¶1OPINION ON REHEARING
¶2After reconsidering our prior opinion on appellant Randy Lee Fugate’s motion for rehearing, we deny the motion, but we withdraw our March 9, 2006 opinion and judgment and substitute the following in their place in order to clarify parts of our original opinion as guided by the recent court of criminal appeals opinion in Villes-cas v. State, 189 S.W.3d 290 (Tex.Crim. App.2006).
¶3Appellant Randy Lee Fugate was charged with possession of one gram or more but less than four grams of a controlled substance, a third-degree felony. See Tex. Health & Safety Code Ann. § 481.115(c) (Vernon 2003); Tex. Penal Code Ann. § 12.42(a)(3) (Vernon Supp. 2005). A jury found him guilty and assessed his punishment at twenty years’ confinement due to a prior felony conviction that enhanced his punishment to a second-degree felony. On appeal, he challenges the enhancement, claiming he did not receive sufficient notice. We affirm.
¶4Factual Background
¶5Appellant properly filed his request for notice of extraneous offenses and offenses to be used for enhancement under article 37.07(3)(g) and rule of evidence 404(b) on November 18, 2003. Tex.Code CRiM. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp.2005); Tex.R. Evid. 404(b). The State filed its notice of enhancement on October 5, 2004, one week prior to trial.
¶6On the first day of trial, October 12, 2005, appellant objected to the State’s notice of enhancement. Appellant contended that the State’s notice was inadequate because it was given less than seven days prior to trial, citing Fairrow and Sears, two cases holding that ten days’ notice of enhancement was presumptively sufficient without setting an arbitrary minimum. Fairrow v. State, 112 S.W.3d 288, 295 (Tex.App.-Dallas 2003, no pet.); Sears v. State, 91 S.W.3d 451, 455 (Tex.App.-Beaumont 2002, no pet.). The State replied that appellant had been given at least seven days’ notice before trial; the notice was sent on October 5 and trial did not begin until October 12. Upon questioning from the trial court, appellant conceded that he had received notice by fax two to three weeks prior to trial of the State’s intention to use two extraneous offenses; however, he did not receive notice that the offenses would be used for enhancement as well until one week before trial. The trial court overruled his objection concluding that seven days’ notice before trial at guilt-innocence was sufficient. The trial court also denied appellant’s request for a continuance. The jury convicted appellant of the present felony, with one enhancement, as a second-degree felony, giving him a twenty-year sentence.
¶8On appeal appellant raises a constitutional point challenging the timeliness of the State’s notice of enhancement. See Villescas, 189 S.W.3d at 294 (holding notice requirement is of constitutional origin). He contends that the State’s failure to give proper and timely notice of enhancement of punishment under section 12.42(a)(3) of the penal code should have resulted in him receiving a maximum third-degree punishment.
¶9Discussion
¶10Normally, the maximum punishment for a third-degree felony is two to ten years’ confinement whereas the punishment for a second-degree felony is two to twenty years’ confinement. However, if the State shows that the defendant was convicted of a prior felony, the third-degree felony will be punished as a second-degree felony resulting in an enhanced punishment. Here, the jury assessed the maximum confinement for a second-degree felony, twenty years.
¶11Appellant urges us to adopt the Waco appellate court’s holding in Hackett, the only intermediate appellate court opinion to adopt a bright-line rule that requires the State to give a defendant at least ten days’ notice of any enhancement. See Hackett v. State, 160 S.W.3d 588, 591 (Tex.App.-Waco 2005, pet. ref'd). However, in Villescas, the court of criminal appeals recently held that there is no “special significance to the time period of ten days.” Villescas, 189 S.W.3d at 294. The court reasoned that the “ultimate question is whether constitutionally adequate notice was given.” Id.
¶12Because there is no statutory requirement and because the court of criminal appeals has recently stated that no bright-line rule requiring a minimum of ten days’ notice of enhancements exists, we conclude and hold that there is no such ten-day notice requirement.
¶13The only question that remains is whether, under Villescas, appellant received constitutionally adequate notice. See id.We agree with the trial court’s conclusion that seven days’ notice was reasonable notice under these circumstances. The court in Villescas concluded, based on Oyler v. Boles
¶14Finally, because we have found no error there is no reason to address harm.
¶15Conclusion
¶16For these reasons, we overrule appellant’s sole point and affirm the judgment of the trial court.
¶17DAUPHINOT, J. filed a concurring and dissenting opinion.
¶18. The State gave notice of two prior felony convictions. Appellant’s objection as to one conviction was sustained and withdrawn by the State due to an erroneous allegation contained within that enhancement.
¶19.At trial appellant argued that the ten-day notice rule for amendments to indictments should apply; on appeal he apparently abandoned this argument, for it is nowhere to be found in his brief. See Tex.Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989) (requiring ten days' notice to amend an indictment). He merely notes the requirement in his list of other statutory examples requiring ten days’ notice.
¶20. 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).
¶21. The court held that "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.” Villescas, 189 S.W.3d at 294.
¶22. On appeal, appellant only argues that his substantial rights were affected under rule *78444.2(b), not under 44.2(a). See Tex.R.App. P. 44.2(a), (b).