May 2013

I. Introduction

This is a continuation of a previous article on Texas enhancement law. Because enhancements are governed by many different areas of law, this article’s theme is to provide an organized framework to evaluate the issues raised by enhancement. The first part focused on an overview of enhancement law, pretrial issues, and admissibility of evidence proving enhancement allegations. This second part moves to evidentiary sufficiency, a discussion of collateral attacks targeted on enhancement issues, appellate remedies available for successful post-trial challenges.

Again, as mentioned in part one, it is important to remember there are two basic types of enhancements. The first type is a general enhancement that only increases the penalty range.¹ The second type is a prior conviction that actually becomes an element of the charged offense and creates a new statutorily defined crime with its own penalty range.² While both types of enhancements share many common characteristics, procedural difference do sometimes arise.

II. Sufficiency of the Evidence to Support Enhancement Findings

a. General Considerations Concerning Sufficiency

There is a distinct difference between admissibility and sufficiency of evidence to prove the issue upon which it is offered.³ Even though the evidence was properly admitted, a sufficiency review must still be made.⁴ For instance the “presumption of regularity,” discussed below, is often addressed by reported cases both in terms of admissibility and sufficiency; however, the regularity of the document does not always make it sufficient to prove the object fact at issue.⁵

Prior convictions offered for enhancement must meet the legal sufficiency standard of proof beyond a reasonable doubt.⁶ Direct appeal challenges to the legal sufficiency of enhancement evidence need not be preserved by objection.⁷ Nor are findings of insufficient evidence subject to a harm analysis.⁸

Pleas of true and testimonial admissions will normally waive any sufficiency challenge.⁹ Stipulations operate like a plea of true.¹⁰ As judicial admissions, these acknowledgments satisfy the State’s burden of proof.¹¹ The only exception is when the “the record affirmatively reflects” the prior conviction cannot be used for enhancement.¹² This means the defendant must demonstrate any deficiency or the defect must be apparent from the evidence offered to prove the prior conviction.¹³ When not conceded by the defendant, sufficiency challenges are reviewed in relation to the two basic elements necessary to prove enhancement: i.e., proof the conviction exists and showing the defendant’s identity as the person convicted.¹⁴ These elements will be discussed separately detailing certain aspects essential to prove the object facts.

b. Showing a Conviction Exists

1. Presumption of Regularity Accorded to Governmental Records

      Governmental records are the most typical manner of proving a prior conviction exists. These records are accorded a “presumption of regularity.”¹⁵ This presumption supports a finding the records are correct unless shown otherwise.¹⁶

To rely upon the initial presumption, the proponent must make a “prima facie” case that the documents are not only authenticated as actual records but also the recitals within those records appear regular in their terms.¹⁷ A prima facie case is “the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.”¹⁸ This presumption can be rebutted.¹⁹ Evidence necessary to rebut the presumption can come from the records themselves.²⁰ It can also come from a comparison with the original records.²¹ The opponent may also offer evidence to show the records do not properly prove the facts asserted.²² In that regard, it is advisable for any practitioner to examine the original records, as discrepancies do occur and certified copies of those records could rebut the presumption or prima facie case.

2. Component Proof of Prior Conviction

      Proof of a prior conviction requires both a judgment of conviction and a sentence.²³ The judgment demonstrates a factual finding of guilt for a particular offense.²⁴ Proof of a proper “sentence” is required because a sentence implements the judgment.²⁵ The judgment and sentence may be in the same instrument.²⁶

Essentially, documentary proof, whatever its form, must be the “functional equivalent” of a judgment and sentence.²⁷ For documents other than a formal judgment and sentence to serve as a functional equivalent, those instruments must actually prove the terms of the prior conviction. These other records must at least show the name of the offense, the sentence imposed, and proof the sentence was executed.²⁸ There is no requirement to present the underlying charging instrument unless it is necessary to prove the name of offense or the date it was committed.²⁹ The date of a prior offense typically becomes important when multiple prior convictions are alleged and the sequence must be proved.³⁰

c. Finality: A Sentence Must Be Imposed

Any prior conviction alleged for enhancement must be a final conviction.³¹ There is no statutory definition of “final conviction” in relation to enhancements under the Penal Code³² or the Code of Criminal Procedure.³³ Nor has caselaw directly defined the term; it is defined negatively. A conviction is not final for enhancement purposes under two circumstances. First, unless otherwise provided by statute, a conviction with a suspended sentence is not final until the probation is revoked.³⁴ Second, appealed convictions become final only after the judgment of conviction is affirmed.³⁵ Like all other elements of enhancements, each of these aspects of finality must be proved beyond a reasonable doubt.³⁶

