as aggravating factors.” See McKithan v. State, No. 01-08-00222-CR, slip op. at 9, 2009 WL 1562888 (Tex.App.-Houston [1st Dist.], delivered June 4, 2009) (not designated for publication) (“However, we must address appellant’s contention that assault bodily injury and assault offensive touching were lesser-ineluded offenses of aggravated sexual assault as charged in the indictment. Assault bodily injury requires proof that the defendant caused bodily injury to the complainant; assault offensive touching requires proof that the defendant knew or should have reasonably believed that the complainant would regard the contact as offensive or provocative. Neither of these elements are within the elements of aggravated sexual assault as charged in the indictment, which relied on assault by threat or kidnapping as aggravating factors.”).

We granted discretionary review in these cases and consolidated them. In Welsh, we granted review of the following ground:

The Fort Worth Court of Appeals erred in holding that appellant was not entitled to an instruction on the lesser included offense of assault by contact.

In McKithan, we granted review of the following ground:

Was the Court of Appeals correct in saying assault — offensive touching — is not allowed when the indictment says the defendant used force and violence against the complainant?

Article 37.09(1), Tex.Code Crim. Proo., provides that an offense is a lesser-included offense “if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” In Hall, we adopted the cognate-pleadings approach for the first step of the lesser-included offense analysis and recognized that this approach is compatible with, and is “the better analysis” of, Article 37.09. See Hall, 225 S.W.3d at 533 (Article 37.09 is compatible with cognate-pleadings approach to lesser-included offenses) and at 535 (holding that cognate-pleadings approach is the sole test for determining in the first step whether a party may be entitled to a lesser-included-offense instruction) and at 537 (also recognizing that this is the “better analysis” of Article 37.09) and at 539 (Hervey, J., dissenting) (“The Court’s decision that Article 37.09(1) requires an examination of the statutory elements of the charged offense as they are modified by the charging instrument in determining the ‘facts required’ to establish the commission of the offense charged is consistent with the plain language of Article 37.09(1).”). We further stated in Hall that the step-one lesser-included-offense analysis must be “capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense.” See Hall, 225 S.W.3d at 535-36. We also stated in Hall that “the elements of the lesser offense do not have to be pleaded [in the indictment] if they can be deduced from the facts alleged in the indictment.” See Hall, 225 S.W.3d at 535.

In an opinion on rehearing in Ex parte Watson, we reaffirmed that Article 37.09(1) and Hall control the step-one lesser-included-offense analysis. See Ex parte Watson, 306 S.W.3d 259, 273 (Tex.Cr.App.2009) (op. on reh’g). The opinion on rehearing in Watson stated:

We now reaffirm the principle that we, at least implicitly, recognized in Hall: An offense is a lesser-included offense of another offense, under Article 37.09(1) of the Code of Criminal Procedure, if the indictment for the greater-inclusive offense either: 1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced. Both statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense should be compared to the statutory elements of the lesser offense. If a descriptive averment in the indictment for the greater offense is identical to an element of the lesser offense, or if an element of the lesser offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense, this should be factored into [the first step of] the lesser-included-offense analysis in asking whether all of the elements of the lesser offense are contained within the allegations of the greater offense.

Id. (footnotes omitted and emphasis supplied).

This emphasized language from the opinion on rehearing in Watson is based on the statement in Hall that “the elements of the lesser offense do not have to be pleaded [in the indictment] if they can be deduced from the facts alleged in the indictment.” See Hall, 225 S.W.3d at 535. Our cases have recognized that this statement from Hall approvingly describes what is essentially the “functional-equivalence concept” as a valid component of the step-one lesser-included-offense analysis set out in Hall. See Evans v. State, 299 S.W.3d 138, 143 (Tex.Cr.App.2009) (noting State’s concession “that Hall approved the use in the lesser-included-offense analysis of a concept similar to functional equivalence when it stated that ‘the elements of the lesser offense do not have to be pleaded if they can be deduced from the facts alleged in the indictment.’ ”) (emphasis added in original). The “functional-equivalence concept” requires courts to “examine the elements of the lesser offense and decide whether they are functionally the same or less than those required to prove the charged offense.” See Farrakhan v. State, 247 S.W.3d 720, 722-23 (Tex.Cr.App.2008) (internal quotes omitted and emphasis in original) and at 724 (“When it used the term ‘functional equivalence,’ the court [of appeals] employed the same two-step method of conducting such lesser-included-offense analy-ses in its opinion that we described in Hall shortly thereafter.”).

