                                                                                        PD-0890-15
                             PD-0890-15                               COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                      Transmitted 7/16/2015 5:06:40 PM
                                                                        Accepted 7/17/2015 4:05:00 PM
                                 PD 15-________                                         ABEL ACOSTA
                                                                                                CLERK
                   In the Court of Criminal Appeals of Texas
                                    At Austin
                               ♦
                                No. 01-14-00387-CR

                               In the Court of Appeals
                            For the First District of Texas
                                     At Houston
                               ♦
                                    No. 1391077
                             In the 179th District Court
                              Of Harris County, Texas
                               ♦
                                   Michael Diaz
                                     Appellant
July 17, 2015                            v.
                                 The State of Texas
                                      Appellee
                               ♦
                State’s Petition for Discretionary Review
                               ♦



     Devon Anderson                                   Clinton A. Morgan
     District Attorney                                Assistant District Attorney
     Harris County, Texas                             Harris County, Texas
                                                      State Bar No. 24071454
     Chelsea Peterson                                 morgan_clinton@dao.hctx.net
     Beth Exley
                                                      1201 Franklin St., Suite 600
     Assistant District Attorneys
                                                      Houston, Texas 77002
     Harris County, Texas
                                                      Telephone: 713.755.5826




                             Oral Argument Requested
                Statement Regarding Oral Argument

      The State is asking for a ruling that limits the reach of a recent,

valid precedent of this Court in order to avoid an absurd result in this

case. Oral argument would allow the Court to better understand how the

parties view the advantages and drawbacks of this limitation. Oral

argument would serve the important function of allowing the parties to

address any of the Court’s concerns, either with the State’s proposed

limitation or with the present rule, that may get overlooked in the

briefing.




                                    i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Chelsea Peterson & Beth Exley
            — Assistant District Attorneys at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal
               1201 Franklin St.
               Suite 600
               Houston, Texas 77002

Appellant:

      Michael Diaz

Counsel for the Appellant:

      David Garza
           — Counsel at trial
              102 S. Lockwood Dr.
              Houston, Texas 77011-3124

      Terrence A. Gaiser
           — Counsel at trial
              2900 Smith Street, #220
              Houston, Texas 77006

Trial Judge:

      Pam Derbyshire
            Presiding judge




                                      ii
                                                 Table of Contents

Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Statement of Procedural History ....................................................... 1
Question Presented
   When the State fails to prove the habitual-offender enhancement
   allegations in the indictment, but the evidence conclusively proves
   other convictions that would render the appellant eligible for
   habitual-offender sentencing, is automatic reversal appropriate
   despite the fact that the appellant will receive the same sentence on
   remand?............................................................................................................................ 2
       I.      Factual and Legal Background .................................................................. 3
            A. The State pled the wrong prior convictions in the
            enhancement paragraphs. ............................................................................... 3
            B. The Court of Appeals reversed, based on apparently binding
            precedent from this Court that the error in this case was not
            subject to any sort of harm analysis. ........................................................... 5
       II. Why This is an Absurd Result .................................................................... 6
            A. The appellant will not benefit from this reversal because on
            remand the State will file a motion to enhance his punishment
            with the correct prior convictions. .............................................................. 6
            B. Had this error been discovered in the trial court it could have
            been easily fixed................................................................................................... 7
            C. Had the appellant brought up this error in a habeas
            proceeding, this Court would have rejected his claim because he
            was “only fictionally harmed.” ....................................................................... 9




                                                                 iii
      III. Argument: The error in this case was harmless, and a reversal
      is the sort of absurd result that should be avoided through
      application of a harm analysis......................................................................... 10
         A. The harm analysis that should apply to this case is
         categorically different from the harm analysis this Court rejected
         in Jordan, and, despite its overly broad language, Jordan should
         not apply here. ................................................................................................... 10
         B. Unlike in Jordan, a remand in this case can serve no
         legitimate function........................................................................................... 12
Conclusion .......................................................................................... 17
Certificate of Compliance and Service ........................................... 18
Appendix
   Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—
   Houston [1st Dist.], June 18, 2015) (mem. op. not designated for
   publication)