1. Probated Sentences

      Because there is no executed “sentence,” a probation case typically only becomes final upon revocation.³⁷ This rule is based on two principles. First, there is a procedural need for a sentence to execute the judgment of conviction.³⁸ Second, the Texas Constitution expressly permits suspended sentences.³⁹ For the purposes of enhancement, a “‘[j]udgment’ and ‘sentence’ are not the same thing; the two are distinct and independent.”⁴⁰ Since the judge must pronounce sentence to execute the judgment, “the sentence is in fact the final judgment in the case.”⁴¹ If there is no executed sentence, the conviction is not final.⁴²

Despite the general rule, suspended sentences can be final. One situation is where an initially suspended sentence is proved final by a judgment revoking probation and imposing sentence.⁴³ The statute defining the prior offense can also specifically provide that a probated sentence is a final conviction.⁴⁴ Probated sentences from other jurisdictions are also final if the law of that jurisdiction considers suspended sentences to be final convictions.⁴⁵

2. Disposition of Appeal

      A sentence is not final until any appeal is concluded.⁴⁶ An appeal is jurisdictionally perfected upon filing a written notice of appeal.⁴⁷ If the records offered to prove the prior conviction contain any evidence of a notice of appeal, there must be additional proof to show the appeal’s result.⁴⁸ An appealed conviction becomes final on the date the mandate issues.⁴⁹ Finality must be proved at trial; an appellate court may not take judicial notice of a mandate issued in another proceeding.⁵⁰

d. Proof of Identity

Proof a final conviction is irrelevant unless it is demonstrated the defendant is actually the person previously convicted.⁵¹ Like other aspects of enhancement, identity must also be proved beyond a reasonable doubt.⁵² Evidence proving the conviction itself can be offered before identification evidence, but a further objection or motion to strike should be made if the identification evidence is incomplete.⁵³

Documents showing a conviction and bearing the same name as the defendant are insufficient by themselves to connect the accused to that conviction.⁵⁴ More than a similarity of names must be shown.⁵⁵ “Independent evidence” is necessary to show the defendant is actually the person previously convicted.⁵⁶

This independent evidence can take many forms.⁵⁷ Long recognized methods include testimony by a witness who identifies the defendant as the person previously convicted, use of a fingerprint expert to link conviction documentation to the accused, and stipulation or judicial admission.⁵⁸ Other examples of additional independent evidence include statements attributable to the accused,⁵⁹ photos in the conviction records,⁶⁰ and records showing a defendant’s address and drivers license number.⁶¹ If the identity evidence requires special knowledge, such as fingerprints or handwriting, expert testimony may be required.⁶² These fact-specific examples reveal an overall theme that proof of identity is established by the aggregate of all evidence in the record.⁶³

e. Sequential Convictions

Some statutes permit multiple enhancement if the qualifying prior convictions are “sequential.”⁶⁴ Sequential means the prior offense first must have been committed, and become final, before the later offense was committed and became final.⁶⁵ When the prior convictions must be sequential, both the dates of commission and finality must be proved beyond a reasonable doubt.⁶⁶

Proof of the sequence typically comes from the records themselves.⁶⁷ However, because an underlying charging instrument is not normally required to prove a prior conviction,⁶⁸ sometimes an indictment or other evidence is required to show the date a prior offense was committed.⁶⁹ Any challenge to proof of sequence should be should be made at trial or on direct appeal because challenges to the sufficiency of sequencing evidence on habeas corpus are quite limited.⁷⁰

f. Variance

Although often raised in as sufficiency challenges,⁷¹ variance issues are not typically matters entailing the legal sufficiency of the evidence to prove the required elements of enhancement. “Variance” has rarely been defined in Texas caselaw, but an older dissent cited secondary authorities to define it as follows: “A disagreement between the allegation and the proof in some matter which in point of law is essential to the charge or claim.”⁷² Variance complaints are in essence a challenge to whether the proof at trial established the particulars of a specific pleading.

