      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00271-CR



                               Thomas Ritchie McBride, Appellant

                                                  v.

                                   The State of Texas, Appellee


       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 76454, HONORABLE ALAN MAYFIELD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Thomas Ritchie McBride was indicted for burglary of a habitation, enhanced by two

prior felony convictions. See Tex. Penal Code §§ 12.42(d); 30.02(a)(3), (c)(2). A jury convicted

McBride of the offense as charged and assessed his punishment at ninety-nine years’ imprisonment.

The district court rendered judgment consistent with the jury’s verdict. On appeal, McBride

contends that the evidence is legally insufficient to show that one of his prior felony convictions was

final for purposes of enhancement. The State acknowledges the evidentiary insufficiency but

contends that McBride was not harmed by the error. We will reverse the portion of the district

court’s judgment imposing punishment and remand this cause to the district court for a new

punishment hearing.
                                         BACKGROUND1

               McBride’s indictment alleged that in 2015 he committed the felony offense of

burglary of a habitation involving the theft or attempted theft of jewelry, and that this offense was

enhanced by his two prior felony convictions: a 1984 conviction for burglary of a habitation and a

1979 conviction for burglary of a building. McBride pleaded not true to both enhancement

allegations. At the conclusion of the trial, the jury convicted McBride of the offense as charged.

               The case proceeded to a punishment hearing during which the State offered, and the

court admitted, penitentiary packets for the 1984 and 1979 burglary offenses. Among the documents

in the packet for the 1984 offense is a “Judgment,” setting forth the jury’s verdict of guilty and its

assessment of punishment, and “Sentence,” rendered in accordance with the jury’s verdict and signed

by the trial court.    At the bottom of the Sentence document is a typed notation stating,

“DEFENDANT GAVE NOTICE OF APPEAL IN OPEN COURT ON JUNE 12, 1984[.]” The State

did not offer evidence that mandate had issued making the 1984 conviction final, and McBride did

not complain to the trial court about the absence of such evidence. Ultimately, the jury found both

the 1984 and 1979 enhancement allegations true and assessed McBride’s punishment at ninety-nine

years’ imprisonment. The district court rendered judgment consistent with the jury’s verdict.

McBride filed a motion for new trial that was overruled by operation of law. This appeal followed.




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          McBride has not challenged the sufficiency of the evidence supporting his conviction, and
his appellate issue challenging the finality of his 1984 burglary conviction for purposes of enhancing
his punishment does not require a detailed recitation of the facts of the 2015 burglary offense for
which he was tried below. Both parties have discussed the facts only as relevant to the enhancement
issue. We similarly limit our discussion of the facts to those necessary for the resolution of
McBride’s appellate issue. See Tex. R. App. P. 47.1.

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                                           DISCUSSION

                McBride contends that the evidence is legally insufficient to show that his 1984

conviction for the felony offense of burglary was final for purposes of enhancing his punishment for

the 2015 burglary. He notes that the State’s own evidence during the punishment hearing shows that

he gave notice of appeal of his 1984 conviction, which required the State to show that mandate had

issued before it could rely on that conviction for enhancement purposes. Because the State did not

make that showing, McBride requests a new trial on punishment.

                When reviewing the sufficiency of the evidence supporting a finding that an

enhancement allegation is true, we consider all the evidence in the light most favorable to the jury’s

finding and determine whether a rational trier of fact could have found beyond a reasonable doubt

the existence of the prior conviction and the defendant’s link to that conviction. See Wood v. State,

486 S.W.3d 583, 584 (Tex. Crim. App. 2016); Flowers v. State, 220 S.W.3d 919, 925 (Tex. Crim.

App. 2007); see also Henry v. State, 509 S.W.3d 915, 919 (Tex. Crim. App. 2016) (citing Wood

and Flowers).

