                                                                                      ACCEPTED
                                                                                  03-17-00271-CR
                                                                                        21259056
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                              12/13/2017 10:35 AM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                       No. 03-17-00271-CR

                  IN THE COURT OF APPEALS               FILED IN
                                                 3rd COURT OF APPEALS
             FOR THE THIRD JUDICIAL DISTRICT OF      AUSTIN, TEXAS
                   TEXAS AT AUSTIN, TEXAS       12/13/2017 10:35:48 AM
                                                             JEFFREY D. KYLE
                                                                  Clerk
     *********************************************************

     THOMAS RICHIE McBRIDE
                               VS.

          THE STATE OF TEXAS
     *********************************************************

          ON APPEAL FROM THE 27th DISTRICT COURT
                  OF BELL COUNTY, TEXAS
                      Cause No. 76454

                    **************************
                     STATE’S BRIEF
                    **************************

                           HENRY GARZA
                           DISTRICT ATTORNEY
                           27th Judicial District of Texas

                           BOB D. ODOM
                           ASSISTANT DISTRICT ATTORNEY
                           P.O. Box 540
                           Belton, Tx 76513
                           (254) 933-5215
                           FAX (254) 933-5704
                           DistrictAttorney@bellcounty.texas.gov
                           SBA No. 15200000

Oral Argument Waived

                                 1
                   TABLE OF CONTENTS

ITEM                                                   PAGE

Index of Authorities……………………………………………………………….            3

Statement Regarding Oral Argument………………………………………         4

Statement of the Case…………………………………………………………….            4

Statement of Facts…………………………………………………………………              4

Summary of State’s Argument………………………………………………..          6

Argument and Authorities……………………………………………………..           7

       Issue on Appeal……………………………………………………………            7
                  WAS EVIDENCE SUFFICIENT TO PROVE
                  PRIOR CONVICTION WAS FINAL AND, IF
                  SO, WHAT IS THE PROPER REMEDY?

           Applicable Law……………………………………………………            7

           Application and Analysis……………………………………..      8

                Harm…………………………………………………………               9

                Remedy……………………………………………………..            12

Prayer…………………………………………………………………………………..                 13

Certificate of Compliance with Rule 9…………………………………….    14

Certificate of Service……………………………………………………………..         14




                              2
                   INDEX OF AUTHORITIES

CASES                                                          PAGE

Bell v. State, 994 S.W.2d 173 (Tx. Cr. App. 1999)……………………..     12

Culbert v. State, 415 S.W.2d 646 (Tx. Cr. App. 1966)………………..    11

Fletcher v. State, 214 S.W.3d 5 (Tx. Cr. App. 2007)…………………..     8

Jones v. State, 711 S.W.2d 654 (Tx. Cr. App. 1986)…………………...     8

Jordan v. State, 256 S.W.3d 286 (Tx. Cr. App. 2008)…………………     9-12

Monge v. California, 524 U. S. 721 (1998)……………………………......      12

OTHER

Texas Penal Code

      12.32……………………………………………………………………………                       9-10

      12.33……………………………………………………………………………                        10

      12.42 (b)………………………………………………………………………                     8, 10

      12. 42 (d)………………………………………………………………………                    4, 10

      30.02 (c) (2)………………………………………………………………….                    4

Texas Rules of Appellate Procedure

      Rule 44.2 (b)…………………………………………………………………                    12




                                     3
STATEMENT REGARDING ORAL ARGUMENT
          The State does not request oral argument.

STATEMENT OF THE CASE

          The appellant, Thomas Richie McBride, was charged by

indictment with the second degree felony offense of burglary of a

habitation.1 The indictment also alleged two prior felony convictions in

proper order for the purpose of enhancement of the range of

punishment to 25 years to 99 years or life.2

          The appellant was found guilty by a jury (CR-82; RR9-143). The

same jury found the enhancement allegations in the indictment to be

true and assessed punishment at 99 years in the Texas Department of

Criminal Justice Institutional Division (CR-87, 119; RR10-55, 58).

          The appellant gave timely notice of appeal (CR-100) and the trial

court certified his right to do so (CR-123).

STATEMENT OF FACTS

          The only issue raised by the appellant on appeal is whether or not

there was sufficient evidence to support the finding of the jury that the

allegations in the second paragraph of the indictment that the appellant

1
    Section 30.02 (c)(2), Texas Penal Code
2
    Section 12.42 (d), Texas Penal Code


                                             4
had been finally convicted of the prior conviction alleged. Therefore,

the State will not recite the underlying facts of the offense.

      The second paragraph of the indictment charged that the

appellant had been previously convicted on the 12th day of June, 1984 in

the 27th District Court of Bell County, Texas of the offense of burglary of

a habitation in Cause Number 32,729 (CR-5).

