                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-18-00273-CR

DANIEL BENITO GUAJARDO,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2017-1908-C2


                                      OPINION


      Daniel Guajardo appeals from a conviction for possession of a controlled

substance with the intent to deliver of four grams or more but less than 200 grams, a first

degree felony. TEX. HEALTH & SAFETY CODE ANN. §481.112(d). Based on two prior

convictions, Guajardo was sentenced to 99 years in prison as a habitual offender. TEX.

PENAL CODE ANN. §12.42(d). Guajardo complains that the evidence was insufficient for

the jury to have found that the first conviction was final prior to the commission of the

second offense and that the judgment erroneously states that he pled true to the
enhancement allegations. Because we find that the evidence as to the finality of the first

enhancement paragraph prior to the commission of the second offense is insufficient, we

reverse the judgment and remand for a new trial on punishment only.

PENAL CODE SECTION 12.42(d)

        In his first issue, Guajardo complains that the evidence was insufficient for the jury

to have found that his first conviction was final prior to the commission of the second

offense. Guajardo was put on probation in 2003 for a felony offense in California, which

was either revoked or ended on December 14, 2004. The indictment in the second offense

in California shows that the second offense was committed on or about December 30,

2003.

        In order to enhance punishment as a habitual offender, the first conviction must

be final at the time of the commission of the second offense. See TEX. PENAL CODE ANN.

§12.42(d). “[A] conviction is not final for enhancement purposes where the imposition of

sentence has been suspended and probation granted.” Ex Parte Pue, 552 S.W.3d 226, 230

(Tex. Crim. App. 2018) (internal citations omitted). In this proceeding, the evidence

showed that Guajardo was placed on probation for the first offense which was not

completed at the time that the second offense was committed. Because of this, we find

that the evidence was insufficient for Guajardo to have been sentenced as a habitual

offender pursuant to Section 12.42(d). 1



1There are no other convictions upon which the enhancements would be proper shown in the record.
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        The State concedes that the evidence did not show that the first conviction was

final prior to the commission of the second offense. However, the State argues that even

though Guajardo raised this issue as a challenge to the sufficiency of the evidence, we

should not consider it as argued but reform his issue as a complaint regarding the jury

charge. It is possible to frame this issue as a challenge to the jury charge that submits an

erroneous instruction regarding the range of punishment; however, this is not the

complaint made by Guajardo and we will not address this issue in a manner that the

appellant has not raised.

        The State had the burden to prove beyond a reasonable doubt that the second

offense was committed after the first conviction became final. Jordan v. State, 256 S.W.3d

286, 291 (Tex. Crim. App. 2008). Where the State fails to meet this burden, "[a] harmless

error analysis should not be undertaken" and the case should be remanded for a new

punishment hearing. Id.

        Although the State concedes that the sentence could not properly be enhanced

based on two prior sequential convictions pursuant to the evidence, the State contends

that we should not follow Jordan, but rather that we should conduct a harm analysis and

find that the error was harmless because the error only affected the minimum available

punishment range—raising it from fifteen to twenty-five years' imprisonment—and did

not impact the maximum punishment at all. See TEX. PENAL CODE ANN. §§ 12.42(b), (d).

Because the jury sentenced Guajardo to ninety-nine years' imprisonment—the same


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maximum punishment available under his indictment even without the first or second

conviction—the State contends any error as to the minimum available punishment had

no effect on the jury's deliberations and was harmless. Cf. Jordan, 256 S.W.3d at 295

(Keller, P.J., dissenting) (stating that harmlessness of evidentiary insufficiency as to

enhancement allegation seemed apparent because jury assessed ninety-nine years'

imprisonment, which was top of punishment range).

        The State contends that more recent opinions of the Court of Criminal Appeals

cast doubt on the propriety and necessity of a harm analysis. See Lake v. State, 532 S.W.3d

408, 411 (Tex. Crim. App. 2017) (plurality op.) (in the absence of structural error, appellate

courts should not automatically foreclose application of the harmless error test); Schmutz

v. State, 440 S.W.3d 29, (Tex. Crim. App. 2014) (same). We agree with the State that more

recent decisions of the Court of Criminal Appeals might be construed to cast doubt on

the holding in Jordan that a harm analysis is not necessary. However, the Court of

Criminal Appeals’ holding in Jordan is still binding precedent regarding this issue and as

an intermediate court, we are required to follow it. See State of Texas ex rel. Vance v.

Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971).

        However, even if we were to conclude that this type of error is subject to a harm

analysis, the Court of Criminal Appeals also determined in Jordan that the State's failure

to meet its burden of proof as to this issue “can never be deemed harmless.” Jordan, 256

S.W.3d at 293 (noting that "the jury's unsupported finding of true to the second


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enhancement allegation could very well have generated an inherent, institutional

pressure to impose a greater sentence" and that "the legislative purpose behind the

habitual felony-enhancement statute is to punish more harshly persons who repeatedly

commit crimes"). Because of this, reversal would also be required.

        Having found that the evidence is insufficient to support the finding that the

offense in the second enhancement occurred after the first conviction became final for

purposes of enhancing Guajardo’s punishment as a matter of law, we reverse the

punishment portion of the trial court's judgment and remand for a new punishment trial.

See TEX. CRIM. PROC. CODE art. 44.29(b); Jordan, 256 S.W.3d at 289-93. Guajardo’s first issue

is sustained. Because we have found that Guajardo is entitled to a new trial on

punishment, we do not reach his second issue regarding the error in the judgment, which

would ostensibly be corrected in the new judgment after the new trial on punishment.

CONCLUSION

        Having found that the evidence was insufficient regarding the two convictions

necessary for enhancement of Guajardo’s punishment as a habitual offender pursuant to

Section 12.42(d), we reverse the judgment and remand this proceeding for a new trial on

punishment only.




                                                  TOM GRAY
                                                  Chief Justice



Guajardo v. State                                                                      Page 5
Before Chief Justice Gray,
        Justice Davis, and
        Justice Neill
(Justice Neill concurring with an opinion)
Reversed and remanded
Opinion delivered and filed August 10, 2020
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