                                                                                              PD-0794-15
                                                                             COURT OF CRIMINAL APPEALS
                                                                                             AUSTIN, TEXAS
                                                                          Transmitted 11/13/2015 12:26:26 PM
November 13, 2015                 No. PD-0794-15                            Accepted 11/13/2015 12:30:52 PM
                                                                                              ABEL ACOSTA
                                                                                                      CLERK

                              IN THE
                    COURT OF CRIMINAL APPEALS
                            OF TEXAS


                ESSIE D. HOPKINS, Appellant/Petitioner

                                            vs.

            THE STATE OF TEXAS, Appellee/Respondent

                        On discretionary review of a decision by the
                      Court of Appeals, Fifth District at Dallas, Texas
                               in Cause No. 05-14-00146-CR

          On appeal from the 291st Judicial District Court of Dallas County, Texas
                          in Trial Court Cause No. F13-55764-U


                                 STATE’S BRIEF

                                              Counsel of Record:
Susan Hawk                                    Marisa Elmore
Criminal District Attorney                    Assistant District Attorney
Dallas County, Texas                          State Bar No. 24037304
                                              Frank Crowley Courts Building
                                              133 N. Riverfront Boulevard, LB-19
                                              Dallas, Texas 75207-4399
                                              (214) 653-3625
                                              (214) 653-3643 fax
                                              marisa.elmore@dallascounty.org

                              Attorneys for the State of Texas
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................... iii

STATEMENT OF THE CASE .................................................................... 1

STATEMENT OF FACTS .......................................................................... 2

SUMMARY OF ARGUMENT ................................................................... 6

ARGUMENT ............................................................................................. 7

        RESPONSE TO GROUND FOR REVIEW: The Fifth Court of
        Appeals' determination that the State was relieved of its burden
        to prove the prior convictions in the enhancement allegations by
        Appellant’s pleas of true does not conflict with prior decisions
        of this Court. The record contains no evidence affirmatively
        reflecting that the prior convictions were improperly used to
        enhance Appellant’s punishment, and Appellant has forfeited
        his right to a sufficiency review. ............................................... 7

PRAYER .................................................................................................. 24

CERTIFICATE OF WORD-COUNT COMPLIANCE .............................. 24

CERTIFICATE OF SERVICE .................................................................. 24




                                                     ii
                                INDEX OF AUTHORITIES

Cases

Brooks v. State,
  957 S.W.2d 30 (Tex. Crim. App. 1997) .................................................... 17

Brumfield v. State,
  445 S.W.2d 732 (Tex. Crim. App. 1969) .................................................. 21

Childs v. State,
  No. 05-09-01225-CR, 2011 Tex. App. LEXIS 696 (Tex. App.—Dallas
  Jan. 31, 2011, pet. ref’d) .......................................................................... 13

Crumpton v. State,
  301 S.W.3d 663 (Tex. Crim. App. 2009) .................................................. 17

Dinn v. State,
  570 S.W.2d 910 (Tex. Crim. App. 1978) .................................................. 19

Ex parte Beck,
  769 S.W.2d 525 (Tex. Crim. App. 1989) ....................................... 16, 17, 18

Ex parte Patterson,
  740 S.W.2d 766 (Tex. Crim. App. 1987) .................................................. 16

Ex parte Rich,
  194 S.W.3d 508 (Tex. Crim. App. 2006) .................................................... 9

Fletcher v. State,
  214 S.W.3d 5 (Tex. Crim. App. 2007)...................................................... 20

Flowers v. State,
  220 S.W.3d 919 (Tex. Crim. App. 2007) .................................................. 20

Freda v. State,
  704 S.W.2d 41 (Tex. Crim. App. 1986) .................................................... 10



                                                   iii
Grettenberg v. State,
  790 S.W.2d 613 (Tex. Crim. App. 1990) .................................................. 16

Harvey v. State,
 611 S.W.2d 108 (Tex. Crim. App. 1981) .................................................. 13

Hopkins v. State,
 No. 05-14-00146-CR, 2015 Tex. App. LEXIS 5468 (Tex. App.—Dallas
 May 28, 2015, pet. granted) (mem. op., not designated for publication) . 2, 10

Jingles v. State,
  752 S.W.2d 126 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d) ..... 10, 11

Long v. McCotter,
  792 F.2d 1338 (5th Cir. 1986) .................................................................. 19

Luken v. State,
  780 S.W.2d 264 (Tex. Crim. App. 1989) .................................................. 17

McFarland v. State,
 928 S.W.2d 482 (Tex. Crim. App. 1996) .................................................. 21