                                                            iv
                                          Index of Authorities



Cases
Cooper v. State
  788 S.W.2d 612 (Tex. App.—
  Houston [1st Dist.] 1990, pet. ref’d) ............................................................ 8, 13
Diaz v. State
  No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—
  Houston [1st Dist.], June 18, 2015)
  (mem. op. not designated for publication) ................................................... 1, 6
Ex Parte Parrott
  396 S.W.3d 531 (Tex. Crim. App. 2013) ...................................................... 9, 10
Freda v. State
  704 S.W.2d 41 (Tex. Crim. App. 1986) ................................................................. 7
Johnson v. State
  995 S.W.2d 926 (Tex. App.—
  Waco 1999, no pet.) ................................................................................................. 14
Jordan v. State
  256 S.W.3d 26 (Tex. Crim. App. 2008) ..................................................... passim
Pelache v. State
  324 S.W.3d 568 (Tex. Crim. App. 2010) ...................................................... 8, 13
Plessinger v. State
  536 S.W.2d 380 (Tex. Crim. App. 1976) ...................................................... 8, 13
Roberson v. State
  420 S.W.3d 832 (Tex. Crim. App. 2013) .............................................................. 7
Rooks v. State
  576 S.W.2d 615 (Tex. Crim. App. 1978) (panel op.)....................................... 8
Saldana v. State
  826 S.W.2d 948 (Tex. Crim. App. 1992) ........................................................... 14
Tomlin v. State
  722 S.W.2d 702 (Tex. Crim. App. 1987) .............................................................. 3




                                                            v
Statutes
TEX. PENAL CODE § 12.42................................................................................................... 3


Other Authorities
George E. Dix & John M. Schmolesky
  43A Tex. Prac., Criminal Practice and Procedure § 46:107 (3d ed.) .... 13




                                                            vi
                          Statement of the Case

      The appellant was indicted for burglary of a habitation. (CR 9).

The indictment alleged two prior felony convictions, one for an offense

that was committed after the other conviction became final. (CR 9). The

appellant waived his right to a jury trial and pled not guilty to the trial

court. (2 RR 6-7). The trial court found him guilty as charged. (2 RR 101;

CR 30). The appellant pled true to both enhancement allegations. (2 RR

102; CR 30). The trial court found both allegations true and assessed

punishment at thirty years’ confinement. (2 RR 107; CR 30). The trial

court certified the appellant’s right of appeal, and the appellant filed a

notice of appeal. (CR 4, 8).


                    Statement of Procedural History

      On June 18, 2015, a panel of the First Court of Appeals issued a

memorandum opinion affirming the appellant’s conviction but reversing

on punishment because the evidence showed that the enhancement

allegations did not occur in the order alleged. Diaz v. State, No. 01-14-

00387-CR, 2015 WL 3799463 (Tex. App.—Houston [1st Dist.], June 18,

2015) (mem. op. not designated for publication). No motions for

rehearing were filed.


                                    1
                          Question Presented


When the State fails to prove the habitual-offender enhancement
allegations in the indictment, but the evidence conclusively proves
other convictions that would render the appellant eligible for
habitual-offender sentencing, is automatic reversal appropriate
despite the fact that the appellant will receive the same sentence
on remand?

      The Court of Appeals reversed the appellant’s sentence because

the State failed to prove the enhancement allegations in the indictment.

However, if the case goes back to the trial court the State will be able to

file a motion to enhance the appellant’s sentence with other felony

convictions, convictions to which the appellant has already stipulated

and that were admitted into evidence. The appellant will then be subject

to the exact same punishment range as he was the first time. Thus the

appellant has gained a reversal from an error that did not harm him, and

a remand from which he cannot benefit.

      While the State believes this reversal is a wasteful absurdity, the

Court of Appeals’s opinion is a seemingly correct application of some

very broad language from Jordan v. State, 256 S.W.3d 286 (Tex. Crim.

App. 2008). Without questioning the fundamental correctness of Jordan,

the State asks this Court to distinguish Jordan to avoid the silly result in

this case and to prevent gamesmanship in similar cases.

                                     2
     I.     Factual and Legal Background

               A. The State pled the wrong prior convictions in the
                  enhancement paragraphs.

          The indictment in this case alleged that in 2008 the appellant was

convicted of felony possession of a controlled substance, and that after

that conviction became final he committed and was convicted of felony

burglary of a habitation in 2009. (CR 9). If true, these allegations would

render the appellant subject to punishment as a true habitual offender

with a punishment range of confinement for 25 to 99 years, or life. See

TEX. PENAL CODE § 12.42(d).1

       The appellant pleaded true to these allegations, and he entered a

stipulation to five prior felony convictions (two of which were state-jail

felonies, and thus not relevant to enhancing his punishment in this

case). (State’s Ex. 22). However, the judgments for the two cases alleged

in the enhancement paragraphs show that the prior burglary conviction

was for an offense committed prior to the PCS conviction becoming final

in 2008.


