                          NUMBER 13-17-00150-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


MARCO MEDRANO,                                                               Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 319th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

           Before Justices Rodriguez, Contreras, and Hinojosa
              Memorandum Opinion by Justice Rodriguez

       By one issue, appellant Marco Medrano asserts that there was legally insufficient

evidence to demonstrate that he had a prior felony conviction, for purposes of the habitual

offender statute. We reverse and remand for a new trial on punishment only.
                                  I.     BACKGROUND

      A grand jury indicted Medrano for aggravated assault and two counts of attempted

aggravated robbery. The indictment alleged that each count should be enhanced due to

Medrano’s prior felony conviction in 2009 for burglary of a habitation.       Finally, the

indictment alleged that Medrano committed both offenses with the aid of a deadly

weapon: a hammer.

      At a bench trial, witnesses testified that Medrano brandished a hammer and

threatened his neighbors while under the influence of drugs. Medrano began to smash

the windows of their vehicles and houses, and he swung the hammer at one neighbor,

Nora Guzman, striking and breaking her left arm. The trial court found Medrano guilty of

(1) one count of aggravated assault, a second-degree felony, see TEX. PENAL CODE ANN.

§ 22.02(b) (West, Westlaw through 2017 1st C.S.); and (2) two counts of the lesser-

included offense of attempted robbery, a third-degree felony.       See id. §§ 15.01(d),

29.02(b) (West, Westlaw through 2017 1st C.S.).

      During the punishment phase, the State asked the trial court to take judicial notice

of Medrano’s pre-sentence investigation report (PSI). The State asserted that the PSI

report contained information concerning Medrano’s prior conviction for burglary, for

purposes of proving the repeat-felony-offender enhancement.        Counsel for Medrano

indicated that he had the opportunity to review the PSI, and he had no objection to the

trial court taking judicial notice of the PSI. The trial court responded, “Okay. State, do

you want to close?” The PSI report does not appear in the record.




                                            2
        The parties made closing argument, and the trial court pronounced its sentence.

For the aggravated assault count, the trial court sentenced Medrano to thirty-five years in

prison.     For the two attempted robbery counts, the trial court found that both were

punishable as second-degree felonies rather than third-degree felonies, and it sentenced

Medrano to fifteen years for each count.1 All sentences were to run concurrently.

        After sentencing, the State sought to confirm that the trial court had, in fact, found

the repeat-felony-offender enhancement allegation to be true:

        The State:                       Just for the record, are you finding the [repeat-
                                         felony-offender] judgment true, the prior
                                         judgment? Just so I can . . .

        The Trial Court:                 Well, did you-all submit evidence of that?

        The State:                       I think we—

        The Trial Court:                 There’s a stipulation as to that.

        The State:                       We stipulated.

        The Trial Court:                 Then that’s true. I find that true.           Yes.    All
                                         right. Thank you-all very much.

See id. § 12.42 (West, Westlaw through 2017 1st C.S.). The proceeding concluded, and

this appeal followed. No stipulation appears in the record on appeal.

                                          II.     DISCUSSION

        By his sole issue, Medrano disputes the notion that he stipulated to a prior felony

conviction.    Medrano observes that the trial court found the habitual-felony-offender

enhancement to be true and enhanced the punishment range for each of his convictions



        1  The trial court made a deadly weapon finding as to the aggravated assault conviction, but not as
to the attempted robbery convictions.
                                                    3
accordingly. Medrano contends, however, that the record is devoid of any evidence

demonstrating a stipulation or a plea of true to the enhancement. If there is no affirmative

evidence in the record showing a plea of “true” to an enhancement allegation, the State

must prove the allegation beyond a reasonable doubt.                 Wood v. State, 486 S.W.3d 583,

588 (Tex. Crim. App. 2016). The State does not dispute this point, and we agree that

the record contains no evidence of a stipulation or plea of true.2

        The State instead responds that even if Medrano did not stipulate to the prior

conviction, it can be established through Medrano’s PSI report. However, the State has

filed—and we have granted—two motions to supplement the record.                                Even after

supplementation, the PSI does not appear in the record. Because the PSI report is

absent, we cannot rely on the PSI as a basis for affirmance, as we explain.