Mikel v. State,
 167 S.W.3d 556 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ......... 9, 23

Narron v. State,
 835 S.W.2d 642 (Tex. Crim. App. 1992) .................................................. 16

Pelache v. State,
  324 S.W.3d 568 (Tex. Crim. App. 2010) .................................................. 15

Roberson v. State,
  420 S.W.3d 832 (Tex. Crim. App. 2013) .......................... 8, 9, 10, 12, 14, 15

Tomlin v. State,
  722 S.W.2d 702 (Tex. Crim. App. 1987) ............................................. 21, 22

Wheat v. State,
 442 S.W.2d 363 (Tex. Crim. App. 1969) .................................................. 21

                                                 iv
Williams v. State,
 980 S.W.2d 222 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) .......... 10

Wilson v. State,
 671 S.W.2d 524 (Tex. Crim. App. 1984) .................................................. 10

Statute

Texas Penal Code Ann. § 12.42 (West Supp. 2014)............................... 1, 8, 19




                                             v
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      The State of Texas submits this brief in response to the brief of

Appellant, Essie D. Hopkins.

                        STATEMENT OF THE CASE

      A grand jury indicted Appellant for aggravated robbery with a deadly

weapon, a first-degree felony. (CR: 14). Appellant pled not guilty before a jury,

and the jury found him guilty. (RR3: 13; RR4: 53; CR: 37). Appellant elected

to have the trial court assess his punishment. (RR4: 53).

      At the punishment phase of trial, the State sought to enhance

Appellant’s punishment under the habitual-offender statute with two prior

aggravated assault convictions. See Tex. Penal Code Ann. § 12.42(d) (West

Supp. 2014). Appellant pled true to the two prior convictions. (RR5: 7-8; CR:

37). The trial court accepted Appellant’s pleas of true and found the

enhancements to be true; found that Appellant used or exhibited a firearm, a

deadly weapon, during the commission of the offense; and sentenced him to

life imprisonment in the Institutional Division of the Texas Department of

Criminal Justice. (RR5: 70-71; CR: 37).

      On appeal, the Fifth District Court of Appeals at Dallas affirmed

Appellant’s conviction. Hopkins v. State, No. 05-14-00146-CR, 2015 Tex. App.

LEXIS 5468 (Tex. App.—Dallas May 28, 2015, pet. granted) (mem. op., not

                                       1
designated for publication). This Court granted Appellant’s petition for

discretionary review on September 16, 2015.

                         STATEMENT OF FACTS

      The State made two prior-offense allegations to enhance Appellant’s

punishment under the habitual-offender statute, one in the indictment and one

in a separate notice pleading. (CR: 14, 17). The State first alleged in the

indictment that Appellant had a prior conviction for aggravated assault with a

deadly weapon as follows:

            And it is further presented to said Court that prior to the
      commission of the offense or offenses set out above, the defendant
      was finally convicted of the felony offense of AGGRAVATED
      ASSAULT WITH A DEADLY WEAPON, in the 195TH
      JUDICIAL DISTRICT COURT of DALLAS County, Texas, in
      Cause Number F0362924, on the 29TH day of AUGUST, 2003[.]

(CR: 14). The State later alleged in the notice pleading that Appellant had

another prior aggravated assault with a deadly weapon conviction as follows:

             Prior to the commission of the aforesaid offense by the said
      ESSIE HOPKINS, to-wit: on the 4th day of January in the
      CRIMINAL DISTRICT COURT NO. 3 of DALLAS County,
      Texas, in cause number F09-559-86 on the docket of said Court,
      the said ESSIE HOPKINS under the name of ESSIE HOPKINS,
      was duly and legally convicted in said last named Court of a
      felony, to-wit: AGGRAVATED ASSAULT WITH A DEADLEY
      [sic] WEAPON, as charged in the indictment, upon an indictment
      then legally pending in said last named Court and of which said
      Court had jurisdiction; and said conviction was a final conviction
      and was a conviction for an offense committed by him, the said
      ESSIE HOPKINS, prior to the commission of the offense

                                      2
      hereinbefore charged against him, as set forth in the first paragraph
      hereof[.]

(CR: 17). The State did not include the year of Appellant’s conviction for the

aggravated assault alleged in the notice pleading.

