Opinion filed August 3, 2017




                                             In The


          Eleventh Court of Appeals
                                          __________

                                    No. 11-15-00209-CR
                                        __________

                      JOE ANGEL HERNANDEZ, Appellant
                                                V.
                         THE STATE OF TEXAS, Appellee


                         On Appeal from the 244th District Court
                                   Ector County, Texas
                             Trial Court Cause No. B-44,526


                          MEMORANDUM OPINION
      The jury found Joe Angel Hernandez guilty of the felony offense of driving
while intoxicated, subsequent offense.1              Appellant opted to have the trial court
assess his punishment. During the punishment phase of trial, Appellant pleaded




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          TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b) (West Supp. 2016).
“true” to two enhancement allegations, and the trial court assessed Appellant’s
punishment at confinement for fifty years.
        On appeal, Appellant asserts in his first issue that the trial court erred when it
enhanced his sentence because the State failed to prove the required sequence for
the enhancement convictions. In his second issue, Appellant asserts that his trial
counsel rendered ineffective assistance of counsel during the punishment phase of
the trial because trial counsel failed to notice or to object to the improper sequence
of the prior convictions. We affirm Appellant’s conviction but remand the cause to
the trial court for a new punishment hearing.
                                   I. Evidence at Trial
        Appellant does not challenge the finding of guilt in this case.           At the
punishment hearing, the State presented evidence of the two prior felony convictions
that were alleged for enhancement purposes—robbery and murder. The robbery
conviction took place on October 16, 2000, but the crime was committed in 1999;
the murder conviction took place on April 4, 2003, but the crime was committed in
1998.
                                 II. Standard of Review
        We review the sufficiency of the evidence presented at the punishment phase
of trial under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979).
Wood v. State, 486 S.W.3d 583, 589 (Tex. Crim. App. 2016); Young v. State, 14
S.W.3d 748, 753 (Tex. Crim. App. 2000). The Jackson standard requires that we
examine all of the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the enhancement allegation to be
true beyond a reasonable doubt. Wood, 486 S.W.3d at 589; see Jackson, 443 U.S.
at 319.
        A defendant may challenge the sufficiency of the evidence supporting a
finding that an enhancement paragraph is true, even if the defendant pleaded true to
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the enhancement at the punishment hearing. Jordan v. State, 256 S.W.3d 286, 292
(Tex. Crim. App. 2008) (finding that enhancement paragraph is true is subject to
legal sufficiency review); Mikel v. State, 167 S.W.3d 556, 560 (Tex. App.—Houston
[14th Dist.] 2005, no pet.).
                                     III. Analysis
      Appellant asserts that the trial court erred when it enhanced his sentence
because the State did not prove the proper sequence for the enhancement
convictions. The State has conceded that it failed to prove the proper sequence. We
agree. The Court of Criminal Appeals in Tomlin v. State outlined that the sequence
is as simple as (1) first conviction becomes final; (2) second crime is committed, and
defendant is convicted; (3) conviction for the second crime is finalized; and (4) the
crime that the defendant is presently charged with is committed. 722 S.W.2d 702,
705 (Tex. Crim. App. 1987). Where no evidence is shown that the offenses were
committed and finalized in the proper sequence, the defendant’s sentence cannot be
enhanced under the State’s habitual offender statute. Jordan, 256 S.W.3d at 291.
      Where, as here, the State has failed to prove the chronological sequence of the
punishment enhancement allegations, the deficiency will never be considered
harmless. Id. at 292. In Appellant’s case, the evidence reflects that he committed
both prior offenses before either conviction became final. Because the State has
failed to satisfy its burden to prove the enhancement allegations in sequence, we
must remand the cause for a new punishment hearing. See Id. at 292–93. We sustain
Appellant’s first issue. In light of the resolution of this issue in favor of Appellant,
we need not address his second issue.
                               IV. This Court’s Ruling
      We affirm the judgment of the trial court as to the conviction of Appellant,
but we reverse the judgment insofar as it relates to punishment. We remand this


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cause to the trial court for a new punishment hearing. See TEX. CODE CRIM. PROC.
ANN. art. 44.29(b) (West Supp. 2016).




                                               MIKE WILLSON
                                               JUSTICE


August 3, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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