      The third paragraph also alleged that the appellant had been

previously convicted on the 5th day of December, 1979 of the offense of

burglary of a building in the 27th District Court in Cause Number 28,276.

      The appellant pled “not true” to both of the enhancement

paragraphs of the indictment (RR10-11, 12).

      During the punishment phase of the trial the State offered

penitentiary packets in each case. Fingerprint expert Karl Ortiz had

testified that he had examined rolled fingerprints that he had taken

from the appellant with those contained in the pen packets and they

were all the fingerprints of the same person (RR10-18). Both exhibits,

State’s Exhibits 40 and 41, were admitted before the jury without

objection from the appellant (RR10-18).

      State’s Exhibit 40 consists of the penitentiary packet from Cause

No. 28,276 as alleged in the third paragraph of the indictment. The


                                      5
appellant does not contest the jury’s finding of true with respect to the

allegations in that paragraph nor the sufficiency of the evidence to

establish it (Appellant’s Brief at page 10).

      State’s Exhibit 41 is the pen packet for Cause No. 32,729 as alleged

for enhancement purposes in the second page of the indictment. That

packet consists of photographs and fingerprints of the appellant as well

as a judgment and sentence in the case. At the bottom of the sentence

there appears this phrase: “DEFENDANT GAVE NOTICE OF APPEAL IN

OPEN COURT ON JUNE 12, 1984”. No other documentation was offered

by the State concerning this prior conviction and it is the issue as to the

sufficiency of the evidence to prove the allegations in that paragraph of

the indictment that is the basis of this appeal.

SUMMARY OF STATE’S ARGUMENT

      Because the judgment in the conviction alleged in paragraph two

of the indictment recited that notice of appeal was given it was

incumbent upon the State to offer evidence showing that it was a final

conviction. The State did not do so. Because the maximum punishment

was the same because the State proved, and the appellant does not

contest, the prior conviction alleged in the third paragraph of the



                                      6
indictment, there was sufficient evidence to prove that the appellant

was a repeat offender, as opposed to a habitual criminal. The maximum

sentence in this second degree was the same and the jury assessed

punishment at the maximum of 99 years. The proper remedy is to

reform the judgment to show punishment as a repeat offender. In the

alternative, the remedy is to remand the case to the trial court for a new

trial on the issue of punishment only.

ARGUMENT AND AUTHORITIES

Issue on Appeal

      Was the evidence sufficient to prove that the appellant was finally

convicted in Cause No. 32,729 as alleged in the third paragraph of the

indictment and, if not, what is the proper remedy?

Applicable Law

      It is axiomatic that when a prior conviction is alleged for

enhancement purposes the State must prove that the conviction is final.

Where there is a plea of “not true” and where there is a notation on the

judgment in the alleged prior conviction that the case was appealed it

becomes the burden of the State to prove that the case was affirmed and

the conviction was final by some evidence, such as a mandate from the



                                    7
appellate court. Fletcher v. State, 214 S.W.3d 5 (Tx. Cr. App. 2007). The

appellant is not required to raise the issue at trial in order to preserve it

for appeal. Jones v. State, 711 S.W.2d 634 (Tx. Cr. App. 1986).

Application and Analysis

       The judgment in Cause No. 32, 729, alleged for the purposes of

enhancement for punishment as a habitual criminal in the second

paragraph of the indictment, recites that notice of appeal was given in

open court on the same day that the judgment was entered. There was

no proof offered by the State that the case had been affirmed on appeal

or a mandate issued. Thus the evidence was insufficient to support the

finding of the jury that the allegations in the second paragraph of the

indictment were true.

       There was no such problem with the allegation of a previous prior

conviction in the third paragraph of the indictment with respect to

Cause No. 28,276 and the appellant does not contest the sufficiency of

the evidence to support the jury’s finding of true as to that paragraph

and, therefore, that he is a repeat offender as set out in Section 12.42 (b)

of the Penal Code3.


3
  Section 12.42 (b) provides that if it is shown on the trial of a second degree felony that
the defendant has been previously finally convicted of a felony offense, other than a state


                                             8
Harm

       An error in the proof of a prior conviction alleged for

enhancement purposes is generally not subject to a harm analysis.