      Contemporaneously with the notice pleading, the State also filed a

notice of extraneous offenses, which provided Appellant with notice that,

during either guilt/innocence or punishment, the State might introduce his

extraneous offense of “Aggravated Assault Deadly Weapon,” with a “Date

Committed (on or about) June 7, 2009, Convicted January 4, 2010, Dallas

County, Texas,” as well as his “Aggravated Assault Deadly Weapon,” with a

“Date Committed (on or about) January 2, 2003, Convicted August 29, 2003,

Dallas County, Texas.” (CR: 18).

      At the punishment hearing, the State read the enhancement allegations

aloud, and Appellant pled true to them. (RR5: 7-8). In response to questioning

by the trial court, Appellant agreed that he had been to the “pen” before on the

two prior felony convictions listed in the enhancements:

            THE COURT: Okay. What I’m asking you is the two prior
      felony convictions, okay?

            [APPELLANT]: The other two?

            THE COURT: When you went to the pen before.

            [APPELLANT]: Oh, yeah.

                                       3
            THE COURT: That’s what I’m asking you about. Okay.
      Are those two prior felony convictions true or not true?

            [APPELLANT]: True.

(RR5: 8). The State then presented evidence of two additional extraneous

offenses committed by Appellant—an aggravated robbery in February 2013,

and an aggravated robbery in March 2013. (RR5: 12-30; 32-39; CR: 22). The

State did not offer penitentiary packets to prove the prior convictions.

      Appellant presented the testimony of his mother, Rebecca Hopkins, who

testified about the two aggravated assault convictions that resulted in

Appellant’s two trips to the penitentiary, one for a 2003 aggravated assault and

one for a 2009 aggravated assault. (RR5: 49-53, 56-57, 59-60). She testified that

the first time Appellant went to the penitentiary was for the 2003 aggravated

assault conviction. (RR5: 51, 58). He was initially granted probation for the

offense but was eventually sent to the penitentiary for five years. (RR5: 51, 58).

Hopkins testified about Appellant’s second stint in the penitentiary, for the

2009 aggravated assault, as follows:

            [THE STATE]: … Do you know what happened in the
      second case in 2009?

            [HOPKINS]: Second case?

            [THE STATE]: The second case where [Appellant] went to
      the penitentiary?


                                        4
     [HOPKINS]: Oh, him and a boy got into it over there by
where we live.

        [THE STATE]: Okay.

        [HOPKINS]: That’s when he shot at him or something like
that.

        …

      [THE STATE]: Okay. But you do know it was an
aggravated assault charge as well?

        [HOPKINS]: Uh-huh.

        [THE STATE]: And you also know it involved a firearm as
well?

        [HOPKINS]: Yeah.

       [THE STATE]: Okay. And you said that happened over
close to where we live[?]

        Do you know what apartment complex that was?

        [HOPKINS]: Huh-uh. All I know, it was behind Texaco.

        …

      [THE STATE]: Ma’am if you saw a picture of that
apartment complex, would you recognize it as the one where that
offense happened?

      [State shows witness Exhibit 1]: Does that look familiar to
you at all?

        [HOPKINS]: Yeah, that’s them.

        …

                                5
           [THE STATE]: … That’s the same apartment complex
      where this 2009 aggravated assault happened?

            [HOPKINS]: Yeah, because that’s what the officer had told
      me.

(RR5: 56-61). The State did not offer evidence of any other aggravated assaults

or other extraneous offenses committed by Appellant.

                        SUMMARY OF ARGUMENT

      The State was not required to plead a sequence of the prior convictions

on the face of the indictment. Appellant’s argument that, under Roberson, his

pleas of true where the pleadings did not allege a sequence required the State to

present evidence of the sequence is misplaced. In Roberson, the State, on the

face of the pleadings, alleged a factually-impossible sequence for the prior

convictions. Here, the State’s pleadings contained a simple clerical omission

that did not create a factually-impossible sequence; instead, the pleadings

simply did not allege a sequence at all. Appellant forfeited his right to

complain about the sufficiency of the evidence to prove the sequence of the

enhancement allegations because his pleas of true to the allegations proved

them, and he does not point to any evidence in the record that affirmatively

reflects the prior offenses did not occur in the statutorily-required sequence.

      Moreover, the State urges this Court to hold that the State is not required

to plead hyper-technical “magic words”—that the first conviction became

                                        6
final, then the offense leading to a later conviction was committed, then the

later conviction became final—in making indictment allegations of the

particular sequence of prior convictions. Our modern practice of notice

pleading should allow the State to notify the accused of the consequences of

his committing sequential prior convictions in some other form. Finally, a

rational trial court could have found that the State presented legally sufficient

evidence to prove the sequence of the two prior convictions.