1 To prove a defendant’s status as a true habitual, the evidence must show two prior
felony convictions that occurred in a particular chronological order: “(1) the first
conviction becomes final; (2) the offense leading to a later conviction is committed;
(3) the later conviction becomes final; (4) the offense for which defendant presently
stands accused is committed.” Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App.
1987).
                                         3
                    Prior Convictions Alleged in Indictment
         Offense     Cause Number    Date of Offense   Date of Conviction

           PCS          1154681        2/21/2008          3/26/2008

        Burglary        1174687           7/8/2007        6/11/2009




(State’s Ex. 24).

      Using those convictions, sentencing the appellant as a true

habitual would be inappropriate. However, if one looks at all the

convictions to which the appellant stipulated (and for which the State

admitted certified judgments), it is apparent that the State could have

pled prior convictions that would have properly established the

appellant as a true habitual.

   Second and Third Degree Felonies to Which the Appellant Stipulated
         Offense     Cause Number    Date of Offense   Date of Conviction

           PCS          1259219        4/14/2010          4/19/2010

           PCS          1154681        2/21/2008          3/26/2008

        Burglary        1174687           7/8/2007        6/11/2009




(State’s Exs. 22, 23, 24). Had the indictment alleged the 2010 conviction

in conjunction with either of the other two, it would have properly

established the appellant as a true habitual.
                                      4
            B. The Court of Appeals reversed, based on apparently
               binding precedent from this Court that the error in
               this case was not subject to any sort of harm analysis.

      In the Court of Appeals, the appellant’s only complaint consisted

of a one-page argument pointing out that the prior convictions alleged

in the indictment did not occur in sequential order. (See Appellant’s

Brief at 9). Citing to Jordan v. State, 256 S.W.3d 26 (Tex. Crim. App.

2008), the appellant asked for a new punishment hearing.

      Jordan was another case involving sequence issues with habitual-

offender enhancements. In that case, the State’s evidence did not show

the date on which the second offense was committed, thus the evidence

was insufficient to prove that it was committed after the first conviction

became final. Jordan, 256 S.W.3d at 289.

      On appeal, the State asked the Court of Appeals to apply a harm

analysis because Jordan’s life sentence was within the appropriate

statutory range to which Jordan would have been subject without the

finding that he was a true habitual. Id. at 290. This Court held that the

State’s failure to prove the sequence of habitual-offender enhancement

allegations was error not subject to a harm analysis. Id. at 292. To

emphasize its point that automatic reversal was required, this Court

noted that even if such a finding were subject to a harm analysis, “the

                                    5
State’s failure to prove the chronological sequence of punishment

enhancement allegations as required under [Penal Code] Section

12.42(d) … will never be considered harmless.” Ibid.

      In this case, the State conceded that the Court of Appeals was

bound by the strong, categorical language in Jordan and the Court of

Appeals agreed. Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 at

*3 (Tex. App.—Houston [1st Dist.] June 18, 2015); see also Jordan, 256

S.W.3d at 287 (“We hold that the court of appeals properly rejected the

State’s contention that a harm analysis is appropriate.”).


    II.   Why This is an Absurd Result

      The State does not challenge the fundamental correctness of

Jordan. However, as applied to this case, Jordan has created a truly

absurd result.


            A. The appellant will not benefit from this reversal
               because on remand the State will file a motion to
               enhance his punishment with the correct prior
               convictions.

      It is typically the case that winning on appeal will help a criminal

defendant in a fairly obvious manner. That is not the case here. Indeed, it

is hard to imagine how the reversal in this case will help the appellant

unless he enjoys repetitive court proceedings.
                                    6
      The Double Jeopardy prohibition does not bar the re-use of prior

convictions in a second punishment hearing. See Jordan, 256 S.W.3d 291.

Therefore, if this case is remanded to the trial court the State will be able

to enhance the appellant’s sentence using the 2010 conviction in

conjunction with one of the appellant’s other felony convictions, and

then the evidence will adequately support his punishment as a true

habitual. Unless the appellant has misbehaved while in prison (in which

case his punishment can be increased), he will surely receive the same

sentence.


            B. Had this error been discovered in the trial court it
               could have been easily fixed.

      Applying Jordan’s rule of automatic reversal to this case is

incongruous with this court’s prior holdings that, so long as the

defendant has notice of the State’s intent to enhance his sentence, the

details of those prior convictions that make it into the indictment are

not terribly important. See Roberson v. State, 420 S.W.3d 832, 840 (Tex.

Crim. App. 2013) (evidence sufficient to show habitual status despite

fact that enhancement paragraphs alleged in wrong order); see also

Freda v. State, 704 S.W.2d 41, 43 (Tex. Crim. App. 1986) (incorrect name

for prior offense used in enhancement allegation immaterial); Rooks v.