This is consistent with our decision in Salazar v. State in which we held that a habitation “inherently” provides notice that entry is forbidden for purposes of determining whether criminal trespass is a lesser-included offense of the charged burglary-of-a-habitation offense. See Salazar v. State, 284 S.W.3d 874, 875, 878 (Tex.Cr.App.2009). In other words, the indictment’s allegation in Salazar of a “habitation” was functionally equivalent to an allegation of notice that entry into the habitation was forbidden making this element of criminal trespass established by the facts required (i.e., “habitation”) to establish the charged burglary-of-a-habitation offense. See id. Thus, in cases like this, where an allegation in the indictment is not identical to an element of the lesser offense, the issue under Hall is whether the indictment’s allegation is functionally equivalent to an element of the lesser offense. See Watson, 306 S.W.3d at 273 (op. on reh’g); Evans, 299 S.W.3d at 143; Salazar, 284 S.W.3d at 878; Farrakhan, 247 S.W.3d at 722-23.

I. Is Bodily-Injury Assault or Offensive-Contact Assault a Lesser-included Offense of the Charged Offense in McKithan?

The elements of bodily-injury assault are set out in Section 22.01(a)(1) of the Penal Code, which provides that a person commits the offense of assault if the person causes bodily injury to another. The elements of offensive-contact assault are set out in Section 22.01(a)(3) of the Penal Code, which provides that a person commits the offense of assault if the person causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Initially, we note that McKithan has not claimed that the indictment’s allegation that he penetrated the complainant’s sexual organ with his finger is the functional equivalent (or requires proof) of bodily-injury assault or of offensive-contact assault. Rather, McKithan claims that these offenses may be deduced or inferred from the indictment’s “physical force and violence” allegation. McKithan argues in his brief on discretionary review that “[i]t can certainly be inferred from the indictment’s allegation that [McKithan] used physical force and violence against the complainant that he caused her pain — one definition of bodily injury” in Section 1.07(a)(8) of the Penal Code and that “he would know that the complainant would find such contact offensive or provocative.”

McKithan’s arguments are based on the language from the opinion on rehearing in Watson that it is relevant to the step-one lesser-included-offense analysis under Hall “if an element of the lesser offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense.” McKithan’s arguments, however, read too much into this statement from the opinion on rehearing in Watson, which, as we have already discussed, describes what is essentially the “functional-equivalence concept” as a valid component of the step-one lesser-included-offense analysis under Hall. See also Evans, 299 S.W.3d at 143; Salazar, 284 S.W.3d at 878; Farrakhan, 247 S.W.3d at 722-24. The issue under Hall and Watson is not whether bodily-injury assault or offensive-contact assault may be deduced or inferred from the indictment’s allegation that McKithan used “physical force and violence” but whether this allegation in the indictment is functionally equivalent to an allegation of bodily-injury assault or to an allegation of offensive-contact assault (i.e., whether, in establishing the “physical force and violence” allegation in the indictment, the State was required to prove bodily-injury assault or offensive-contact assault).