        In reviewing the sufficiency of the evidence to support a finding that an

enhancement is true, we consider all the evidence in the light most favorable to the trial

court’s finding and determine whether a rational trier of fact could have found the essential

elements beyond a reasonable doubt. Id. at 589. To establish that the defendant has

been convicted of a prior offense, the State must prove that (1) a prior, final conviction

exists, and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d

919, 921 (Tex. Crim. App. 2007); see Ex parte Pue, __S.W.3d__, __, No. WR-85,447-01,


        2  The judgment recites that Medrano entered a plea of true to the enhancement. However, that
recitation does not necessarily relieve the State of its burden to introduce evidence of either (1) a plea of
true to the repeat-offender enhancement or (2) the prior conviction itself. See Wood v. State, 486 S.W.3d
583, 589 (Tex. Crim. App. 2016). As in Wood, Medrano “pled not guilty to the indictment, offered testimony
and evidence at the bench trial in an attempt to refute the officer’s testimony, and requested probation at
punishment.” See id. Because Medrano entered a plea of not guilty to the indictment, and the record
shows that he disputed his guilt and punishment, we will not presume that he pled “true” to the enhancement
paragraph of the indictment, regardless of the judgment recitation. See id.
                                                     4
2018 WL 1109471, at *3 (Tex. Crim. App. Feb. 28, 2018) (addressing finality). No

specific document or mode of proof is required to prove these two elements. Flowers,

220 S.W.3d at 921.

        A trial court may take judicial notice of a prior conviction described in a PSI report,

which may be sufficient to prove an enhancement allegation if no party objects to the

accuracy of the PSI information. Jackson v. State, 474 S.W.3d 755, 757 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d) (cataloging cases); see Montgomery v. State, 876

S.W.2d 414, 415–16 (Tex. App.—Austin 1994, pet. ref’d) (per curiam); see also Mayfield

v. State, 757 S.W.2d 871, 875 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (op. on

reh’g).3 To fall within this rule, however, the PSI report must be made a part of the record.

See Montgomery, 876 S.W.2d at 415; Jackson, 474 S.W.3d at 758.

        The Texas Court of Criminal Appeals has also issued an unpublished opinion

which endorses judicial notice of a prior conviction described in a PSI report, so long as

it appears in the appellate record. See Jackson, 474 S.W.3d at 757 (discussing Brewer

v. State, No. 1270–03, 2004 WL 3093224, at *2–3 (Tex. Crim. App. May 19, 2004) (op.,

not designated for publication)).           As the Jackson court recognized, the unpublished

Brewer opinion is not precedent, and we do not cite it as authority, but its reasoning is

nonetheless “illustrative and persuasive.” See id. In particular, Brewer clearly explains

        3 In Montgomery v. State, the court cited several justifications for its holding: (1) it was appellant
himself who requested the PSI report which described the prior convictions, and the district court relied on
the PSI report without objection; (2) appellant was given an opportunity to dispute the convictions, but
instead endorsed the PSI report’s accuracy; (3) the Legislature expressly authorized the district court to
consider PSI reports when assessing punishment; (4) the trial record showed that all parties assumed the
existence of the convictions; and (5) the Texas Court of Criminal Appeals has recognized “a variety of ways
to prove a previous conviction,” suggesting that a “flexib[le]” approach is warranted. See 876 S.W.2d 414,
415–16 (Tex. App.—Austin 1994, pet. ref’d) (per curiam); Mayfield v. State, 757 S.W.2d 871, 875 (Tex.
App.—Houston [1st Dist.] 1988, pet. ref’d) (op. on reh’g) (similar).
                                                      5
why judicial notice of a prior conviction from a PSI report should be permitted, but only if

the PSI report appears in the record:

       The purpose of compiling a PSI is to fully inform the trial court of the
       circumstances of the offense, the defendant’s background, education, prior
       offenses, and prospects for rehabilitation, and the harm, if any, caused to
       the victim of a crime. There would be little purpose in compiling this report
       if the trial judge cannot rely upon the information contained within it.
       Because the Texas Legislature gave the defendant an explicit statutory right
       and opportunity to object to the factual accuracy of its contents and to
       correct any mistakes or misstatements, it surely intended that the trial judge
       would rely upon unobjected-to facts contained within that PSI when
       assessing an appropriate punishment.

