                                                                         ACCEPTED
                                                                     06-14-00138-CR
                                                          SIXTH COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                                                10/2/2015 4:18:30 PM
                                                                    DEBBIE AUTREY
                                                                              CLERK

            No. 06-14-00138-CR

      IN THE COURT OF APPEALS
                                                    FILED IN
                                             6th COURT OF APPEALS
                FOR THE                        TEXARKANA, TEXAS
                                             10/2/2015 4:18:30 PM
  SIXTH JUDICIAL DISTRICT OF TEXAS               DEBBIE AUTREY
                                                     Clerk


           JAMIE LEE BLEDSOE

                                 Appellant

                    V

           THE STATE OF TEXAS

                                 Appellee


APPEALED FROM THE 71st DISTRICT COURT

      HARRISON COUNTY, TEXAS

     TRIAL COURT CAUSE #12-0374X


             BRIEF OF STATE


                        COKE SOLOMON
                        CRIMINAL DISTRICT ATTORNEY
                        HARRISON COUNTY, TEXAS
                        P.O. BOX 776
                        MARSHALL, TEXAS 75671
                        (903) 935-8408

     BY:    SHAWN ERIC CONNALLY
            ASSISTANT CRIMINAL DISTRICT ATTORNEY
            BAR #24051899
            ATTORNEY FOR THE STATE


 APPELLEE REQUESTS ORAL ARUGMENT

                    i
                                 No. 06-14-00138-CR

                              JAMIE LEE BLEDSOE
                                          Appellant

                                          V

                             THE STATE OF TEXAS
                                        Appellee

                __________________________________________

                NAMES OF ALL PARTIES AND ATTORNEYS
                __________________________________________

      The names and identifying information of all parties and attorneys were

correctly stated in Appellant’s brief, except for the following correction:



      Ebb Mobley was Bledsoe’s Original Appellate Counsel, not trial counsel.

Mr. Bledsoe represented himself Pro Se at trial.




                                          ii
                                         TABLE OF CONTENTS


NAMES OF ALL PARTIES AND ATTORNEYS .................................................. ii

INDEX OF AUTHORITIES.....................................................................................iv

PRELIMINARY STATEMENT OF THE NATURE OF THE CASE ..................... 1

         STATE’S REPLY ISSUE ONE: …………………………….……1

STATEMENT OF THE FACTS ............................................................................... 3

ARGUMENTS AND AUTHORITIESREPLY ISSUE ONE ................................... 3

PRAYER .................................................................................................................. 12

CERTIFICATE OF SERVICE ................................................................................ 12




                                                            iii
INDEX OF AUTHORITIES

CASES:

Ex Parte Parrott, 396 S.W.3d 531 (Tex.Crim.App 2013)………...……….….2, 7-8

Jordan v. State, 256 S.W.3d 286 (Tex.Crim.App. 2008)…………………...…2, 5-6

Diaz v. State (Tex.App.-Houston [1st Dist] unpublished opinion, June 18,
2015)…………………………………………………………………….….….2, 6-7

Wilkerson v. State, 391 S.W.3d 190, (Tex.App.Eastland 2012)…………..……..2, 7

Marshall v. State, 210 S.W.3d 618, (Tex.Crim.App. 2006)…………………….….3

Ex parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006)………………...….3, 8

Samaripas v. State, 454 S.W.3d 1 (Tex.Crim.App.2014)…………………….….4-5

Taylor v State, 462 S.W.3d 223 (Tex.App.-Houston [1st Dist.] 2015)…………...4-5

Polen v. State (Tex.App.Waco unpublished opinion, Feb. 13, 2014)……………...7

Wright v. State (Tex.App.Dallas unpublished opinion, Aug. 4, 2015)……………..8

Como v. State (Tex.App.Beaumont, unpublished opinion, June 26, 2013)……...8-9

Pelache v. State, 324 S.W.3d 568, 577 (Tex.Crim.App. 2010)………………...…10

McNatt v. State, 188 S.W.3d 198, 202-203 (Tex.Crim.App.2006)……….………11

STATUTES AND AMENDMENTS:

TEXAS PENAL CODE SEC. 30.02(c)(1)…………………………...…………….4

TEXAS PENAL CODE SEC. 12.35 (a) and (b)………………………………..….4

TEXAS PENAL CODE SEC. 12.425(b)………………………...……………4-5, 7
                                     iv
     PRELIMINARY STATEMENT OF THE NATURE OF THE CASE

      Appellant’s preliminary statement of the case is correct in his brief.