And we believe that settled case law supports a decision that the “physical force and violence” allegation in McKithan’s indictment is not functionally equivalent to an allegation of bodily-injury and that the State was not required to prove bodily injury to establish this “physical force and violence” allegation in McKithan’s aggravated-sexual-assault indictment. See Wisdom v. State, 708 S.W.2d 840, 843 n. 3 (Tex.Cr.App.1986) (the terms “force” and “violence” are “synonymous when used in relation to assault, and include any application of force even though it entails no pain or bodily injury and leaves no mark”); Brown v. State, 576 S.W.2d 820, 822-23 (Tex.Cr.App.1978) (defendant compelling complainant to submit to sexual intercourse by holding a gun to her head sufficient to show force and threats); Trejo v. State, 242 S.W.3d 48, 50-52 (Tex.App.-Houston [14th Dist.] 2007) (aggravated assault not lesser-included offense of charged aggravated-sexual-assault offense because serious bodily injury was not a “fact required” to establish the “physical force and violence” and “threatening to use force and violence” allegations in the indictment), overruled on other grounds, Trejo v. State, 280 S.W.3d 258 (Tex.Cr.App.2009); Edwards v. State, 97 S.W.3d 279, 291 (Tex.App.-Houston [14th Dist.] 2003, pet. ref d) (explicit verbal threats and physical injury are not required to prove that a defendant compelled the victim’s participation in a sexual assault by physical force and violence) (and cases cited); Gonzales v. State, 2 S.W.3d 411, 414-16 (Tex.App.-San Antonio 1999, no pet.) (defendant compelling the complainant to submit to sexual intercourse by laying on top of the complainant and preventing her from moving sufficient to show physical force and violence). The court of appeals, therefore, did not err to decide that the trial court properly refused McKi-than’s requested jury instruction on bodily-injury assault.

We also believe that this case law supports a decision that the “physical force and violence” allegation in McKithan’s indictment is not functionally equivalent to an allegation of physical contact and that the State was not required to prove physical contact in establishing this “physical force and violence” allegation in McKi-than’s aggravated-sexual-assault indictment. See Wisdom, 708 S.W.2d at 843 n. 3 (“violence is a general term and includes all sorts of force”); Brown, 576 S.W.2d at 822-23 (concept of force includes “physical force, threats, or some other' type of coercion” and the defendant compelling the complainant to submit to sexual intercourse by holding a gun to her head sufficient to show force or threats); Robinson v. State, 67 Tex.Crim. 79, 149 S.W. 186, 187-88 (1912) (“violence” is a general term and includes all sorts of force and noting that the term has also been defined as “moving or acting with physical strength, urged or impelled with force, acting that is characterized or produced by improper force”). The court of appeals, therefore, did not err to decide that the trial court properly refused McKithan’s requested jury instructions on offensive-contact assault.

II. Is Offensive-Contact Assault a Lesser-included Offense of the Charged Offense in Welsh?

Welsh argues that offensive-contact assault is a lesser-included offense of bodily-injury assault “because the element of causing bodily injury [by kicking] is legally equivalent to the complainant’s regarding such contact as offensive or provocative.” We decide that the causing-bodily-injury-by-kicking allegation in Welsh’s indictment is not functionally equivalent to an allegation that Welsh knew or should reasonably have believed that the complainant would regard this contact as offensive or provocative. The State was not required to prove the latter (i.e., that appellant knew or should reasonably have believed that the complainant would regard this contact as offensive) to establish the former (i.e. that appellant caused the complainant bodily injury by kicking). See also Welsh, slip op. at 4-5, 2009 WL 1425194 (offensive-contact assault is not a lesser-included offense of the charged bodily-injury-assault offense as charged because, to establish that Welsh caused bodily injury to the complainant “by kicking her with his foot, the State was not required to prove that Welsh knew or reasonably should have believed that [the complainant] would regard the contact as offensive or provocative”). In establishing the charged bodily-injury-assault offense, the State was required to prove only that appellant caused the complainant bodily injury by kicking her. It is irrelevant whether the defendant knew or should have reasonably believed that the complainant would consider this contact as offensive or provocative.

We also note that this Court has stated that the three statutory definitions of simple assault contained in Section 22.01(a)(1)-(8) of the Penal Code are “three distinct criminal offenses.” See Landrian v. State, 268 S.W.3d 532, 540 (Tex.Cr.App.2008). A contrary decision in this case would be inconsistent with this legislative intent and would amount to a holding that, in every bodily-injury-assault case involving physical contact, the State is required to prove, as an element of that bodily-injury-assault case, that the defendant also knew or should have reasonably believed that the complainant would regard that contact as offensive.

