

NO. 07-10-0291-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C
 
 FEBRUARY 1, 2011

 

 
 
JOE PAUL MEE, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 
 

 
 FROM THE 43RD DISTRICT
COURT OF TARRANT COUNTY;
 
NO. 1193427D; HONORABLE RUBEN GONZALEZ, JUDGE

 
 

 
 
Before QUINN, C.J., and HANCOCK and
PIRTLE, J.J.
 
MEMORANDUM OPINION
 
            Appellant, Joe
Paul Mee, was convicted by a jury of theft enhanced to a state jail felony due
to two or more prior theft convictions[1] and further enhanced to a
second-degree felony by two other prior felony convictions.[2]  He was sentenced to eleven years confinement.  On appeal, Appellant asserts the State's
evidence of the two convictions supporting enhancement to a second-degree
felony is legally and factually insufficient.[3]   The State concurs and confesses error.  We reverse the trial court's judgment on
punishment and remand for a new trial on that issue.
Analysis
            To establish that a defendant has
been convicted of a prior offense, the State must prove beyond a reasonable
doubt that (1) a prior conviction exists, and (2) the defendant is linked to
that conviction.  Flowers v. State, 220 S.W.3d 919, 921
(Tex.Crim.App. 2007).  We have
read the record and, other than introducing two documents establishing that a
person named Joe Paul Mee was convicted of two prior felonies, the State
offered no evidence at the punishment hearing to link Appellant to the prior
convictions.  Accordingly, we agree with
Appellant and the State that the evidence supporting enhancement to a
second-degree felony is legally insufficient. 
See Beck v. State, 719 S.W.2d
205, 210 (Tex.Crim.App. 1986) (certified copy of judgment and sentence normally
insufficient standing alone to prove prior convictions even if name on judgment
is the same as that of the defendant who is on trial).  
            Appellant asks that we vacate his
present sentence and remand the case for sentencing in accordance with the
range of punishment for a state jail felony. 
That we cannot do.  Bell v. State, 994 S.W.2d 173, 175
(Tex.Crim.App. 1999) (court of appeals erred by reforming judgment when "it
would not violate federal double jeopardy principles to allow the State 'a
second chance to present its proof of the prior burglary conviction'") (quoting
Monge v. California, 524 U.S. 721,
118 S.Ct. 2246, 141 L.Ed.2d 615 (1988)). 
See Barnes v. State, 70 S.W.3d
294, 303 (Tex.App.--Fort Worth 2002, pet. ref'd).           
Conclusion
Accordingly, we sustain Appellant's issues, affirm the trial court's
judgment of conviction, but we reverse the trial court's judgment on punishment
and remand the cause for a new punishment trial because the error identified by
Appellant relates to punishment only. 
See Tex. R. App. P. 43.2(d); Tex. Code Crim. Proc. Ann. 44.29(b) (West
Supp. 2010); Meineke v. State, 171
S.W.3d 551, 557 (Tex.App.—Houston [14th Dist.] 2005, pet. ref'd).  See
also Braun v. State, No. 02-00008-13-CR, 2009 Tex. App. LEXIS 1510, at
*10-11, *16 (Tex.App.--Fort Worth Mar. 5, 2009, pet. ref'd) (mem. op. not
designated for publication); Jordan v.
State, No. 02-01-00530-CR, 2003 Tex. App. LEXIS 4737, at *6-9
(Tex.App.--Fort Worth June 5, 2003, no pet.) (mem. op. not designated for
publication); Piper v. State, No.
14-99-00649-CR, 2000 Tex. App. LEXIS 7418, at *2-3 (Tex.App.--Houston [14th
Dist.] Nov. 2, 2000, no pet.) (mem. op. not designated
for publication).     
                                                                                                Patrick
A. Pirtle
                                                                                                      Justice  
Do not publish.




[1]See Tex. Penal Code Ann. § 31.03(e)(4)(D) (West Supp. 2010).  



[2]See Tex. Penal Code Ann. § 12.42(a)(2) (West Supp. 2010).



[3]While this appeal was pending, the Court of
Criminal Appeals held that appellate courts were to review the sufficiency of
evidence in a criminal case using only the legal sufficiency standard.  See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010).  Judge Hervey delivered the opinion in Brooks, joined by Judges Keller,
Keasler, and Cochran; and Judge Cochran delivered a concurring opinion, joined
by Judge Womack.  Although we are not
bound by a decision of four judges, Pearson
v. State, 994 S.W.2d 176, 177 n.3 (Tex.Crim.App. 1999), we read the
combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary
sufficiency standard of review distinct from legal sufficiency
 


