May I increase the range of punishment at a motion to adjudicate hearing by offering proof of a prior TDC trip that was not plead in the indictment the D plead guilty to when he got the deferred? I have given notice that I plan to do so more than 10 days prior to hearing.
No. There is a little thing called Due Process, which requires the State to give a defendant formal notice of the range of punishment at the point of a guilty plea. Switching to a different range of punishment at a later date might be seen as a tad unfair.
I recommend you take a look at The Perfect Plea, provided by TDCAA for your reading pleasure.
The statute provides: "After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred. This could be interpreted to mean that the applicable range of punishment becomes relevant only at that point, since determination of punishment was deferred at first. Since punishment enhancement facts need not be pled in the indictment (at any point), it does not seem unfair for those facts to proved after guilt has been adjudicated. Certainly this is no more unfair than the rule which permits a defendant to file a motion for new trial or raise voluntariness of the plea years after phase one of the "trial." I might argue that notice was not required at the time of the plea to afford a reasonable opportunity to defend (or that any such right was waived when deferral of the proceeding was accepted in lieu of an earlier determination of punishment).