Our opinion in Hall and the opinions by the court of appeals and by this Court in Farrakhan support this decision. See Farrakhan v. State, 263 S.W.3d 124, 132-40 (Tex.App.-Houston [1st Dist.] 2006), ajfd by Farrakhan, 247 S.W.3d at 724. In Farrakhan, this Court approved of the court of appeals’s pre-Hall lesser-included-offense analysis as being consistent with Hall. See Farrakhan, 247 S.W.3d at 724 (“When it used the term ‘functional equivalence,’ the court [of appeals] employed the same two-step method of conducting such lesser-included-offense analyses in its opinion that we described in Hall shortly thereafter. Thus, it reached the same result that Hall would have mandated.”).

The issue in Farrakhan was whether the Class B misdemeanor offense of fleeing or attempting to elude a police officer is a lesser-included offense of the charged state-jail-felony offense of evading detention by use of a motor vehicle. In relevant part, the indictment for the state-jail-felony offense of evading detention by use of a motor vehicle alleged that the defendant fled in a vehicle from a police officer who was attempting lawfully to arrest the defendant. See Farrakhan, 263 S.W.3d at 132. Over the defendant’s objection, the trial court instructed the jury on the Class B misdemeanor offense of fleeing or attempting to elude a police officer, which provides that a person commits this offense when “the person operates a motor vehicle and wilfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop.” See Farrakhan, 263 S.W.3d at 129, 132 (internal quotes omitted). This offense is further defined by stating that “the officer’s signal may be by hand, voice, emergency light, or siren, and the signaling officer must be uniformed, prominently displaying his badge, and driving a vehicle that is appropriately marked as an official police vehicle.” See id. (internal quotes omitted).

Declining to follow the Fort Worth Court of Appeals’s decision in Walker v. State, the court of appeals in Farrakhan decided that the State was not required to prove at least three elements of the fleeing-or-attempting-to-elude-a-police-officer offense in establishing the charged evading-detention-by-a-motor-vehicle offense and that “the uncharged offense’s elements requiring proof of these three facts were neither the functional equivalents of the elements of the charged offense nor were they included within the charged offense’s elements.” See Farrakhan, 263 S.W.3d at 138-39. The court of appeals stated that it was irrelevant that the State may have proved the fleeing-or-attempting-to-elude-a-police-officer offense “in the process of proving the statutorily required elements of evading detention is irrelevant.” The court of appeals stated:

For example, as charged here, the offense of evading detention required that the State prove only that appellant, by using a motor vehicle, intentionally fled from Officer Roi when appellant knew that Officer Roi was a peace officer attempting to detain him lawfully. That offense did not require the State to prove, for example, that Officer Roi was in a vehicle of any kind (as unusual as that scenario might be when the suspect is in a vehicle); that the officer was uniformed and prominently displaying his badge; or that, if the officer was using a vehicle, that vehicle was appropriately marked as an official police vehicle. The fact that the State did prove these things in the process of proving the statutorily required elements of evading detention is irrelevant. We respectfully disagree with the Walker court’s conclusion to the contrary because its conclusion appears to have rested on what evidence the State actually presented, rather than on what evidence the State was required to present, to prove the charged offense.

See Farrakhan, 263 S.W.3d at 139 (emphasis in original, footnotes and citation to authority omitted).

In Hall, we decided that aggravated assault by threatening another with imminent bodily injury by displaying a gun was not a lesser-included offense of murder as charged in an indictment, which, in relevant part, alleged that the defendant caused the death of an individual by shooting him with a gun. We decided in Hall that the “threatening” and “display” elements of the aggravated-assault lesser offense were not “facts required” to establish the charged murder offense even though “the evidence may show threatening and display.” See Hall, 225 S.W.3d at 536-37. In Hall, we stated:

The facts required to prove the lesser offense include two that are not the same as, or less than, those required to establish the offense charged: threatening and display.
It is true that the evidence may show threatening and display. The evidence may show a number of other lesser offenses as well, such as disorderly conduct by discharging a firearm in a public place or across a public road or by displaying a firearm in a public place in a manner calculated to alarm, unlawfully carrying of weapon, or unlawful possession of weapon. But those offenses likewise are not established by the same or less than the proof required to prove the allegations in the indictment for murder. Aggravated assault by threat, like the other offenses mentioned, requires proof of additional facts.

See Hall, 225 S.W.3d at 536-37 (emphasis supplied and footnotes omitted).