                                     7
State, 576 S.W.2d 615, 616-17 (Tex. Crim. App. 1978) (panel op.)

(variance regarding court of conviction was not material); Plessinger v.

State, 536 S.W.2d 380, 381-82 (Tex. Crim. App. 1976) (difference

between pleading that prior conviction was named “State of Texas v.

[defendant]” and proof that prior conviction was named “State of

Arizona v. [defendant]” immaterial).

      In this case, the State gave pre-trial notice of its intent to introduce

evidence of the 2010 conviction. (CR 23). Therefore, had this error been

pointed out in the trial court, the State could have simply filed a motion

to enhance the appellant’s sentence using the 2010 conviction, even

after trial started and even if the appellant objected. See Pelache v. State,

324 S.W.3d 568, 577 (Tex. Crim. App. 2010). The Court of Appeals has

still-valid precedent holding that it is, at worst, harmless error to allow

the State to correct an error in an enhancement paragraph in the middle

of trial over the defendant’s objection. See Cooper v. State, 788 S.W.2d

612, 616 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).




                                     8
            C. Had the appellant brought up this error in a habeas
               proceeding, this Court would have rejected his claim
               because he was “only fictionally harmed.”

      In Ex parte Parrott, this Court dealt with a case that was factually

similar to this case, but which came up in the context of an 11.07 habeas

writ. Parrott pleaded guilty to a third-degree felony, with the

punishment enhanced by a prior felony conviction. Ex Parte Parrott, 396

S.W.3d 531, 533 (Tex. Crim. App. 2013). After his conviction became

final, Parrott filed an 11.07 petition noting that the conviction used to

enhance his punishment was actually a state-jail felony, thus it could not

be used to enhance punishment. Ibid.

      The record in Parrott, like the record in this case, showed

additional felony convictions that could have been used in lieu of the

inappropriate enhancement. Id. at 533-34. In Parrott, this Court

recognized that if relief were granted, at a new punishment hearing the

State would be able to use those other convictions to enhance Parrott’s

sentence to the exact same degree as it had been enhanced the first

time, thus “relief would serve only to provide [Parrot] an additional

opportunity to contest prior convictions that the trial court … has




                                    9
already determined to be valid.” 2 Id. at 538. This Court denied relief,

deeming habeas relief inappropriate for an applicant who had been

“only fictionally harmed.” Ibid.


    III.    Argument: The error in this case was harmless, and a
            reversal is the sort of absurd result that should be avoided
            through application of a harm analysis.

       The State believes that the evidence shows, beyond any doubt,

that the error in this case was harmless, and that applying the Jordan

rule of automatic reversal creates an absurd result. Upon close analysis,

it is clear that this Court’s concerns in Jordan are not applicable to this

case. Also unlike Jordan, a remand in this case can serve no legitimate

function.


              A. The harm analysis that should apply to this case is
                 categorically different from the harm analysis this
                 Court rejected in Jordan, and, despite its overly broad
                 language, Jordan should not apply here.

       In Jordan, this Court broke down the sentencing process into two

parts. Jordan, 256 S.W.3d at 293. First, there is the factfinder’s

determination of historical fact, namely whether the enhancement

2In Parrott’s habeas proceedings, the trial court had made a finding that the prior
convictions were valid. There is no such finding from the trial court in this case;
however, the appellant stipulated to the relevant convictions, thus he would be
estopped from contesting them on remand. If anything, then, a remand in this case
would be marginally more pointless than in Parrott.
                                       10
allegations are true. That determination sets the punishment range. The

factfinder then makes a normative determination of what punishment to

assess from within that range.

      The error in Jordan was that there was insufficient evidence to

support the jury’s findings of historical fact, and this led them to select

an incorrect punishment range from which to make the normative

decision. The State’s argument on appeal was that the error was

harmless because the normative decision that the jury made would have

been allowable had the jury been assessing punishment based on the

correct range. Essentially, the State was using the jury’s determination

from the second part of the sentencing process to show that the error in

the first part of the sentencing process was harmless. This Court

rejected that argument because, given the “absence of discrete, objective

facts decided by the jury” in the second part of the sentencing process, it

was impossible to calculate the effect of using the incorrect range, thus it

could not be said that the error in the first part of the sentencing

process was harmless. Ibid.

      In this case, the error relates to the first part of the sentencing

process, but so does the evidence that the error was harmless. The total

evidence at trial conclusively shows that the appellant is a true habitual,
                                    11
even if the State’s pleading did not. Thus, the trial court, in assessing

punishment in the second part of the sentencing process, used the

correct punishment range.

