                                                                                                    ACCEPTED
                                                                                                12-15-00154-CR
                                                                                   TWELFTH COURT OF APPEALS
                                                                                                 TYLER, TEXAS
                                                                                           10/5/2015 3:18:42 PM
                                                                                                      Pam Estes
                                                                                                         CLERK




                                                                        RECEIVED IN
                                                                  12th COURT OF APPEALS
                                                                       TYLER, TEXAS
                                                                  10/5/2015 3:18:42 PM
SMITH COUNTY COURTHOUSE
100 N. BROADWAY 4th Floor
                                   D. Matt Bingham                       PAM ESTES
                                                                      TELEPHONE:
                                                                      TELECOPIER:
                                                                                    (903) 590-1720
                                                                           Clerk (903) 590-1719
TYLER, TEXAS 75702                   Criminal District Attorney       Michael J. West, Appellate Chief

 April A. Sikes, First Assistant
                                          Smith County              Aaron S. Rediker, Appellate Prosecutor

                                                                       Jennifer Barfield, Office Manager




                                          5 October 2015
                                                                                 10/5/2015


            Ms. Cathy S. Lusk, Clerk
            Twelfth Court of Appeals
            1517 West Front Street, Suite 354
            Tyler, Texas 75702

            Re:        12-15-00154-CR, Daniel Lee Knod v. The State of Texas;
                       State’s Supplemental Letter Brief


            To the Honorable Court of Appeals:

               In an amended brief filed on 22 September 2015, appellant
            alleges that his sentence for the offense of state jail felony theft was
            improperly enhanced with a prior theft conviction (Appellant’s Am.
            Br. 17-20). As appellant’s argument appears to be valid, the Court
            should overrule his first issue for the reasons argued in the State’s
            Brief and affirm the judgment as to the finding of guilt, but sustain
            his second issue and reverse only as to punishment.

               Appellant was charged by indictment with the state jail felony
            offense of theft, where the property stolen was valued at less than
            $1,500, and appellant had been convicted twice before of theft
            (Clerk’s R. at 2). See Tex. Penal Code Ann. § 31.03(e)(4)(D) (West

                                             Page 1 of 3
2014).    “Under this subsection, a defendant's history of theft
convictions, regardless of their number or degree, cannot elevate a
subsequent theft of property worth less than $ 1500 beyond the
status of a state jail felony.” Brown v. State, 14 S.W.3d 832, 832-833
(Tex. App.–Austin 2000, pet. ref’d). Nevertheless, the State filed a
Brooks notice prior to trial, alleging a third prior conviction for theft
and one conviction for retaliation (Clerk’s R. at 19-21). See Brooks v.
State, 957 S.W.2d 30, 32-34 (Tex. Crim. App. 1997). After a jury trial
on the issue of guilt/innocence, the trial court heard evidence on
punishment, made findings of “true” to the prior conviction
allegations contained in the State’s Brooks notice, and sentenced
appellant to confinement for eighteen years in the Texas
Department of Criminal Justice–Institutional Division without a fine,
within the punishment range for a second degree felony (VIII Rep.’s
R. at 120; Clerk’s R. at 72-73). See Tex. Penal Code Ann. §§ 12.33,
12.425(b) (West 2014). As appellant was convicted of state jail
felony theft under section 31.03(e)(4)(D), his punishment could not
be enhanced with another theft conviction, and the sentence of
confinement for eighteen years was void. Freeman v. State, 970
S.W.2d 55, 59-60 (Tex. App.–Tyler 1998, no pet.). See also Rawlings
v. State, 602 S.W.2d 268, 270 (Tex. Crim. App. 1980) (applying
similar prior statutes); Ex parte Firo, 815 S.W.2d 568, 569 (Tex. Crim.
App. 1991) (same).

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that the Court of Appeals affirm the judgment of the 7th District
Court of Smith County, Texas, as to the finding of guilt and remand
the cause for reassessment of punishment. See Tex. Code Crim.
Proc. Ann. art. 44.29(b) (West 2014); Freeman, 970 S.W.2d at 60.

                                    Respectfully submitted,


                                    /s/ Aaron S. Rediker
                                    Aaron S. Rediker
                                    Asst. Criminal District Attorney
                                    SBOT #: 24046692

                               Page 2 of 3
                                  100 North Broadway, 4th Floor
                                  Tyler, Texas 75702
                                  phone: (903) 590-1720
                                  fax: (903) 590-1719
                                  arediker@smith-county.com


                     CERTIFICATE OF COMPLIANCE

  Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the
undersigned attorney certifies that the word count for this
document is 426 words as calculated by Corel WordPerfect X6.


                                  /s/ Aaron S. Rediker
                                  Aaron S. Rediker


                       CERTIFICATE OF SERVICE

  The undersigned hereby certifies that on this 5th day of October
2015, the following have been completed:

     (1) The State’s Supplemental Letter Brief in the above-captioned
     causes was electronically filed.

     (2) A copy of the foregoing letter was sent by email to Austin R.
     Jackson, counsel for appellant, at JLawAppeals@gmail.com.


                                  /s/ Aaron S. Rediker
                                  Aaron S. Rediker




                             Page 3 of 3