                                ARGUMENT

        RESPONSE TO APPELLANT’S GROUND FOR REVIEW

      The Fifth Court of Appeals’ determination that the State was
      relieved of its burden to prove the prior convictions in the
      enhancement allegations by Appellant’s pleas of true does not
      conflict with prior decisions of this Court. The record contains
      no evidence affirmatively reflecting that the prior convictions
      were improperly used to enhance Appellant’s punishment, and
      Appellant has forfeited his right to a sufficiency review.

      In his petition for discretionary review, Appellant contends that the Fifth

Court of Appeals has decided an important question of law that conflicts with

the decisions of this Court. Appellant argues that the State’s omission of the

year of the prior conviction alleged in the notice pleading rendered its

chronological relationship to the prior conviction alleged in the indictment or

to the charged offense “not so clear.” (Appellant’s Brief, p. 3). Hence, under an

implied holding in Roberson v. State that a defendant’s “plea of true [to

                                       7
enhancement paragraphs], standing alone, is not sufficient evidence to prove

the sequence of the enhancement allegations,” the Fifth Court incorrectly

determined that the State was relieved of its burden of proving the sequence of

his prior convictions even though he pled true to the allegations. See Roberson v.

State, 420 S.W.3d 832, 838 (Tex. Crim. App. 2013). (Appellant’s Brief, p. 7).

He concludes that the evidence is insufficient to prove the enhancement

allegations. He is incorrect.

      1. Requirements of the habitual-offender statute

      Section 12.42(d) of the Texas Penal Code provides that a defendant’s

punishment may be enhanced if:

             [I]t is shown on the trial of a felony offense other than a state
      jail felony . . . that the defendant has previously been finally
      convicted of two felony offenses, 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 by imprisonment in the Texas
      Department of Criminal Justice for life, or for any term not more
      than 99 years or less than 25 years . . . .

Tex. Penal Code Ann. § 12.42(d). Thus, the chronological sequence of events

to be proved is as follows: (1) the first conviction became final, (2) the offense

leading to a later conviction was committed, (3) the later conviction became

final, and (4) the defendant committed the offense for which he presently

stands accused. Jordan v. State, 256 S.W.3d 268, 290-91 (Tex. Crim. App.

2008).
                                           8
      As a general rule, a defendant’s plea of true to an enhancement

paragraph relieves the State of its burden to prove a prior conviction alleged for

enhancement and forfeits the defendant’s right to appeal the sufficiency of the

evidence to prove the prior conviction. Roberson, 420 S.W.3d at 838. However,

there is a narrow exception to this rule. If the record “affirmatively reflects”

that a prior conviction was improper—for example, the conviction did not

occur in the sequence alleged by the indictment—then the evidence is

insufficient to support the habitual-offender enhancement even if the defendant

pled true to the enhancement. Id. (citing Ex parte Rich, 194 S.W.3d 508, 513

(Tex. Crim. App. 2006)); Mikel v. State, 167 S.W.3d 556, 559 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (holding evidence was insufficient to prove

the second enhancement paragraph where the evidence affirmatively reflected

that it was factually impossible for the defendant to have committed the first

prior offense after the conviction for the second prior offense was final).

   2. The State was not required to plead the sequence of Appellant’s prior convictions.

      Appellant acknowledges that the first enhancement allegation in the

indictment clearly alleged that he was convicted of a prior aggravated assault

on August 29, 2003. (Appellant’s Brief, p. 3). He argues, however, that,

because the sequence of the second allegation in the notice pleading is “not so

clear,” the State was required, under Roberson v. State, to present evidence of

                                           9
the sequence, even in the face of his true pleas. (Appellant’s Brief, p. 3). On

direct appeal, the Fifth Court of Appeals, citing Roberson v. State, held that the

enhancement paragraphs pled sequential prior convictions, and Appellant,

who pled true to the enhancements, had not identified any affirmative

evidence on the record reflecting that the convictions were improperly used to

enhance his punishment. Hopkins, 2015 Tex. App. LEXIS 5468, at *15-16.

      “Allegations of prior convictions for the purpose of enhancement give

pretrial notice to a defendant that the state intends to seek greater punishment

and allow a defendant to prepare a defense.” Roberson, 420 S.W.3d at 840.

Because their purpose is to provide notice, “it is not necessary to allege prior

convictions for the purpose of enhancement with the same particularity which

must be used in charging on the primary offense.” Williams v. State, 980

S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (quoting

Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986)). The State was not

required to plead the sequence of the prior convictions. See Jingles v. State, 752

S.W.2d 126, 129 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d)

(concluding section 12.42(d) does not require the State to allege sequentiality

in the pleadings). Pleas of true to enhancement allegations at the punishment

phase of trial constitute evidence and sufficient proof to support such

allegations. Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984).