      The Jordan court’s problem with using the determination from the

second part of the process as a basis for holding harmless an error in the

first part of the process was based on the subjective, normative nature

of the second determination. That is not an issue in this case. The

objective facts show that the finding that the appellant was a true

habitual was correct. Despite Jordan’s broad language that would appear

to make its holding applicable to this case, the reasoning of Jordan does

not apply to this case at all.

      The State believes the Court of Appeals was bound by Jordan

because of its overly broad language. This Court, however, should use

this case to show that Jordan’s holding does not extend beyond the

bounds of its reasoning.


             B. Unlike in Jordan, a remand in this case can serve no
                legitimate function.

      The State’s ability, as recognized in the case law, to make mid-trial

corrections to errors in the pleading of enhancement allegations has

created a system where defendants have little, if any, incentive to point

                                   12
out pleading errors in the trial courts. See, e.g., Cooper, 788 S.W.2d at 616

(allowing State to amend enhancement paragraph over defense

objection was, at worst, harmless error); Pelache, 324 S.W.3d at 577

(allowing State to file mid-trial motion to enhance sentence). Indeed, the

low chance of reversal based on pleading errors in enhancement

paragraphs means that, so long as the generalities of the pleading are

correct the parties are likely to pay little attention to minor errors. See

George E. Dix & John M. Schmolesky, 43A Tex. Prac., Criminal Practice

and Procedure § 46:107 (3d ed.) (“No case after [Plessinger v. State, 536

S.W.2d 380 (Tex. Crim. App. 1976)] has determined that a variance

between the allegations of a prior conviction and its proof is fatal.”).

Given the present habits of trial attorneys on both sides, applying a rule

of automatic reversal in this case creates an opportunity for

gamesmanship.

      This case provides a good example of how the current state of

affairs works. The indictment gave the appellant notice that the State

was seeking to punish him as a true habitual, and the State’s notice of

intent to introduce extraneous offenses put him on notice that the State

would introduce evidence of enough second- and third-degree felonies

to prove that he was a true habitual. (See CR 22). Had defense counsel
                                     13
pointed out the State’s pleading error in the trial court, the State could

have immediately corrected it and the defense would have gained

nothing. In the absence of defense counsel complaining about the

pleadings in the indictment, the prosecutor probably presumed

everything was in order.

      Given the rule of automatic reversal, a wily defense attorney could

easily game the system and give his client two bites at the punishment

apple. Having noticed the error, the wily defense lawyer would proceed

to punishment as though nothing were wrong. If he were reasonably

satisfied with the punishment verdict, he would continue to keep quiet

on appeal. If he disliked the verdict, however, he would raise the matter,

obtain an automatic reversal, and opt for a different factfinder on

remand. See Johnson v. State, 995 S.W.2d 926, 929 (Tex. App.—Waco

1999, no pet.) (citing Saldana v. State, 826 S.W.2d 948 (Tex. Crim. App.

1992)) (defendant entitled to have jury assess punishment on remand

despite fact that trial court assessed punishment at original trial). Or,

had he opted for a jury the first time, he could opt for a jury a second

time and hope for a friendlier panel and a less compelling presentation

of the State’s punishment evidence.



                                   14
      The State will grant that such a defendant will still be facing at

least 25 years even after playing such a game, which might seem like a

very low level of winning. But if a defendant has been assessed a

punishment of 75 years or life by a trial court and then gets that

sentence reduced to 40 years on remand to a jury, he will have bumped

up his parole eligibility by ten years and given himself a chance to

discharge his sentence before his dotage. And he will have done so

based not on any unfairness in the original proceeding or any

incorrectness in the original sentence, but on what amounts to little

more than a typo.

      In Jordan, the State failed to prove that the defendant committed

one felony after the conviction in another felony become final. On the

appellate record, this Court could not determine with any confidence

whether on remand the State could prove that Jordan was a true

habitual. Jordan was a case where it was altogether possible that the

trial attorneys had overlooked an actual failing in the State’s evidence

and a remand would create a different, more lawful result, with the

possibility of Jordan receiving a sentence (as little as 15 years) that was

below the minimum he could have received in his first punishment

hearing. In this case, without the State introducing additional evidence,
                                    15
the appellant will be subject to the exact same range of punishment as

the first time, and the factfinder will be aware of the exact same prior

convictions as the first time. If the appellant receives a different

punishment on remand it will be due to luck or caprice, and his new

sentence will be not one whit more lawful.

