                                     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




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).
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
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



                                                  2
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.


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