Jordan v. State, 256 S.W.3d 286, 293 (Tx. Cr. App. 2008). The Jordan

court observed that where a prior conviction is alleged for enhancement

purposes and the defendant had pled “not true” then the jury charged

with assessing punishment must make two types of deliberations. First

it must engage “in a deductive discrete fact-finding process to determine

whether the State has proved the enhancement allegation.”                             Then,

second, considering all of the evidence admitted at the guilt-innocence

and punishment phases of the trial, the fact finder “engages in a

normative process that is uninhibited by any required specific fact

determination to decide what particular punishment to assess within

the range provided by law.” Jordan at 291-92. Thus, the court said that

there is no way to quantify what impact the unsupported finding of true

had on the jury’s normative sentencing function is assessing

punishment and that attempting to do so would require pure

speculation. Jordan at 293.


jail felony, then the defendant is to be punished as for a first degree felony. A first degree
felony is punishable by life or a term of years not more than 99 or less than 5 years.
Section 12.32, Texas Penal Code.


                                              9
       In reaching that conclusion the Court of Criminal Appeals

observed that in that case:

              “Notably, the first enhancement paragraph, by itself,
               had no effect on the term of imprisonment available for
               the primary offense. But with the jury’s unsupported
               finding of true to the second paragraph, the lower end of
               the punishment range was increased from fifteen years
               to twenty-five years”.
               Jordan at 293.

       For that reason this case is arguably distinguishable from Jordan.

In this case the primary offense of burglary of a habitation is a second

degree felony with a punishment range of not more than twenty years

and not less than two years.4 Proof of a single prior felony conviction as

alleged results in the imposition of punishment in the range for a first

degree felony, life or not more than ninety-nine and not less than five

years. 5 Proof of two prior felony convictions in proper sequence results

in an enhanced range of punishment to a term of life or not less than

twenty-five and not more than ninety-nine years. 6

       The appellant does not contest the sufficiency of the evidence to

prove his guilt of the primary offense nor to prove that the allegation in

paragraph three of the indictment is true. The error here was only in


4
  Section 12.33, Texas Penal Code
5
  Sections 12.42 (b) and 12.32, Texas Penal Code
6
  Section 12.42 (d), Texas Penal Code


                                          10
the failure to prove the conviction, alleged in the second paragraph to

make the offense punishable under the habitual criminal provisions

with a range of life or twenty-five to ninety-nine years.     Thus the

evidence is sufficient to support the finding of the jury that the

allegations in the third paragraph are true. Consequently, even setting

aside the unsupported finding as to the third paragraph, the range of

punishment would be life or five to ninety-nine years. In Culbert v.

State, 415 S.W.2d 646 (Tx. Cr. App. 1966), where two convictions were

alleged for enhancement purposes and the evidence was insufficient to

prove one of the allegations, the judgment was modified to show the

punishment for the primary offense as enhanced by the single prior

conviction.

      Unlike in Jordan the single prior conviction when proven did have

an effect upon the range of punishment available to the jury. It raised

the range from two to twenty years up to five years to ninety-nine years

or life. That is the same maximum punishment that would have been

applied had both prior convictions be properly proven, although the

minimum available was certainly changed.

      Given that the jury assessed punishment at the maximum number

of ninety-nine years as a result of its normative process of determining


                                   11
the punishment to be assessed based upon all the evidence in the case,

should the circumstances allow a harm determination, it could well be

argued that whether the jury believed the minimum to be five years or

twenty-five years clearly had no effect upon the deliberations. The

punishment assessed was within the range provided for the primary

offense with the proof of one prior felony conviction. See Rule 44.2 (b),

Texas Rules of Appellate Procedure. (Non-constitutional error that does

not affect substantial rights must be disregarded).

Remedy

      If harm is not an issue, then the appropriate remedy is to remand

the case for a new hearing on punishment only. In that case the State

would not be prohibited from attempting again to prove the prior

conviction subject to the insufficiency defect in this trial. Jordan at 293;

Bell v. State, 994 S.W.2d 173, 175 (Tx. Cr. App. 1999), relying upon

Monge v. California, 524 U.S. 721 (1998) holding that it would not

violate double jeopardy principles to allow the State a second chance to

present its proof of a prior conviction.




                                     12
PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be reformed and modified to show conviction of the

primary offense as a repeat offender rather than as a habitual criminal

and be in all other things affirmed, or in the alternative that the case be

remanded to the trial court for a new punishment hearing.



                               Respectfully Submitted,

                               HENRY GARZA
                               DISTRICT ATTORNEY

                               BY: /s/   Bob D. Odom
                               BOB D. ODOM
                               Assistant District Attorney
                               P.O. Box 540
                               Belton, Tx 76513
                               (254) 933-5215
                               FAX (254) 933-5704
                               DistrictAttorney@bellcounty.texas.gov
                               SBA No. 15200000




                                    13
CERTIFICATE OF COMPLIANCE WITH RULE

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 1821 words.



                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney



CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon Justin Bradford Smith, Counsel for Appellant, by electronic

transfer via Email, addressed to him at justin@templelawoffice.com on

this 13th day of December, 2017.



                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney




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