      To be clear, the State is not alleging that the appellant or either of

his attorneys has played a game in this case. The appellant received a

sentence of 30 years. Considering that 25 is the minimum he will face on

remand, a prudent man would return to the judge for punishment in

order to receive the same sentence. This should serve to emphasize how

unfortunate it is to apply a rule of automatic reversal to the error in this

case: Either it creates an opportunity for a defendant to game the

system, or it creates an utterly pointless remand, but in no circumstance

does it create a more just result.




                                     16
                                Conclusion

     The State asks this Court to grant discretionary review and hold

that the Jordan rule of automatic reversal does not apply when the

evidence conclusively shows that the factfinder selected a sentence from

the correct punishment range.

                                             DEVON ANDERSON
                                             District Attorney
                                             Harris County, Texas


                                             /s/ C.A. Morgan
                                             CLINTON A. MORGAN
                                             Assistant District Attorney
                                             Harris County, Texas
                                             1201 Franklin, Suite 600
                                             Houston, Texas 77002
                                             713.755.5826
                                             Texas Bar No. 24071454




                                   17
                 Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 3,147 words.

      I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

      Terrence A. Gaiser
      tagaiser@aol.com

      Lisa McMinn
      State Prosecuting Attorney
      information@spa.texas.gov

                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                (713) 755-5826
                                                Texas Bar No. 24071454

Date: July 16, 2015




                                     18
                           Appendix


Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—
Houston [1st Dist.], June 18, 2015) (mem. op. not designated for
publication)
Opinion issued June 18, 2015




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-14-00387-CR
                            ———————————
                           MICHAEL DIAZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Case No. 1391077


                          MEMORANDUM OPINION

      Appellant Michael Diaz was charged with burglary of a habitation, with two

paragraphs alleging sequential conviction of two previous felonies enhancing the

punishment range to that of a habitual offender. Diaz waived his right to a trial by

jury and entered a plea of not guilty. After trial to the bench, the trial court found
Diaz guilty of burglary. Diaz pleaded true to the habitual offender enhancements,

and the trial court found the enhancements true and assessed his punishment at 30

years’ confinement. On appeal, Diaz argues that the evidence is insufficient to

prove that the second enhancement paragraph was true, and thus habitual offender

enhancement was improper and he is entitled to a new punishment hearing. We

agree. We affirm Diaz’s conviction, but reverse the portion of the judgment

assessing punishment and remand for a new punishment hearing.

                                   Background

      On June 10, 2013, complainants Delores and Rudy Castillo left their house

for work around 7:00 a.m. At 8:15 a.m., Delores received a phone call from their

home alarm security company informing her that the security system had detected

motion in their house. She called Rudy, who drove to the house and found that

police had already arrived. The back door of the house had been kicked in, and

various items had been taken, including a 55-inch television, jewelry, and a Bible.

      Lieutenant J. Pedraza of the Harris County Constable’s Office Precinct 6

was dispatched around noon to a pawn shop. A pawn shop employee had called

the police because two men who were trying to pawn some items were behaving

suspiciously. Pedraza located the men’s truck and found Anthony Sustaita asleep

in the passenger seat. Pedraza observed a keyboard, televisions, and a tall jewelry

box in the truck.



                                         2
      Pedraza asked Sustaita about the items, and Sustaita told Pedraza that he was

waiting for his boss who was inside the pawn shop. Pedraza went inside and found

Diaz, who gave Pedraza a fake name. Pedraza detained Diaz and, after several

Houston Police Department officers arrived, the officers searched the truck and

found, among other things, the Bible that had been taken from the Castillos’ house

that morning.

      Officer M. Hinojosa of the Houston Police Department took Diaz’s custodial

statement. Diaz was given his statutory warnings, waived his rights, and agreed to

talk to Hinojosa. Diaz confessed to burglarizing the Castillos’ house in a recorded

statement.

      After the trial court found Diaz guilty of the burglary, Diaz pleaded true to

the indictment’s two enhancement paragraphs:

      Before the commission of the offense alleged above, (hereafter styled
      the primary offense), on MARCH 26th, 2008, in Cause No. 1154681
      in the 232ND DISTRICT COURT of HARRIS County, Texas, the
      defendant was convicted of the felony of POSSESSION OF A
      CONTROLLED SUBSTANCE.

      Before the commission of the primary offense and after the conviction
      in Cause No. 1154681 was final, the Defendant committed the felony
      of BURGLARY OF A HABITATION and was finally convicted of
      that offense on JUNE 11, 2009, in Cause No. 1174687, in the 232ND
      DISTRICT COURT of HARRIS County, Texas.