                                       10
      Regardless of Appellant’s complaint about the “not so clear” sequential

allegations, the State was not required to plead the sequence of the prior

convictions. See Jingles, 752 S.W.2d at 129. The State obviously made a clerical

error by omitting the year of the January 4 aggravated assault conviction in the

notice pleading. The record reflects that, contemporaneously with the notice

pleading it filed on December 11, 2013, the State also filed a notice of

extraneous offenses with the district clerk and served it on Appellant. (CR: 18).

The notice of extraneous offenses included the full date of the aggravated

assault the State planned to introduce evidence of at trial as occurring on or

about June 7, 2009, with a final conviction date of January 4, 2010. (CR: 18).

Although the State alleged Appellant was finally convicted of the January 4

aggravated assault prior to the indicted offense, the State inadvertently omitted

the year of the conviction, and, hence, it alleged no sequence in relation to the

prior conviction listed in the indictment. At most, this obvious clerical

omission amounted to the State making no allegation of the sequence of the

convictions in relation to one another. Even if the State had included the year,

neither allegation makes reference to the other, only to the indicted offense, so

the State made no sequential allegations, which it was not required to do.

      Appellant argues that Roberson, the case relied upon by the Fifth Court in

holding his pleas of true were sufficient evidence to support the enhancement

                                       11
allegations, supports his position that the State was required to put on evidence

of the sequence of the prior convictions. In Roberson, the State also sought to

enhance the defendant’s conviction with two prior convictions; however, the

indictment, on its face, pled a factually-impossible sequence of prior

convictions, which would have been impossible to prove (and hence,

improperly used to enhance punishment) regardless of the defendant’s pleas of

true. Roberson, 420 S.W.3d at 836. Thus, this Court examined the record to

determine if the evidence supported the jury’s finding that the prior convictions

occurred in the statutorily required sequence, and determined that the evidence

was sufficient to support the finding. Id. at 841.

      Roberson, however, is distinguishable from the case at bar. Here, the

State’s allegations of an August 29, 2003 conviction that occurred prior to the

indicted offense and a January 4 conviction that occurred prior to the indicted

offense did not, on their face, create a factually-impossible prior-conviction

sequence as in Roberson; they simply amounted to the State making no

allegation regarding the sequence of the convictions in relation to one another.

Therefore, a situation is not presented where, due to factually-impossible

enhancement allegations, this Court is called upon to review the record to

ensure the evidence supported a finding that the prior convictions occurred in

the statutorily-required sequence.

                                        12
   3. Appellant’s pleas of true were sufficient proof of the sequence of the prior
      convictions.

      The enhancement allegations were read aloud at trial as they were

alleged in the indictment and the notice pleading, and the trial court clarified

with Appellant that they were the two aggravated assault convictions for which

he had served time in the penitentiary. (RR5: 7-8). Appellant stated that they

were, and pled true to them. (RR5: 7-8). Appellant’s pleas of true relieved the

State of its burden of proof and forfeited his right to challenge the sufficiency of

the evidence supporting enhancement, even where the enhancement

paragraphs contained no allegations as to the sequence of the prior

convictions. See, e.g., Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App.

1981); see also Childs v. State, No. 05-09-01225-CR, 2011 Tex. App. LEXIS 696,

at *12-13 (Tex. App.—Dallas Jan. 31, 2011, pet. ref’d) (mem. op., not

designated for publication) (holding Childs forfeited his right to complain

about the sufficiency of the evidence to prove the sequence of his prior

convictions where the pleadings did not allege the sequence, he pled true to the

enhancements, and he did not point to any affirmative evidence in the record

showing the enhancements were improper). Here, Appellant’s pleas of true

were sufficient evidence to prove the sequence of the prior convictions.




                                        13
   4. No evidence in the record affirmatively reflects that the prior convictions were
      improperly used to enhance punishment.

      Appellant does not point to any evidence in the record that affirmatively

reflects the prior convictions did not occur in the statutorily-required sequence.

Instead, he only contends that the record “affirmatively establishes that the

State did not prove” the sequence of his prior convictions, which, as discussed

above, the State was not required to do. (Appellant’s Brief p. 9). That,

however, is not the standard for calling into play the narrow exception for a

sufficiency review. See Roberson, 420 S.W.3d at 838. Hence, the Fifth Court

properly applied the applicable case law when it determined Appellant’s pleas

of true relieved the State of the burden to prove the prior convictions, and

nothing in the record established the convictions were improperly used for

enhancement purposes. This Court should overrule Appellant’s ground for

review and affirm the judgment of the Fifth Court of Appeals on this basis.