                Section 12.42(d) of the Texas Penal Code authorizes enhancement of punishment for

a defendant being tried for a felony who is shown to have had two prior sequential felony

convictions, where the second one is for an offense that occurred after the first one became final:


       If it is shown on the trial of a felony offense . . . that the defendant has previously
       been finally convicted of two felony offenses, and the second previous felony
       conviction is for an offense that occurred subsequent to the first previous conviction
       having become final, on conviction he shall be punished by imprisonment in the
       institutional division of the Texas Department of Criminal Justice for life, or for any
       term of not more than 99 years or less than 25 years.



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Tex. Penal Code § 12.42(d). The Texas Court of Criminal Appeals has explained that section

12.42(d) applies in the following chronological sequence of events: (1) the first conviction becomes

final; (2) the offense leading to a later conviction is committed; (3) the later conviction becomes

final; and (4) the offense for which defendant presently stands accused is committed. Jordan v.

State, 256 S.W.3d 286, 290–91 (Tex. Crim. App. 2008). The Court has also ruled that 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. Id.

at 291. If the State provides prima facie evidence of an enhancement conviction, and the record is

silent on the finality of that conviction, courts will presume that the conviction is final. Fletcher v.

State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007). But if that presumption of finality has been

overcome—as here, when the penitentiary packet in evidence states that the prior conviction has

been appealed—the State is required to proceed with proof of finality. Id. When the State fails to

make a prima facie showing of finality, the defendant has no burden to carry, nor is he obligated to

complain about or object to the lack of finality of the alleged prior conviction. Id.

                Here, the State does not dispute McBride’s complaint about the insufficiency of the

evidence to support the finality of his 1984 conviction for enhancement purposes; rather, the State

contends that McBride was not harmed by this error, that the error is generally not subject to a harm

analysis, and that the punishment recited in the judgment of conviction can be reformed. See

Cuthbert v. State, 415 S.W.2d 646, 648 (Tex. Crim. App. 1966) (concluding that evidence was

insufficient to show date defendant committed one of offenses alleged in indictment for enhancement

but affirming judgment of conviction after it was reformed). The State also points out that the



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evidentiary error as to the finality of McBride’s 1984 conviction affected only the minimum

available punishment range—raising it from five to twenty-five years’ imprisonment—not the

maximum punishment. See Tex. Penal Code §§ 12.32, 12.42(b), (d). Because the jury sentenced

McBride to ninety-nine years’ imprisonment—the same maximum punishment available under his

indictment even without the 1984 conviction—the State contends any error as to the minimum

available punishment had no effect on the jury’s deliberations. 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).

               Even if we were to conclude that this type of error is subject to a harm analysis, the

Court of Criminal Appeals has determined that the State’s failure to meet its burden of proof is not

harmless error. Id. at 293 (noting that “the jury’s unsupported finding of true to the second

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”); Fletcher, 214 S.W.3d at 8

(“harmless error analysis should not be undertaken when the State fails to meet its burden of proof”);

Russell v. State, 790 S.W.2d 655, 656 (Tex. Crim. App. 1990) (concluding “[s]ince the State failed

to meet its burden to prove the enhancing conviction’s finality, the proper remedy is a reversal and

remand” (citing Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986))).

               Because the State’s own evidence during the punishment hearing showed that

McBride’s 1984 conviction had been appealed, the State was required to proceed with proof of



                                                  5
finality. See Fletcher, 214 S.W.3d at 8; Jones, 711 S.W.2d at 636. Based on this record, we

conclude that no rational trier of fact could have found the existence of the prior conviction—that

is, a final prior conviction—alleged in the second enhancement paragraph beyond a reasonable

doubt. See Henry, 509 S.W.3d at 919; Wood, 486 S.W.3d at 584; Flowers, 220 S.W.3d at 925.

Accordingly, we sustain McBride’s appellate issue.


                                        CONCLUSION

               We affirm the portion of the district court’s judgment adjudicating McBride’s guilt,

reverse the portion of the judgment imposing punishment, and remand this cause for a new

punishment hearing.




                                             Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Kelly

Affirmed in Part; Reversed and Remanded in Part

Filed: February 13, 2019

Do Not Publish




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