       . . . Prior Texas cases have . . . held that a trial judge may take judicial notice
       of the truth of the contents of PSI reports under Rule 201 of the Texas Rules
       of Evidence when a defendant does not object to them.

       . . . Facts that are capable of accurate and ready determination by resort to
       sources whose accuracy cannot reasonably be questioned are known as
       “verifiably certain facts.” A party who requests the court to take judicial
       notice of a verifiably certain fact must generally provide the court with written
       source material. . . . Judicial notice of “verifiably certain facts” dispenses
       with the need for a sponsoring witness, a formal offer of proof, or admissible
       documents, but it still requires substantiation with source material. To
       facilitate appellate review, the source relied upon for notice, as well as other
       references consulted in establishing the authoritativeness of the primary
       source, should be set forth in the record.

Brewer, 2004 WL 3093224, at *3 (quotations and citations omitted).

       The PSI does not appear in the record, and therefore the State may not rely upon

judicial notice of that document to demonstrate the existence of a prior conviction. See

TEX. R. EVID. 201(b)(2); Montgomery, 876 S.W.2d at 415.              Finding no other factual

support for the prior conviction, we conclude that there is insufficient evidence to support

the enhancement of Medrano’s conviction. See Wood, 486 S.W.3d at 589; see also TEX.

PENAL CODE ANN. § 12.42. Such a failure of proof is not subject to a harmless error


                                               6
analysis. Ex parte Miller, 330 S.W.3d 610, 624 (Tex. Crim. App. 2009); see Jordan v.

State, 256 S.W.3d 286, 291 (Tex. Crim. App. 2008).

       For the aggravated assault count, the trial court sentenced Medrano to thirty-five

years in prison—a punishment above the maximum of twenty years for a second-degree

felony with no enhancement. See TEX. PENAL CODE ANN. § 12.33(a) (West, Westlaw

through 2017 1st C.S.) (punishment range); id. § 22.02(b) (aggravated assault). For the

two attempted robbery counts, the trial court sentenced Medrano to fifteen years in

prison—a punishment above the maximum of ten years for an unenhanced third-degree

felony. See id. § 12.34(a) (West, Westlaw through 2017 1st C.S.) (punishment range);

id. § 15.01(d) (criminal attempt); id. § 29.02(b) (robbery). A sentence that is outside the

maximum or minimum range of punishment is unauthorized by law and therefore illegal.

Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (en banc).

       This illegality requires reversal, but it does not bar the use of the enhancement in

any subsequent proceeding.       “When a reviewing court determines that the State’s

evidence fails to show that an enhancement allegation is true, the Double Jeopardy

Clause does not bar the use of the enhancement conviction during a retrial on

punishment.”   Jordan, 256 S.W.3d at 292.       The State’s failure to present sufficient

evidence to support the enhancement allegations requires us to reverse and remand for

a new trial on punishment only, during which the State may present evidence concerning

Medrano’s prior convictions.    See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West,

Westlaw through 2017 1st C.S.); Hartwell v. State, 476 S.W.3d 523, 541 n.9 (Tex. App.—

Corpus Christi 2015, pet. ref’d); Wise v. State, 394 S.W.3d 594, 600–01 (Tex. App.—

                                            7
Dallas 2012, no pet.); Dixon v. State, 932 S.W.2d 567, 571 (Tex. App.—Tyler 1995, no

pet.).

         We sustain Medrano’s sole issue.

                                    III.    CONCLUSION

         We reverse and remand the matter to the trial court for a new trial on punishment.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of April, 2018.




                                             8