   5. This Court should hold the State is not required to plead “magic words” alleging
      the sequence of prior convictions to support punishment enhancement.

      As this Court stated in Roberson, “Evidentiary sufficiency is separate

from allegations and notice.” Roberson, 420 S.W.3d at 840. Under a due-

process analysis, the issue of whether Appellant’s sentence could be enhanced

by the prior convictions turns on whether he “received sufficient notice of the




                                         14
enhancements so that he had an opportunity to prepare a defense to them.”

Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).

      Appellant does not claim he did not receive notice of the State’s intent to

enhance his punishment with the two prior convictions. Indeed, the record

affirmatively reflects he received adequate notice. The indictment and notice

pleading described the prior convictions, their respective cause numbers, and

the convicting courts with particularity. He also does not allege that he was

misled or surprised by the State’s use of these prior convictions to enhance his

punishment. His mere allegation that the pleadings contained a clerical

omission rendering the sequence of the alleged convictions vague or unpled, in

the face of his true pleas, does not and should not entitle him to a sufficiency

review or destroy the effect of his pleas.

      This case presents a question for this Honorable Court that begs for

clarification: Is it true that a State’s pleading does not give adequate notice

under section 12.42(d) unless it expressly alleges that the defendant’s prior

convictions occurred in the required sequence? The facts here call upon this

Court to consider the extent to which the practice of “notice pleading” relieves

the State of the duty to include “magic words” alleging the sequence of prior

convictions in its pleadings. To answer the question, the Court might compare

the present situation to the development in the law concerning deadly weapon

                                        15
findings and the State’s duty to plead these magic words: “and the said defendant

used and exhibited a deadly weapon during the commission of the said offense.”

      This Court has found that article 1, section 19 of the Texas Constitution

requires notice and hearing on the issue of a deadly weapon finding. Ex parte

Patterson, 740 S.W.2d 766, 774 (Tex. Crim. App. 1987). A defendant must

have notice, in some form, that the State intends to pursue the entry of an

affirmative finding on the use and exhibition of a deadly weapon. Narron v.

State, 835 S.W.2d 642, 643 (Tex. Crim. App. 1992). Specifically pleading use

and exhibition of a deadly weapon in an indictment gives a defendant notice of

the issue and satisfies due course of law under article 1, section 19. Patterson,

740 S.W.2d at 776. Later, in Ex parte Beck, 769 S.W.2d 525, 528 (Tex. Crim.

App. 1989), this Court held that the murder-indictment allegation that Beck

caused the victim’s death by shooting him with a gun sufficiently notified Beck

that the deadliness of the gun would be an issue at trial. Ex parte Beck overruled

Ex parte Patterson to the extent it could be interpreted to conflict with that

holding. Beck, 769 S.W.2d at 528. Following Ex parte Beck, this Court held that

notice of the State’s intent to pursue an affirmative deadly weapon finding is

sufficient even if it is contained in an abandoned portion of an indictment

charging attempted capital murder. Grettenberg v. State, 790 S.W.2d 613, 615

(Tex. Crim. App. 1990).

                                          16
      As   with    deadly   weapon     findings,   prior   convictions   used   as

enhancements must be pled in some form, but they need not be pled in the

indictment. See Brooks v. State, 957 S.W.2d 30, 32 (Tex. Crim. App. 1997)

(holding that while prior convictions used as enhancements must be pled in

some form, they are not required to be pled in the indictment, and the requisite

notice was conveyed to the appellant by the State’s motion for leave to amend

the indictment to add a prior-conviction allegation and the trial court’s order

granting the motion); Luken v. State, 780 S.W.2d 264, 266 (Tex. Crim. App.

1989) (requiring that the notice be in writing).

      In the present case, section 12.42(d) already gives a defendant notice that

if the State chooses sequential prior convictions to show at his trial, then he

will be subject to enhanced punishment. This is similar to placing a defendant

on notice that if the State alleges that he caused another’s death, then he is

subject to enhanced punishment because it is self-evident that he used a deadly

weapon, and therefore, a deadly weapon finding may be entered in the

judgment. See, e.g., Crumpton v. State, 301 S.W.3d 663, 664-65 (Tex. Crim. App.

2009) (holding the jury’s guilty verdict in a criminally-negligent homicide case

was an adequate basis for the trial court to enter an affirmative deadly weapon

finding in the judgment).