In Farrakhan, we approved of the court of appeals’s decision that the “fleeing” offense was not a lesser-included offense of the charged “evading” offense even though proof of the charged “evading” offense may also have shown the “fleeing” offense. See Farrakhan, 247 S.W.3d at 722-23; Farrakhan, 263 S.W.3d at 138-39. In Hall, we decided that the aggravated-assault-by-threat offense was not a lesser-included offense of the charged murder offense even though proof of the charged murder offense may also have shown the aggravated-assault-by-threat offense. See Hall, 225 S.W.3d at 536-37. These were not lesser-included offenses of the charged offenses in both of these cases because the State was not required to prove these offenses in establishing the charged offenses, even though the State’s evidence may have shown them. See id.; Farrakhan, 263 S.W.3d at 138-39.

Thus, as in Farrakhan and Hall where the facts required to show the charged offenses may also have shown “a number of other lesser offenses as well,” it is not dispositive that the evidence in Welsh’s bodily-injury-assault case may also have shown offensive-contact assault. Compare Farrakhan, 263 S.W.3d at 139 (charged offense “did not require the State to prove, for example, that Officer Roi was in a vehicle of any kind (as unusual as that scenario might be when the suspect is in a vehicle)”). The relevant inquiry is not what the evidence may show but what the State is required to prove to establish the charged offense. See Hall, 225 S.W.3d at 536-37 (State not required to prove threatening and display even though these may be shown by the evidence); Farrakhan, 263 S.W.3d at 139 (relevant inquiry is based on “what evidence the State was required to present, to prove the charged offense” and that “the State could and did present evidence” of a lesser offense “does not mean that the State was required to do so”) (emphasis in original). And, in Welsh’s case, we have decided that the State was not required to prove offensive contact in establishing the charged bodily-injury-assault offense (even though the State’s evidence may have shown offensive contact).

The judgments of the courts of appeals in McKithan and in Welsh are affirmed.

COCHRAN, J., filed a concurring opinion in which HOLCOMB, J., joined.

PRICE and JOHNSON, JJ., concurred.

COCHRAN, J.,

concurring in which HOLCOMB, J., joined.

I join the majority opinion. I think that these cases might be more easily addressed if we rephrased the appellants’ grounds for review as follows: Does proof of a • bodily-injury assault by kicking (or the use of “physical force and violence” in an aggravated sexual assault) necessarily require proof that the defendant intentionally caused physical contact with the victim that the defendant knew or reasonably should have known that the victim would regard as offensive or provocative? Of course not. Physical harm and physical force are entirely different concepts from mental or moral offensiveness. One damages the body, the other damages the mind, emotions, or sense of well-being. One is the intent to cause a physical injury, the other is the intent to cause a psychic injury. One is “ouch,” the other is “yuck.”

Frequently, one who intends to cause bodily injury also intends to cause mental distress, anger, or disgust, but these are two separate offenses with two different intended results. One is a less serious offense than the other because the Legislature has determined that the intent to cause purely mental injuries of disgust or irritation is less culpable than the intent to cause physical injuries or pain. It could have made both offenses equally serious, but it has chosen not to.

I therefore agree that offensive-contact assault is not a lesser-included offense of a bodily-injury assault alleging that the defendant “kicked” the victim. The State will not necessarily prove that the defendant intended to physically contact the victim in an offensive manner as it proves that he intended to cause her bodily injury. And the same is true for an aggravated sexual assault indictment that alleges that the defendant compelled the complainant to submit and participate in the sexual act “by the use of physical force and violence.” A defendant may well intend that his rape victim feel disgusted and enraged by his unwanted physical acts, but that intent is separate and apart from his use of physical force and violence to accomplish his objective. Again, using physical force is entirely different from intending to touch someone in a rude, displeasing, or obnoxious manner. Offensive-contact assault is therefore not a lesser-included offense of an aggravated sexual assault offense that explicitly requires “the use of physical force and violence.”

      . See § 22.01(a)(3), Tex. Penal Code (person commits an assault if person "causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative”).