                                        3
The trial court admitted Diaz’s signed stipulation of evidence and copies of the

judgments reflecting the two prior convictions. 1           The trial court found the

enhancements true and assessed punishment at 30 years’ confinement.

                                      Discussion

      In his sole issue on appeal, Diaz argues that he is entitled to a new

punishment hearing because the evidence does not support the trial court’s finding

of true regarding the second enhancement paragraph.

A.    Standard of Review

      A defendant may challenge the legal sufficiency of the evidence supporting

a finding that an enhancement paragraph is true, even if the appellant pleaded true

to the enhancement at the punishment hearing. See Jordan v. State, 256 S.W.3d

286, 292 (Tex. Crim. App. 2008) (finding that enhancement paragraph is true is

subject to legal sufficiency review); Mikel v. State, 167 S.W.3d 556, 560 (Tex.

App.—Houston [14th Dist.] 2005, no pet.) (appellant could challenge sufficiency

of evidence supporting finding that enhancement paragraph was true despite plea

of true to paragraph at punishment hearing). In reviewing such a finding, we view

the evidence in a light most favorable to the trial court’s ruling and determine

whether any rational trier of fact could make the finding beyond a reasonable



1
      Diaz also stipulated to the commission of a third felony and two state jail felonies,
      and judgments reflecting these convictions were also admitted.

                                            4
doubt. Mikel, 167 S.W.3d at 560 (citing McFarland v. State, 928 S.W.2d 482, 496

(Tex. Crim. App. 1996)).

B.    Applicable Law

      The primary offense in this case, burglary of a habitation, is a second degree

felony. See TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011) (burglary of a

habitation is a second degree felony). A second degree felony is punishable by a

prison term of 2 to 20 years. See id. § 12.33(a) (West 2011). A second degree

felony may be enhanced and punished as a first degree felony, with a prison term

of 5 to 99 years or life, if it is shown at trial that the defendant has been previously

finally convicted of a felony other than a state jail felony. See id. § 12.32(a) (West

2011) (first degree felony is punishable by imprisonment for 5 to 99 years or life),

§ 12.42(b) (West 2011) (second degree felony is punishable as first degree felony

if it is shown at trial that defendant has been previously finally convicted of a

felony other than a state jail felony). But if a non-state jail felony defendant has

previously been finally convicted of two non-state jail felonies, and the second

conviction is for an offense that was committed after the first conviction became

final, then the Texas Penal Code provides that the defendant may be punished as a

habitual offender. See id. § 12.42(d) (West 2011). In this case, the range of

punishment is enhanced to 25 to 99 years or life in prison. Id. To support habitual

offender enhancement, “‘[t]he [chronological] sequence of events must be proved



                                           5
as follows: (1) the first conviction becomes final; (2) the offense leading to a later

conviction is committed; (3) the later conviction becomes final; (4) the offense for

which defendant presently stands accused is committed.’” Jordan, 256 S.W.3d at

290–91 (quoting Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987)).

      Where “the record affirmatively reflects that [an offense] should not have

been used to enhance [the] punishment range to that of an habitual offender

because the offense did not occur in the sequence alleged by the indictment,” the

evidence is insufficient to support the habitual offender enhancement even if the

appellant pleaded true to the enhancement. Mikel, 167 S.W.3d at 559–60 (citing

Cruz v. State, No. 01–00–00463–CR, 2001 WL 1168273, at *1 (Tex. App.—

Houston [1st Dist.] Oct. 4, 2001, no pet.) (not designated for publication)).

      The State bears the burden of proving beyond a reasonable doubt that a

defendant’s second previous felony conviction was committed after the

defendant’s first previous felony conviction became final. Jordan, 256 S.W.3d at

291. 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. (citing and quoting Russell v. State, 790 S.W.2d 655, 656 (Tex. Crim.

App. 1990)); see also Mikel, 167 S.W.3d at 560 (holding harm analysis

inappropriate where evidence is insufficient to support findings of true to habitual

offender enhancements). This is so because “there is no way to quantify what



                                          6
impact the unsupported finding of true had on the [factfinder’s] normative

sentencing function,” and thus, “any attempt to calculate [the impact] would

necessarily entail pure speculation.” Jordan, 256 S.W.3d at 293. “Under these

circumstances, the State’s failure to meet its burden of proof, even if subjected to a

harm analysis, can never be deemed harmless.” Id.

C.    Analysis

      Diaz asserts, and the State concedes, that the record affirmatively reflects

that Diaz committed the offense alleged in the second enhancement paragraph

before the conviction for the offense alleged in the first enhancement paragraph

became final. Diaz was convicted of the first felony enhancement in Cause No.