                                        17
      As with deadly weapon findings, here, the sequence of the prior

convictions is self-evident because it is based on historic, immutable facts that

have already occurred. (In this case, the State’s notice of extraneous offenses,

which listed the year of the January 4 aggravated assault conviction, reminded

Appellant of this sequence.) The enhancement statute puts all defendants on

notice of the consequence of a showing of sequential prior convictions. Thus,

the State should not have to use magic words alleging that the defendant’s

prior convictions fall into a sequence to support enhancement of punishment.

This is no different than the present practice that allows a deadly weapon

finding to be supported by alleging and showing that a defendant caused

another’s death. See Beck, 769 S.W.2d at 528.

      The State should give a defendant notice of the prior convictions the

State intends to use for enhancement, and if the notice shows they are

sequential, the defendant has been informed by statute of the punishment

consequences. Here, Appellant’s pleas of true attached to the State’s pleadings

which alleged the existence of the prior convictions that were linked to

Appellant. His true pleas alleviated the State’s burden to prove these alleged

facts and he waived sufficiency review of the evidence to support those prior

convictions.




                                       18
      In addition, the State sufficiently notified Appellant that the sequence in

which these prior final convictions occurred would be a fact in issue at his

punishment hearing and that the State would show the requirements of section

12.42(d) were satisfied for enhancement purposes. Appellant was represented

by counsel, and it should be assumed that he understood the consequences of

his strategic choices. He could have chosen to plead either “not true” or

“true.” When he chose to plead true, he did so knowing the consequences if “it

[was] shown” by the State that the prior convictions were sequential under the

provisions of section 12.42(d). Tex. Penal Code Ann. § 12.42(d). The State’s

notice of intent to pursue enhancement of punishment for the sequential prior

convictions is sufficient even if it is contained in some form other than an

indictment allegation. There is no variance between Appellant’s true pleas and

the evidence upon which “it [was] shown” that these admitted priors satisfy

the requirements of section 12.42(d). Id. Appellant’s true pleas should extend

to the essential sequential facts which were not alleged in the State’s pleadings

but of which Appellant had notice. His true pleas relieve the State of the duty

to prove the facts alleged in the charge. See Dinn v. State, 570 S.W.2d 910, 915

(Tex. Crim. App. 1978). After such a plea is entered, “the defendant is barred

from bringing the State to task once again.” Long v. McCotter, 792 F.2d 1338,

1339 (5th Cir. 1986). Appellant’s pleas of true waived a sufficiency review.

                                       19
   6. The State proved the statutorily-required sequence of the prior convictions beyond
      a reasonable doubt.

      In his brief, Appellant implies that his pleas of true proved he was the

person convicted of the two prior aggravated assaults, just not the sequence.

This seemingly amounts to a third type of plea not authorized by Texas law—

a plea of “partly true.” What standard should an appellate court use to guide it

in a review of the evidence to support such a plea? Even if this Court were to

determine that, in the absence of sequential allegations, Appellant’s plea of

true amounted to no plea, or required the State to prove the sequence, the

evidence indeed proved the prior convictions.

      In a case where a defendant does not plead true to a prior enhancement

conviction, to establish a defendant’s conviction of a prior offense, the State

must prove beyond a reasonable doubt that 1) a prior final conviction exists,

and 2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d

919, 921 (Tex. Crim. App. 2007). Once the State provides prima facie evidence

of an enhancement conviction, the reviewing court presumes that the

conviction is final when faced with a silent record regarding finality. Fletcher v.

State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007). In addressing a complaint

about the legal sufficiency of the evidence at the punishment phase of trial, a

reviewing court views the evidence in a light most favorable to the trial court’s

ruling and determines whether any rational trier of fact could make the finding
                                          20
beyond a reasonable doubt. McFarland v. State, 928 S.W.2d 482, 496 (Tex.

Crim. App. 1996).

      Here, the only finding at issue, according to Appellant, is the sequence of

the prior convictions. The record affirmatively reflects Appellant pled true to

both enhancement allegations. In his brief, Appellant impliedly concedes that

his pleas of true admitted the prior convictions, and he makes no complaint

about their finality. (Appellant’s Brief, p. 9). Hence, the State proved the prior

convictions existed and were linked to Appellant. Despite Appellant’s

contention that the State presented no evidence as to the sequence of the priors,

a review of the record shows that a rational trial court indeed could have found

the State proved the statutorily-required sequence.