      . See § 22.01(a)(1), Tex. Penal Code (person commits an assault if person causes bodily injury to another person); § 1.07(a)(8), Tex. Penal Code ("bodily injury” means "physical pain, illness, or any impairment of physical condition”).

      .Welsh’s indictment also alleged that the complainant was a family or household member and that Welsh had previously been convicted of bodily-injury assault against a family or household member, which enhanced Welsh’s punishment range from a Class A misdemeanor to a third-degree felony. See § 22.01(b)(2)(A), Tex. Penal Code.

      . See § 22.01(c), Tex. Penal Code.

      . See § 12.42(a)(3), Tex. Penal Code

      . See §§ 22.021(a)(1)(A), 22.02 l(a)(2)(A)(ii), 22.021(c), 22.011(b)(1) Tex. Penal Code (person commits aggravated sexual assault if person causes the penetration of the sexual organ of another person by any means without that other person’s consent by compelling that other person to submit or participate by the use of physical force or violence and the person by acts or words places the other person in fear of imminent serious bodily injury).

      . The five additional paragraphs in the indictment alleged aggravated sexual assault by other manner and means. For example, paragraph two of the indictment was identical to paragraph one except that it alleged that "by acts and words the Defendant placed the Complainant in fear that KIDNAPPING would be imminently inflicted on [the complainant.].” (Capitalization in original). See §§ 22.021(a)(1)(A), 22.02 l(a)(2)(A)(ii), 22.021(c), 22.011(b)(1) Tex. Penal Code. We further note that McKithan argued in his discretionary-review petition that the “other [four] paragraphs were variations of the[] themes" in the first two paragraphs.

      . The record reflects that McKithan requested jury instructions on the lesser-ineluded offenses "of assault, bodily injury, and assault defensive touching.” The State argues on discretionary review that McKithan failed to preserve the claim that he was entitled to a jury instruction on offensive-contact assault because McKithan requested an instruction on "defensive touching” and "there is no such offense in the Penal Code.” We note that the State did not make this preservation-of-error claim in the court of appeals and that the court of appeals addressed the merits of McKithan’s claim that he was entitled to a jury instruction on offensive-contact assault. See McKithan, slip op. at 3 n. 3, 2009 WL 1562883 (stating that it understood "appellant's objection to be 'assault, offensive touching’ ") (emphasis in original). We reject the State's preservation-of-error claim.

      . See §§ 12.42(d), 22.01(e), Tex Penal Code.

      . We express no opinion on whether these are lesser-ineluded offenses under the other paragraphs of the indictment. See Hall, 225 S.W.3d at 531 ("This court has said on a number of occasions that when the greater offense may be committed in more than one manner, the manner alleged will determine the availability of lesser-ineluded offenses.”); cf. Feldman v. State, 71 S.W.3d 738, 750-54 (Tex.Cr.App.2002) (in capital-murder prosecution alleging two alternative means of committing the offense, defendant not entitled to lesser-included-offense instruction on murder, under the second step of lesser-included-offense analysis, without evidence negating both alternative means of committing the offense).

      . McKithan argues in his brief on discretionary review that the court of appeals erred by focusing exclusively on the “aggravating factors” alleged in the indictment and ignoring the allegation of "physical force and violence,” which, according to McKithan, "without regard to any aggravating factors — provide[s] the basis for deducing the elements of the lesser offenses.” McKithan argues:
      The first error, as is apparent from the language of the [court of appeals’s] holding above, is that the court of appeals focused exclusively on the "aggravating factors” alleged in the indictment. This is hard to understand, because Appellant’s brief specifically called the court's attention to the first paragraph of the indictment: "The first paragraph then alleged that Appellant ‘compelled the Complainant to submit and participate by the use of physical force and violence, and by acts and words the Defendant placed the Complainant in fear that serious bodily injury would be imminently inflicted on [the complainant].’ ” The first portion of that paragraph states an essential element of sexual assault; is not "an aggravating factor.”
      The offense of sexual assault under Penal Code Sec. 22.011(a)(1)(A) requires proof that the assaultive conduct on the other person is "without that person's consent,” and subsection (b) prescribes 11 ways in which that element must be established. The first way in which it may be alleged that the assaultive conduct was "without consent” is set out in subsection (b)(1), and the State included that language in Appellant’s indictment, alleging that in causing physical contact with the complainant he "compelled the complainant to submit and participate by the use of physical force and violence.” It makes absolutely no difference that the indictment "relied on assault by threat or kidnapping as aggravating factors,” as the lower court’s opinion stated. (See quoted portion, supra) If the allegations of the indictment, less the aggravating factors, less any factors and any number of factors in the abstract, permit a deduction of a lesser offense on those reduced facts, then the cognate pleadings test [set out in Hall ] is satisfied. In this case it happens that the allegations of the sexual assault— without regard to any aggravating factors— provide the basis for deducing the elements of the lesser offenses.
      (Emphasis in underline in original).