                          STATE’S REPLY ISSUE ONE

      The state concedes error that cause #08-0177X (state’s exhibit 50)

should not have been used for enhancement purposes of the appellant’s

current charge under Texas Penal Code 12.425(b). While the enhancement

allegation in #08-0177X was ultimately “punished” as a second degree

felony, it was still a state jail felony “punishable” under sec. 12.35 of the

Texas Penal Code for purposes of enhancement and did not lose its character

as a state jail felony conviction after enhancement.

      Counsel’s appellate brief argues the case should be remanded to the

trial court for a new punishment trial for sentencing limited to the state jail

felony punishment range, the state disagrees with this remedy.

      The state contends (with full disclosure of the difficult mountain it has

to climb) that it can be argued that Appellant was not harmed by the above

conceded error, because the state also presented evidence other final felony

convictions that could have properly been used for enhancement under sec.

12.425(b) under the reasoning adopted by the Court of Criminal Appeals in

                                           1
Ex Parte Parrott, 396 S.W.3d 531 (Tex.Crim.App 2013) and two

unpublished cases from Texas courts of appeals interpreting Parrott;

because in the current case Appellant: was aware he was subject to

enhancement, was not surprised by the introduction of all his prior

convictions, did not object to the introduction of all of his priors, and

admitted to the jury during the punishment trial that all of his prior

convictions were true. However, Parrott dealt with a writ of habeas corpus

illegal sentence claim and not a direct appeal as to the sufficiency of the

evidence of the enhancement allegations as in Jordan v. State, 256 S.W.3d

286 (Tex.Crim.App. 2008) and as such Appellant’s case may be

distinguishable from Parrott and more akin to Jordan.

      Based on the Jordan opinion and how Texas courts of appeals have

interpreted Jordan (see Diaz v. State, (Tex.App.Dallas unpublished opinion,

June 18, 2015))(see also Wilkerson v. State, 391 S.W.3d 190,

(Tex.App.Eastland 2012)) this Court might agree that a showing of harm is

unnecessary on direct appeal once error is found due to insufficient evidence

to support an enhancement allegation and Appellant is entitled to a new

punishment trial.




                                           2
      Should this court agree the Appellant is entitled to relief, the proper

remedy in this case is to grant relief and remand proceedings to the trial

court only for a new punishment trial in which the state has the option to

again enhance punishment to a second degree felony, assuming the evidence

introduced at the new punishment trial is two final non-state jail felony

convictions in sequence, after proper notice is given to the appellant.

      The state does not address any of Appellant’s pro se brief arguments

since Appellant is not entitled to dual or hybrid representation once

Appellant’s counsel files an appellate brief on his behalf. see Marshall v.

State, 210 S.W.3d 618, (Tex.Crim.App. 2006).



                         STATEMENT OF THE FACTS

                Appellant’s statement of facts is correct in his brief.



          ARGUMENTS AND AUTHORITIES REPLY ISSUE ONE

    The state concedes error in using #08-0177X (state’s exhibit 50) in order to

enhance Appellant’s current sentence. Appellant in his brief correctly states the

law that an illegal sentence may be challenged at any time. see Ex parte Rich, 194

S.W.3d 508, 511 (Tex.Crim.App. 2006). Appellant also correctly stated in his brief

                                          3
that the Appellant was charged with the state jail felony offense of Burglary of a

Building pursuant to Sec. 30.02(c)(1) of the Texas Penal Code and that normally

the punishment range pursuant for a state jail felony is by confinement in a state

jail for any term of not more than two years or less than 180 days, and a fine not to

exceed $10,000. TEXAS PENAL CODE SEC. 12.35 (a) and (b). The state gave

notice of its intent to enhance Appellant’s sentence. (CR Vol. 1, p. 138) Sec.

12.425 (b) provides as follows:

      “If it is shown on the trial of a state jail felony punishable under Section
      12.35(a) that the defendant has previously been convicted of two felonies
      other than a state jail felony punishable under Section 12.35(a), 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 felony of the second degree.” TEXAS
      PENAL CODE § 12.425(b)


         One of the priors listed in the state’s notice of enhancement is cause

#08-0177X (state’s exhibit 50). State’s exhibit 50 is a judgment of conviction for

Burglary of a Building, a state jail felony that was enhanced to a 2nd degree felony

punishment range because of two prior final felony convictions.

