                                NO. 07-08-0516-CR

                           IN THE COURT OF APPEALS

                    FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                     PANEL C

                                  JULY 14, 2009

                       ______________________________


                               CURTIS LEE SMITH,

                                                          Appellant

                                         v.

                              THE STATE OF TEXAS,

                                                          Appellee

                     _________________________________

             FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B17591-0803; HON. ED SELF, PRESIDING

                       _______________________________

                             Memorandum Opinion
                     __________________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Curtis Lee Smith appeals his conviction of possession of a controlled substance

(cocaine) in an amount of less than one gram. He does so by contending he was not

subject to enhancement as alleged in the indictment. We reverse and remand the

judgment.
       The State alleged that appellant had previously committed a felony on August 20,

1991, in Cause No. A10855-9109 for which he was sentenced to probation on November

25, 1991, and which probation was revoked on August 5, 1994. The State then alleged

that after the conviction in Cause No. A10855-9109 was final, appellant committed another

felony in Cause No. B11663-9403 for which he was convicted on August 4, 1994. That

felony was committed on March 9, 1994. Because the current offense is a state jail felony,

see TEX . HEALTH & SAFETY CODE ANN . §481.115(b) (Vernon 2003), it is enhanced pursuant

to §12.42(a)(2) of the Penal Code which states: “If it is shown on the trial of a state jail

felony punishable under Section 12.35(a) that the defendant has previously been finally

convicted of two felonies, and the second previous felony conviction is for an offense that

occurred subsequent to the first previous conviction having become final, on conviction the

defendant shall be punished for a second-degree felony.”           TEX . PENAL CODE ANN .

§12.42(a)(2) (Vernon Supp. 2008).

       The pen packet admitted into evidence shows a judgment revoking probation in

Cause No. A10855-9109 on August 5, 1994. A probated sentence is not a final conviction

for enhancement purposes until it is revoked. Jordan v. State, 36 S.W.3d 871, 875 (Tex.

Crim. App. 2001); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978).

Since the first conviction did not become final until August 5, 1994, the second conviction

did not occur prior to the first becoming final. For this reason, the evidence is not legally

sufficient to support the enhancement paragraphs. Tomlin v. State, 722 S.W.2d 702, 705

(Tex. Crim. App. 1987) (stating that when there is no evidence to show the offenses were

committed and became final in the proper sequence, the defendant’s sentence may not



                                             2
be enhanced).       This is true even though appellant pled true to the enhancement

allegations. See Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006). Moreover,

the error may not be deemed harmless. Jordan v. State, 256 S.W.3d 286, 292 (Tex. Crim.

App. 2008). Therefore, the judgment must be reversed.

       Accordingly, we reverse the judgment and remand to the trial court for a new

punishment hearing.1 See Ex parte Rich, 194 S.W.3d at 513 (stating that when there is

error at the punishment phase, the case may be remanded for the proper assessment of

punishment).



                                                      Brian Quinn
                                                      Chief Justice

Do not publish.




       1
         The State concedes that the enhancem ent was im proper and that the cause should be rem anded
for a new punishm ent hearing.

                                                  3
