¶1concurring.
¶2Appellant was indicted for the offense of delivery of a controlled substance. Initially, the indictment did not contain an enhancement paragraph. Subsequently, the State filed a motion for leave to amend the indictment to add an enhancement paragraph, which alleged appellant had been convicted of the felony offense of attempted murder in 1985. The trial court granted the motion.
¶3However, the indictment was never physically amended. At the beginning of the punishment phase, the State read the indictment, including the never actually-added enhancement paragraph, to the jury. At the conclusion of the punishment phase the trial court included language pertaining to the enhancement paragraph as part of its charge to the jury on punishment. At no time did appellant object to the reading of the enhancement paragraph or to its inclusion in the jury charge. The jury assessed punishment at fifteen years imprisonment plus a fine of $15,000. Appellant’s conviction and sentence were affirmed on appeal. Brooks v. State, 921 S.W.2d 875 (Tex.App.—Houston [14th Dist.] 1996).
¶4There is certainly no question that an accused is entitled to notice that the State intends to use his prior convictions for the purpose of enhancing punishment. The issue presented here is whether this notice must be provided by the indictment itself, or whether it may be provided by other means. As the majority correctly states, Texas Code of Criminal Procedure Article 27.01 provides that an indictment is the State’s “primary pleading in a criminal action.” The language of article 27.01 implicitly provides for the possibility that the State may raise certain matters by pleadings other than the indictment itself.
¶5An enhancement paragraph is analogous to an affirmative deadly weapon finding in that it has the potential to increase the punishment range faced by the accused. While an affirmative deadly weapon finding does not, of course, increase the length of the sentence, it has a similar effect because if the accused is convicted and a deadly weapon affirmative finding is made, he would have to serve additional time before being eligible for parole. Accordingly, we have consistently held that the State must provide adequate notice to the accused of its intent to seek an affirmative deadly weapon finding. This notice requirement may be met by including its intent to seek an affirmative deadly weapon finding as part of the indictment itself or by other written means. Ex parte Patterson, 740 S.W.2d 766, 776 (Tex.Crim.App.1987), overruled on other grounds, Ex parte Beck, 769 S.W.2d 525 (Tex.Crim.App.1989). For example, we have held the State may seek an affirmative finding as to use or exhibition of a deadly weapon by providing written notice to the accused of its intent to do so, and this notice may be made by a written pleading outside the indictment. Luken v. State, 780 S.W.2d 264, 266 (Tex.Crim.App.1989); Ex parte Patterson, supra; Polk v. State, 698 S.W.2d 391 (Tex.Crim.App.1985). See also McLean v. State, 787 S.W.2d 196, 197 (Tex.App.—Corpus Christi 1990).
¶6The above cases simply hold that if the State intends effectively to increase the actual amount of prison time the accused will serve if he is convicted by seeking an affirmative deadly weapon finding, then the accused must be provided adequate advance notice so he can prepare a defense to the State’s allegation that he used or exhibited a deadly weapon. Indeed, failure to provide *35such adequate notice in advance may well violate the accused’s due process and due course of law rights under the United States and Texas Constitutions. Similarly, so that the accused is provided a reasonable opportunity to contest the validity of prior convictions the State intends to use for enhancement purposes, he must be given adequate advance notice of the State’s intent to do so.
¶7In the present case, the State did not include an enhancement paragraph as part of the indictment. While the State did timely file its motion to amend the indictment by adding an enhancement paragraph and the motion was granted, the indictment itself, due to some clerical or other oversight, was never physically amended.
¶8There is no question appellant was notified the State intended to seek an enhanced punishment based on his 1985 conviction for attempted murder. He did not object at the time the State filed its motion to amend the indictment; nor did he object when the State read the enhancement paragraph to the jury at the beginning of the punishment phase. Finally, appellant failed to object to the inclusion of enhancement language in the trial court’s punishment charge to the jury. Appellant was given all the notice to which he was entitled that the State intended to seek an enhanced punishment. In my opinion, his failure to take advantage of at least three opportunities to object waives any complaint with respect to this issue on appeal.
¶9I would hold that the State may elect to seek enhancement of punishment by either of the following means:
1. by inclusion of an enhancement paragraph in the indictment, either initially, or by actual physical amendment of the indictment;
2. by written motion filed prior to commencement of the guilt-innocence phase of the trial provided the accused is afforded notice and an opportunity to be heard.
¶10With these comments I join the judgment of the Court.