
                           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