     According to the decisions reached in Samaripas v. State, 454 S.W.3d 1

(Tex.Crim.App.2014) and from the Houston Court of Appeals in Taylor v State,

462 S.W.3d 223 (Tex.App.-Houston [1st Dist.] 2015), it was improper to use

Appellant’s conviction in #08-0177X in order to enhance the Appellant’s current
                                          4
charge to a second degree felony punishment range. While those two cases involve

interpreting TEXAS PENAL CODE 12.42(d), the state concedes that identical

statutory language is used in 12.425(b). The plain language of the statute in Penal

Code 12.425(b) makes it clear that only felonies “other than state jail felonies

punishable under 12.35(a)” are eligible for enhancement under 12.425(b). While

Appellant’s prior conviction in #08-0177X was in the end “punished” as a 2nd

degree felony, it was nonetheless “punishable” under 12.35(a) when that

prosecution began and did not lose its character as a state jail felony conviction

after the punishment range had been enhanced. (Samaripas at 7-8).

     The Court of Criminal Appeals in Samaripas addressed this exact point in its

footnotes and points out the significant difference between the words “punished”

and “punishable”, noting that under the current wording of the statute, it would be

improper to use an offense that was “punishable” under 12.35(a) to enhance a

defendant under the current version of TEXAS PENAL CODE 12.42(d). (see

Samaripas at 8, footnote 5) The Taylor court reached the same conclusion applying

the Samaripas decision.

       In Jordan, the appellant appealed his conviction based on the sufficiency of

the evidence to prove the finality of his prior convictions. The state concedes that

in Jordan, the Court of Criminal Appeals clearly states that “the state’s failure to

                                          5
meet its evidentiary burden with respect to habitual offender enhancement ‘can

never be deemed harmless’ ” Jordan, 256 S.W.3d at 292. Leaving the state no

other option but to conclude that it is not necessary to show harm in order to be

entitled to a new punishment hearing when an improper enhancement allegation is

found to be error. However, it should be noted that in Jordan, the state did not

offer any evidence of any other prior convictions that could have properly been

used to enhance the sentence.

     The Court of Appeals in Dallas in Diaz v. State (Tex.App.-Houston [1st Dist]

unpublished opinion, June 18, 2015), involved a defendant who was enhanced with

two prior felony convictions under 12.42(d). In Diaz, the second felony offense

alleged should not have been used to enhance the punishment range because the

second offense was actually “committed” six months before Diaz was “convicted”

of the first felony alleged. Diaz at 3. (Meaning that the neither the first nor the

second felony conviction alleged was final prior to the commission of the other)

However, even though the defendant had other valid felony convictions that were

introduced into evidence that could have been used to enhance the sentence, the

Dallas Court of Appeals applied a very similar analysis to the Jordan case stating:

“Nevertheless, whether the state could have properly alleged habitual offender

enhancement, it is undisputed that it did not actually do so. And whether an error

                                           6
may warrant habeas corpus relief is a separate question from the issue we must

resolve here, which is whether we should undertake a harm analysis when this

issue is raised on direct appeal” Diaz at 4. Summarizing that even if the state had

other convictions admitted into evidence in which to enhance the sentence

properly, it did not do so, concluding a further harm analysis was not required. Id.

The Waco Court of Appeals in Polen v. State (Tex.App.Waco unpublished

opinion, Feb. 13, 2014) also applied the Jordan standard in finding that a showing

of harm is unnecessary on direct appeal of an improper enhancement. Polen at 2,

footnote 1 (see also Wilkerson v. State, 391 S.W.3d 190, (Tex.App.Eastland 2012).

      While Samaripas, Jordan, Diaz, and Polen involved the analysis of sec

12.42(d) of the Texas Penal Code, the state concedes the plain language of

12.425(b) is identical to 12.42(d) with regards to a “a felony other than a state jail

felony punishable under 12.35” TEXAS PENAL CODE 12.425(b).

         However, based on the reasoning of the Ex parte Parrott decision, it can

be argued that a showing of harm is necessary before Appellant’s conviction

should be overturned. The Court of Criminal Appeals concluded in Parrott that an

applicant must prove harm in order to obtain relief in a writ of habeas corpus

premised on an illegal sentence claim. Parrott at 534. Two Texas Courts of

Appeals have addressed the Parrott decision with similar facts to this case.

                                           7
Wright v. State (Tex.App.Dallas unpublished opinion, Aug. 4, 2015) and Como v.

State (Tex.App.Beaumont, unpublished opinion, June 26, 2013). In both cases, the

courts of appeals cited to Parrott as authority on a direct appeal of an illegal

sentence claim.

       In Wright, the appellant argued he received an illegal sentence because he

was given no notice of a prior conviction, did not plea true any allegations of a

prior conviction, and the state did not otherwise prove he had a prior conviction.