1154681 on March 26, 2008, according to the judgment that was admitted into

evidence at the punishment hearing. The second enhancement paragraph alleged:

      Before the commission of the primary offense and after the conviction
      in Cause No. 1154681 was final, the Defendant committed the felony
      of BURGLARY OF A HABITATION and was finally convicted of
      that offense on JUNE 11, 2009, in Cause No. 1174687, in the 232ND
      DISTRICT COURT of HARRIS County, Texas.

But according to the judgment in Cause No. 1174687, which was also admitted

into evidence during the punishment hearing, the offense was actually committed

on July 8, 2007, over six months before Diaz was convicted of the offense in Cause

No. 1154681. Thus, the offense in Cause No. 1174687 was not committed “after

the conviction in Cause No. 1154681 was final.”           Accordingly, “the record



                                          7
affirmatively reflects that [the second felony offense alleged] should not have been

used to enhance [the] punishment range to that of an habitual offender because the

offense did not occur in the sequence alleged by the indictment.” Mikel, 167

S.W.3d at 559.

      Diaz and the State agree that the Court of Criminal Appeals has held that

“[a] harmless error analysis should not be undertaken” where, as here, the State

fails to meet its burden of showing that a defendant is eligible for habitual offender

enhancement. Jordan, 256 S.W.3d at 291 (citing and quoting Russell, 790 S.W.3d

at 656); see also Mikel, 167 S.W.3d at 560 (holding that harm analysis is

inappropriate where record shows that second enhancement paragraph should not

have been used to enhance punishment to habitual offender range). This is because

the State’s failure to meet its burden “can never be deemed harmless.” Jordan,

256 S.W.3d at 293. The State concedes that we are bound by this precedent, but

complains that this rule results in the waste of judicial resources where, as here,

there is evidence in the record that the appellant has committed other felonies that

could have properly been used to enhance the punishment range to that of a

habitual offender.

      Here, a judgment admitted into evidence during the punishment hearing

shows that Diaz committed a third non-state jail felony in 2010 and was convicted

of that charge that same year. Thus, the State could have properly enhanced the



                                          8
punishment range to that of a habitual offender if it had alleged the 2010 felony as

the second enhancement offense.

      The State argues that if Diaz had raised this issue at trial, it could have

moved to amend the enhancement paragraphs to allege the proper enhancements.

See Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010) (holding that

State’s motion to enhance punishment filed two days before punishment phase of

trial gave sufficient notice of enhancement and did not violate due process where

defendant did not request continuance, appear surprised by prior conviction

allegations, or argue that he was unprepared to defend against allegations);

Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (“[W]hen a

defendant has no defense to the enhancement allegation and has not suggested the

need for a continuance in order to prepare one, notice given at the beginning of the

punishment phase satisfies the federal constitution.”). The State also notes that

under Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013), if Diaz raised

this claim in a writ of habeas corpus instead of on direct appeal, the Court of

Criminal Appeals would deny relief because he would be unable to show harm

sufficient to warrant the grant of writ relief. See id. at 538 (holding that where

habeas record revealed valid alternative prior convictions that supported

applicant’s enhanced sentence, applicant failed to establish harm sufficient to

warrant grant of writ relief).



                                         9
      Nevertheless, whether the State could have properly alleged habitual

offender enhancement, it is undisputed that it did not actually do so. And whether

an error may warrant habeas corpus relief is a separate question from the issue we

must resolve here, which is whether we should undertake a harm analysis when

this issue is raised on direct appeal. The Court of Criminal Appeals has explicitly

held that we “should not” undertake a harm analysis in these circumstances and

that the State’s failure to meet its evidentiary burden with respect to habitual

offender enhancement “can never be deemed harmless.” Jordan, 256 S.W.3d at

291, 293. Thus, we hold that the evidence is insufficient to support the trial court’s

finding of true with respect to the second enhancement and the imposition of

punishment as a habitual offender. See Jordan, 256 S.W.3d at 291; see also Mikel,

167 S.W.3d at 560. Accordingly, we will reverse the portion of the judgment

assessing punishment and remand for a new punishment hearing. See Mikel, 167

S.W.3d at 560 (reversing portion of judgment assessing punishment and remanding

for new punishment hearing where record affirmatively reflected that offense in

second enhancement paragraph did not occur before offense in first enhancement

paragraph was final and therefore punishment as habitual offender was improper).

      We sustain Diaz’s sole issue.




                                         10
                                   Conclusion

      We affirm the trial court’s judgment as to guilt, reverse the judgment as to

punishment, and remand for a new punishment hearing.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

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




                                           11
