                                MEMORANDUM OPINION
                                       No. 04-10-00326-CR

                                         Michael ROWE,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                    From the 187th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009CR8160
                          Honorable Raymond Angelini, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice (concurring in the judgment only)
                 Marialyn Barnard, Justice

Delivered and Filed: August 24, 2011

AFFIRMED

           A jury found appellant Michael Rowe guilty of burglary with intent to commit

aggravated assault. The trial court sentenced him to sixty years confinement in the Texas

Department of Criminal Justice–Institutional Division and assessed a $2,000 fine. On appeal,

Rowe raises a single issue in which he contends the evidence was insufficient to support the

jury’s finding of true on the enhancement allegations. We affirm the trial court’s judgment.
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                                           Background

       A detailed rendition of the facts is unnecessary to our disposition of the appeal.

Accordingly, we will provide only a brief factual recitation for context and as necessary for

resolution of Rowe’s issue.

       Rowe forcibly entered the complainant’s home in the early morning hours of May 15,

2009. He then entered the complainant’s bedroom and shot her five times. Fortunately, the

complainant survived. Based upon statements from the complainant as well as another witness,

the police arrested Rowe. Rowe was indicted for the felony of burglary of a habitation with

intent to commit aggravated assault. The indictment also alleged, for purposes of enhancement,

that Rowe had committed two prior felonies before the instant offense.

       After considering the evidence, the jury found Rowe guilty and the case proceeded to the

punishment phase. At the punishment phase, the State introduced evidence of two previous

Illinois convictions for the purpose of enhancing Rowe’s sentence to that of “repeat offender”

status, thereby increasing the time in prison Rowe might have to serve.

       To prove the prior convictions, the State offered into evidence pen packets from Illinois

showing Rowe had been convicted of kidnapping and aggravated battery. Although the trial

court did not admit all of the information in the packets, it did admit into evidence portions of the

packets that included the judgments of conviction. The State also introduced testimony from a

member of the Bexar County Sheriff’s Office Records Identification Section, which established

Rowe was the person who had been convicted of the Illinois offenses. The witness arrived at the

conclusion through a comparison of fingerprints on the prior Illinois judgments and Rowe’s

prints which were obtained when he was arrested and booked in Texas.




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       The jury was instructed, with regard to the enhancement allegations, to return a verdict of

“true” if it found beyond a reasonable doubt that the State had proven either of the prior offenses

were final, felony convictions. The jurors were not required to specify which, if either, of the

prior felonies it found to be true. The jury found at least one of the prior felony convictions

“true,” and recommended a sentence of sixty years. After the trial court rendered its judgment,

Rowe perfected this appeal.

                                            Analysis

       In a single issue, Rowe contends the evidence is insufficient to support the jury’s finding

of “true” to the enhancement allegation. More specifically, Rowe argues no rational trier of fact

could have found beyond a reasonable doubt: (1) he committed the prior felonies, or (2) that the

convictions were final.

                                       Standard of Review

       The Court of Criminal Appeals has held only one standard is to be used to evaluate the

sufficiency of the evidence: legal sufficiency. Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.

Crim. App. 2010) (plurality op.). Accordingly, we must review the sufficiency of the evidence

in this case under the legal sufficiency standard established in Jackson v. Virginia, 443 U.S. 307

(1970). See Brooks, 323 S.W.3d at 906.

       When reviewing the legal sufficiency to support a jury’s finding of true to an

enhancement allegation, we view the evidence in the light most favorable to the jury’s answer to

determine whether a rational trier of fact was justified in finding the enhancement allegation

“true” beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899. We must keep in mind that

the reviewing court does not sit as a thirteenth juror and may not substitute its judgment for that

of the fact finder by re-evaluating the weight and credibility of the evidence. Id. at 901–02;


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Martinez v. State, 980 S.W.2d 662, 664 (Tex. App.—San Antonio 1998, pet. ref’d). We must

defer to the fact finder’s resolution of conflicting evidence unless the resolution is irrational.

Brooks, 323 S.W.3d at 902, 907.

                                            Application

       As for Rowe’s claim that the evidence is insufficient because the State failed to establish

either prior Illinois offense was a felony, we disagree. Although it is true, as Rowe alleges, the

prosecution did not introduce evidence specifically establishing the grade of offense for either of

the Illinois convictions, the State was not required to do so.

       To enhance punishment of a first degree felony offense with a prior offense, the State

must show the defendant “has been once before convicted of a felony.” TEX. PENAL CODE ANN.

§ 12.42(c)(1) (West 2011). The State need not, however, prove the prior felony is of a particular

grade or would be a felony under Texas law because section 12.41(1) of the Penal Code

specifically provides that convictions not obtained under the Texas Penal Code are felonies of

the third degree if imprisonment in a penitentiary is a possible punishment. See id. § 12.41(1).