Wright at 2. In denying relief, the Dallas Court of Appeals held that a defendant

must show his sentence was “actually illegal”. Id (citing Ex parte Rich, 194

S.W.3d 508, 511 (Tex.Crim.App.2006) in order to be entitled to relief. And going

on to say that “appellant’s sentence was only illegal if the (prior) conviction was

unavailable for enhancement.” Id (citing Ex parte Parrott, 396 S.W.3d 531, 537-38

(Tex.CrimApp. 2013). In Wright the appellant never disputed that he had a prior

conviction that would have been available for enhancement and never disputed that

he was sentenced within the range of punishment had the state shown a prior

conviction. Id.

       Similar to the facts in Wright, in this case Appellant does not dispute that

he had several appropriate prior final felony convictions for enhancement, and

does not dispute that the range of punishment would have been correct had the

                                           8
state alleged one of Appellant’s many other final prior felony convictions for

enhancement.

      Furthermore, Como v. State (Tex.App.Beaumont, unpublished opinion 2013)

presents similar facts before the court today. In Como there was an improper

enhancement allegation that was used to enhance Como’s sentence, but the state

had other convictions that would have been proper to enhance the sentence. The

state argued Como was not harmed by the error. However, the seminal issue

distinguishing Como from the facts of this case is that in Como, no actual evidence

was ever offered of Como’s prior convictions that could have been used to

properly enhance his sentence, therefore the appellate court was unable to consider

evidence that was not part of the record on appeal. Como at 2-3. What makes

Appellant’s current case distinguishable is that the requisite prior convictions were

introduced without objection and before the jury in deciding what punishment to

assess and are part of the appellate record in this case. (RR Vol. 5, p. 10-11)(state’s

exhibits 50-55).

      The state concedes it is well established in Texas law that unpublished cases

are not authority on this court. However, guidance can be taken from such

opinions. When looking at the entire record in this case the question this court is

asked to answer is: where it is clear the Appellant was noticed his sentence would

                                           9
be enhanced (CR Vol. 1, p. 138), was not surprised by the introduction of all his

prior convictions (CR Vol. 1, p.124), did not object to their introduction (RR Vol.

5, p. 10-11), and even admitted to the jury that all of his prior convictions were true

(RR Vol. 5, p. 9-10 and 24-25) but the conviction in #08-0177X was improperly

used for enhancement, is it necessary that the Appellant show harm in order to be

entitled to relief? The state, while not conceding, believes this Court will rule the

answer to that question is no.

     Should the Court decide in the alternative that a showing of harm is necessary

in order to obtain relief, that state also contends that lack of proper enhancement

notice of the other final felony convictions is not harmful error, nor is the

Appellant not entering a plea of “true” or “not true” to any of his other prior

felonies; since the appellant was not surprised by their introduction, was aware his

criminal record was going to be discussed in punishment (CR Vol. 1, p.124),

offered no objection to their introduction (RR Vol. 5, p. 10-11), and even gave a

de facto plea of true to those allegations in his statements and arguments to the

jury. (RR Vol. 5, p. 9-10 and 24-25) see also Pelache v. State, 324 S.W.3d 568,

577 (Tex.Crim.App. 2010) (“Under a due process analysis, the issue is “whether

appellant received sufficient notice of the enhancements so that he had an

opportunity to prepare a defense to them.”)

                                          10
       Should the court rule Appellant is not required to show harm in order to be

entitled to relief; the proper remedy is to remand this cause to the trial court for a

new punishment hearing. If this case is remanded for a new punishment trial, the

state can file a new punishment enhancement under sec 12.425(b) of the Texas

Penal Code alleging the appropriate non-state jail felony enhancements, enhancing

the Appellant’s sentence to a second degree felony. see McNatt v. State, 188

S.W.3d 198, 202-203 (Tex.Crim.App.2006).




                                           11
                                     PRAYER

      The state respectfully prays this Court affirm the verdict and judgment of the

court below, and if not, remand for a new punishment trial in accordance with the

law as set out in McNatt v. State.

                                                   Respectfully Submitted
                                                   Coke Solomon
                                                   Criminal District Attorney
                                                   Harrison County, Texas

                                             By:       /s/ Shawn Eric Connally
                                                   ________________________
                                             Shawn Eric Connally
                                             Assistant Criminal District Attorney
                                             Bar #24051899

                          CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the foregoing Brief of the
Appellee has been sent to the attorney for Appellant, Bob Cole, on the 2nd day of
October, 2015.


                                             /s/ Shawn Eric Connally
                                             ____________________________
                                             Shawn Eric Connally

                      CERTIFICATE OF COMPLIANCE

     I hereby certify compliance with T.R.A.P 9.4(i)(3), and that the number of
words in this document is 2809.
                                           /s/ Shawn Eric Connally
                                           ____________________________
                                           Shawn Eric Connally

                                        12