      . The parties have cited published and unpublished intermediate appellate court decisions that the parties assert demonstrate conflicting intermediate-appellate-court decisions on this issue. Compare Aguilar v. State, 263 S.W.3d 430, 434-36 (Tex.App.-Houston [1st Dist.] 2008, pet. ref’d) (aggravated-robbery indictment alleging that the defendant caused bodily injury "by striking [the complainant] in the head with his fist" did not include offensive-contact assault because the "facts required to prove [offensive-contact] assault include two that are not the same as, or less than, those required to establish the aggravated robbery: that the contact was offensive or provocative and that [the defendant] knew or should have known that the contact was offensive or provocative”); Ramos v. State, 981 S.W.2d 700, 701 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (same with respect to charged offenses of aggravated sexual assault by penetration and indecency by contact because neither of these two offenses, as charged, required "proof that the defendant knew or reasonably believed that the complainant would regard the contact as offensive or provocative at the time of the contact”) with In re A.E.B., 255 S.W.3d 338, 345-47 (Tex.App.-Dallas 2008, pet. dism’d) (attempted-sexual-assault indictment alleging that juvenile "knocked O.P. [the complainant] to the ground and physically overpowered her” included offensive-contact assault because "the conduct element of attempted sexual assault alleged-knocking O.P. to the ground and physically overpowering her — includes the conduct element of assault — causing physical contact with O.P. when he knew or should reasonably have believed that O.P. would have regarded the contact as offensive or provocative”).

      . McKithan also claims in his brief on discretionary review, as he did in the trial court, in the court of appeals and in his discretionary-review petition, that bodily-injury assault is also a lesser-included offense of the charged aggravated-sexual-assault offense. We will address this claim.

      . Emphasis supplied.

      . This "functional-equivalence concept” appears to be synonymous with the concepts of "necessary inclusion” or "subsumption of elements.” See Evans, 299 S.W.3d at 143.

      . In Salazar, we stated:
      In this case, the Court of Appeals did correctly identify Hall as the controlling standard for assessing lesser-included offenses. However, in its analysis of the first step, the Court determined that the legal elements of criminal trespass were not comparable to the elements of burglary of a habitation as they were alleged in the indictment. According to the Court, the notable element absent from the indictment was notice of forbidden entry, which is a requirement of criminal trespass and yet nowhere mentioned in the indictment. In this case, however, it would not have been necessary to expressly include the language of notice in the indictment because notice is inherent in a "habitation.” Further, pursuant to Hall, "the elements of the lesser offense do not have to be pleaded if they can be deduced from the facts alleged in the indictment.” We believe it can be deduced from the indictment, that the appellant had notice, quite simply, because notice is inherent to a habitation and the indictment read "burglary of a habitation.”

        See Salazar, 284 S.W.3d at 878 (footnotes omitted and emphasis in original).

      . This could be because McKithan determined that he would not have been entitled to jury instructions on these offenses under the step-two lesser-included-offense analysis under Hall, since McKithan testified at trial and denied that he penetrated the complainant's sexual organ with his finger. See Hall, 225 S.W.3d at 536 (evidence presented at trial is important to step-two lesser-included-offense analysis). We express no opinion on whether the allegation in McKithan’s indictment that he penetrated the complainant's sexual organ with his finger required the State to prove bodily-injury assault or offensive-contact assault.