      The record evidence proved the historical context for the two prior

aggravated assaults. Although the State did not offer penitentiary packets

proving the sequence of the convictions, the use of pen packets and related

testimony is only one way of proving prior convictions; the State may also

prove them through the testimony of witnesses. See Wheat v. State, 442 S.W.2d

363, 367 (Tex. Crim. App. 1969); Brumfield v. State, 445 S.W.2d 732, 740 (Tex.

Crim. App. 1969); see also Tomlin v. State, 722 S.W.2d 702, 706 (Tex. Crim.

App. 1987) (although the pen packets did not contain an offense date for the

defendant’s second felony offense, testimony of the defendant confirmed that

                                       21
he committed the second felony offense after the first felony conviction was

final).

          Appellant agreed he had been to the penitentiary twice for the two

aggravated assaults used to enhance his punishment. (RR5: 7-8). Appellant’s

mother, Hopkins, testified that Appellant had been to the penitentiary twice for

aggravated assaults, once on a 2003 charge and once on a 2009 charge. (RR5:

49-53, 56-67, 59-60). Her testimony implied that the 2009 aggravated assault

occurred after Appellant had been released from prison on the 2003 aggravated

assault conviction. (RR5: 56-61). Hopkins’s testimony proved Appellant was

incarcerated for five years on the 2003 aggravated assault. (RR5: 58). Hopkins

testified that, after Appellant went to the penitentiary for five years, he then

was sent to the penitentiary after he committed a 2009 aggravated assault

“behind Texaco.” (RR5: 59). Although the State did not specifically mention

to Hopkins the cause numbers of Appellant’s 2003 and 2009 aggravated assault

convictions, viewed in the context of the entire punishment hearing, the

aggravated assaults that the State questioned Hopkins about clearly were the

aggravated assaults listed in the enhancement allegations, and her testimony

proved their sequence. See Tomlin, 722 S.W.2d at 705-06.

          Additionally, the trial court could have rationally inferred the 2003 and

2009 aggravated assaults about which the State questioned Hopkins were the

                                          22
two aggravated assaults used to enhance Appellant’s punishment. The State

offered evidence of two extraneous offenses of aggravated robbery and the only

additional offenses mentioned were the 2003 and 2009 aggravated assault

convictions the State used to enhance Appellant’s punishment. The State also

argued, without objection, at closing that Appellant had been in the

penitentiary for his first aggravated assault conviction, got out, committed the

second aggravated assault in 2009, and was again sent to the penitentiary.

(RR5: 69-70).

      From this evidence, the trial court could have rationally concluded that

Appellant committed the January 4 aggravated assault and was convicted for it

after he was finally convicted of the 2003 aggravated assault alleged in the

indictment. Nothing in the record affirmatively reflects the convictions did not

occur in the statutorily-required sequence. Cf. Mikel, 167 S.W.3d at 560

(holding no rational trier of fact could have found the second enhancement

paragraph to be true where the evidence affirmatively reflected it did not occur

in the proper sequence). Hence, the evidence is sufficient to prove the

statutorily-required sequence for habitual-offender-enhancement purposes, and

the convictions were properly used to enhance Appellant’s punishment. This

Court should overrule Appellant’s ground for review.




                                      23
                                    PRAYER

      The State prays that this Honorable Court will affirm the judgment of

the Fifth Court of Appeals.

                                             Respectfully submitted,

                                              /s/ Marisa Elmore
Susan Hawk                                   Marisa Elmore
Criminal District Attorney                   Assistant District Attorney
Dallas County, Texas                         State Bar No. 24037304
                                             Frank Crowley Courts Building
                                             133 N. Riverfront Blvd., LB-19
                                             Dallas, Texas 75207-4399
                                             (214) 653-3625
                                             (214) 653-3643 fax

           CERTIFICATE OF WORD-COUNT COMPLIANCE

        I hereby certify that the foregoing brief, including all contents except for
the sections of the brief permitted to be excluded by Rule 9.4(i)(1) of the Texas
Rules of Appellate Procedure, is 5,023 words in length according to Microsoft
Word 2010, which was used to prepare the brief, and complies with the word-
count limit in the Texas Rules of Appellate Procedure. See Tex. R. App. P.
9.4(i).

                                              /s/ Marisa Elmore
                                             Marisa Elmore

                        CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing brief was served on
Lawrence B. Mitchell, counsel for Appellant, by electronic communication
through eFileTexas.gov to judge.mitchell@gmail.com, on November 13, 2015.

                                              /s/ Marisa Elmore
                                              Marisa Elmore


                                        24