Texas courts have held this section applies to out-of-state convictions. See, e.g., Davis v. State,

645 S.W.2d 288, 292 (Tex. Crim. App. 1983); Tucker v. State, 136 S.W.3d 699, 701 (Tex.

App.—Texarkana 2004, no pet.); Golden v. State, 874 S.W.2d 366, 368 (Tex. App.—Beaumont

1994, pet. ref’d). Thus, the State was only required to prove Rowe’s prior offenses were

punishable by imprisonment in a penitentiary.          See id.; see also TEX. PENAL CODE ANN.

§ 12.41(1).

       As noted above, the State introduced, and the trial court admitted into evidence, the

Illinois judgments. Although the judgments did not refer to Rowe’s prior offenses as felonies,

they establish he was sentenced to a term of years in the Illinois Department of Corrections, the



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state’s penitentiary. Thus, we hold the State produced sufficient evidence to establish the prior

Illinois convictions were felonies for purposes of enhancement. See TEX. PENAL CODE ANN.

§ 12.41(1).

         Rowe also contends the evidence was insufficient to support the jury’s finding on the

enhancement allegation because the State failed to establish either of the prior convictions were

final. Again, we disagree.

         Contrary to the State’s assertion, a prior conviction must be final before the commission

of the primary offense for it to be used to enhance punishment. 1 Jordan v. State, 36 S.W.3d 871,

873 (Tex. Crim. App. 2001); Russell v. State, 790 S.W.2d 655, 657 (Tex. Crim. App. 1990) (en

banc). Generally, a conviction from which an appeal has been taken is not considered final until

it is affirmed by the appellate court and that court’s mandate becomes final. Jones v. State, 77

S.W.3d 819, 822 (Tex. Crim. App. 2002).                   However, “‘[a]fter the State establishes that a

defendant has been previously convicted,’” the appellate court must presume the conviction is

final “when faced with a silent record regarding such.’” Id. (quoting Johnson v. State, 784

S.W.2d 413, 414 (Tex. Crim. App. 1990)). Accordingly, when the State offers into evidence a

certified copy of a judgment and sentence, it has made a prima facie case that the conviction

reflected in the judgment and sentence is a final conviction absent any evidence to the contrary.

Jones, 77 S.W.3d at 822. “If the judgment of conviction has been set aside, vacated or appealed,

the defendant must offer some evidence to support that fact.” Id. at 823. Only if the defendant




1
  The State contends that because section 12.42(c) does not state the defendant must have been “finally convicted”
of another felony before it can be used for enhancement, unlike section 12.42(a), it need not prove the convictions
were final. The court of criminal appeals has answered this question in opposition to the State’s contention. In
Jordan v. State, the court of criminal appeals noted the absence of the word “finally” from section 12.42(c), but held
that despite the language, the word “conviction” means a “final conviction.” 36 S.W.3d at 873–74.


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offers such evidence is the State required to prove beyond a reasonable doubt that the conviction

has been affirmed and the mandate has issued. Id.

        Here, the evidence introduced by the State and admitted by the trial court establishes that

at least one of the two prior convictions was a final conviction. One of the Illinois judgments

shows in its certification that it was appealed, but the certification for the other conviction

contains no such indication. We hold this is some evidence establishing that one of the prior

convictions was not appealed. This was sufficient to shift the burden to Rowe to provide some

evidence the conviction was appealed. Rowe provided no such evidence; he took no action to

challenge either conviction. 2 We therefore hold there was some evidence to establish at least one

of Rowe’s prior convictions was final.

        Because there was evidence to establish Rowe’s prior convictions were felonies, and that

at least one of the prior convictions was final, we overrule his sufficiency issue and hold the

evidence was sufficient to support the jury’s finding of true to the enhancement allegation.

        Though included in his argument that the evidence was insufficient, Rowe actually makes

a separate argument that he is entitled to reversal because the jury’s finding of “true” was not

unanimous. The court of criminal appeals, in an opinion addressing another portion of section

12.42 of the Penal Code, concluded there was no jury unanimity issue where jurors could have

found between any of the numerous combinations of prior offenses to conclude that the

defendant was a habitual offender. Valdez v. State, 218 S.W.3d 82, 84–85 (Tex. Crim. App.

2007). In other words, when more than one prior felony conviction is presented for enhancement

purposes, jury unanimity is not required on any specific prior conviction to sustain a finding of

“true.” See id. Although Valdez dealt with section 12.42(d) we find no basis to decline to adopt


2
 We note Rowe initially pled true to the enhancements. In his words, he only changed his plea because he “just
want[ed] to see if they have it.”

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its rationale for enhancements arising under section 12.42(c). We therefore hold an absence of

jury unanimity, if it in fact existed, is no bar to enhancement of Rowe’s conviction, and we

overrule this complaint.

                                        CONCLUSION

       Based on the foregoing, we overrule Rowe’s complaints and affirm the trial court’s

judgment.


                                                      Marialyn Barnard, Justice


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