      . For example, McKithan argues:
      [T]he language alleging sexual assault in this indictment clearly implies the elements of Penal Code Sec. 22.01(a)[3], assault by causing physical contact with another when the actor knows or reasonably should believe the other person will regard the contact as offensive, as a possible lesser offense. It takes no great leap of the imagination to infer — that is, to deduce from the language of the indictment — that the complainant would regard as offensive [McKithan’s] physical contact, which the indictment alleged that he compelled her to submit to, by the use of force and violence, and that [McKithan] did know or reasonably should have known she would regard it as offensive.

      . We note that ''infer” is a definition and synonym of the term "deduce.” See Roget’s Desk Thesaurus 133 (2001); Webster’s II New Collegiate Dictionary 294 (1999).

      . We also note that McKithan's reading of the opinion on rehearing in Watson would be inconsistent with the "facts required” language in Article 37.09(1) and would change this "facts required” language into "facts deduced or inferred.” See Hall, 225 S.W.3d at 534 (disapproving of interpretation of Article 37.09(1) that negates the language of Article 37.09(1) "by changing 'facts required' into 'facts presented’ ”) (quoting Jacob v. State, 892 S.W.2d 905, 908 (Tex.Cr.App.1995)).

      . McKithan also argues that this Court’s decision in Schmidt v. State "comes close to holding" that bodily-injury assault is the legal equivalent to the "physical force and violence” allegation in the indictment. See Schmidt v. State, 278 S.W.3d 353 (Tex.Cr.App.2009). We understand McKithan to claim that Schmidt decided that "striking” someone is the "legal equivalent of causing bodily injury” which, according to McKithan, would support deciding that "physical force and violence” is also the "legal equivalent of causing bodily injury.” In Schmidt, we assumed without deciding that the defendant’s act of "striking” the complainant was "the legal equivalent of causing bodily injury," because the State did not challenge that decision by the court of appeals. See Schmidt, 278 S.W.3d at 356 n. 6.

      . See § 22.01(a)(1) (bodily-injury assault); § 22.01(a)(2) (assault by threatening another with imminent bodily injury); § 22.01(a)(3) (offensive-contact assault).

      . See § 545.421(a), Tex. Transp. Code.

      . See § 38.04(a), Tex. Penal Code.

      . 95 S.W.3d 516, 519 (Tex.App.-Fort Worth 2002, pet. ref'd) (deciding that offense of fleeing or attempting to elude a police officer is a lesser-included offense of evading detention by use of a motor vehicle).

      . Hall, therefore, decided that shooting and killing a person with a gun is not, in a step-one lesser-included-offense analysis, functionally equivalent to threatening that person with imminent bodily injury by displaying a gun.

      . See Hall, 225 S.W.3d at 536.

      . These same considerations apply in McKi-than's case since the State's proof of a "physical force and violence” indictment allegation in McKithan’s case may also have shown bodily injury and offensive contact.

      . The word "offensive” is commonly defined as "causing offense, specifically provocation; irritating; ... disgusting; giving pain or unpleasant sensations; disagreeable.” Common synonyms are "displeasing, disagreeable, distasteful, obnoxious, abhorrent, disgusting, impertinent, rude, saucy, opprobrious, insulting, insolent, abusive, scurrilous." Webster’s New Twentieth Century Dictionary Unabridged 1242 (1979). The word "provocative” is commonly defined as "provoking or tending to provoke” and common synonyms for the verb provoke are "arouse, stir up, rouse, awake, cause, excite, move, induce, incite, stimulate, inflame, offend, irritate, anger, chafe, exasperate, incense, enrage.” Id. at 1450.

      . Obviously, most victims of aggravated sexual assault will feel disgusted, insulted, abused, and enraged by the attacker's unwanted physical contact, but the offensive-contact assault statute focuses on the defendant's intent and knowledge (or what he should reasonably have believed), not on the victim’s reaction to the defendant’s conduct. Tex. Penal Code § 22.01(a)(3) (a person commits an assault if he "causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative”).

      . Thus, one who "kicks” his wife may well intend both to make her hurt physically and to cause her psychic pain — to make her feel displeasure, distastefulness, or anger. But another person who kicks his wife may not care at all that she finds his conduct offensive or provocative — he simply wants to beat her up.