Because variance claims focus on the specificity of the plead­ing, review has been liberalized to examine whether any dif­ference between the pleaded allegation and the proof supporting the finding hampered the defendant’s ability to prepare a defense to the charge.⁷³ The current view is that any sufficiency claim based on a difference between the charging instrument and the evidence must first be evaluated to determine if there was a “material” difference between pleading and proof.⁷⁴

 A material difference between the charging allegations and the proof at trial occurs when the variation “(1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare an adequate defense, or (2) would subject him to the risk of being prosecuted twice for the same offense.”⁷⁵ As a result, even when variance claims are raised as sufficiency challenges, these issues are not typically reviewed under the legal sufficiency standard⁷⁶ and error is only shown when the pleadings did not provide proper notice.⁷⁷

III. Collateral Attack and Habeas Corpus

Collateral attack and habeas corpus are such broad topics that a full rendition is not practical here. In any event, a brief illustration of some aspects unique to enhancement may still be instructive. Initially, two vital concepts should be understood. First is “void” versus “voidable.” Second is “collateral attack.”

a. Void vs. Voidable

A void judgment has been defined as one “in which the trial court lacked jurisdiction over the person or subject matter or in which the trial judge lacked qualification to act in any manner.”⁷⁸ Voidable judgments are those subject to “irregularities” that could result in reversal on direct appeal but do not in and of themselves render the judgment illegal.⁷⁹ The void vs. voidable classification is not finite because an offer of proof can sometimes demonstrate a judgment that appears only facially voidable is actually void.

 To demonstrate that a judgment is void, “the record must leave no question about the existence of the fundamental defect.”⁸⁰ As a result, judgments are actually void under very few circumstances.⁸¹ Habeas corpus relief is limited to jurisdictional defects or denials of fundamental or constitutional rights.⁸² The general rule is that a void conviction can be challenged at any time.⁸³

A principal difference between void judgments and voidable ones are that errors leading to voidable convictions can be waived.⁸⁴ This means the record must show the defect was called to the attention of the court in the prior proceeding. Moreover, a sole voidable defect will not render an entire judgment void.⁸⁵ Any defects like imposition of an improper cumulation order, unauthorized fine, or imposing an invalid probation that can be remedied by nunc pro tunc order or by appellate reformation to delete the illegal provision do not render a judgment void.⁸⁶

At least one significant case, Ex parte Patterson, has required a pretrial objection to a void judgment stated in the charging instrument.⁸⁷ This case may be limited to its particular procedural posture—i.e., no direct appeal was taken and the challenge was by habeas corpus to the validity of the primary indictment.⁸⁸ Nevertheless, if evidence is necessary to demonstrate voidness, caution would dictate challenging voidness by pretrial motion and at least offering any necessary documentary proof.⁸⁹

b. Collateral Attack

Generally, a “collateral attack” is a challenge to a prior judgment in a later proceeding.⁹⁰ The Court of Criminal Appeals does not appear to have formally defined the term for Texas criminal jurisprudence. In civil law, a collateral attack is the attempt to limit use of a prior judgment in a proceeding unrelated to the original lawsuit.⁹¹ In contrast to the civil definition, Texas criminal courts seem to characterize all post-conviction challenges to prior judgments as collateral attacks, even those instituted for the sole purpose of overturning the judgment itself.⁹² Part of the dichotomy stems from the lack of a clear civil procedure to overturn otherwise final judgments as is found in the habeas corpus remedy under criminal law.⁹³

As a working definition in relation to enhancements, a “col­lateral attack” appears to encompass any challenge to the va­lidity of a prior judgment as opposed to issues concerning proper proof of that judgment. Collateral claims are limited to issues that could not, or were not, asserted at trial or on direct appeal from the challenged conviction itself.⁹⁴ As a result, the terminology of collateral attack includes both objections to the validity of a prior judgment used in a later independent prosecution and independent actions aimed solely at overturning the original judgment through habeas corpus relief.

c. Procedure to Assert Voidness Claims

A collateral attack on enhancement, can be raised at trial, on appeal, and by post-conviction writ. To entirely vacate the original judgment, the proceeding must be asserted in the original court of conviction.⁹⁵ Challenges to use of prior judgments in a later trial are asserted in the proceeding where enhanced pun­ishment is sought.⁹⁶ In either procedural context, any defect not already shown by the record must be preserved by proper objection and demonstrated by an offer of proof showing the defect.⁹⁷

Because it is a challenge to the validity of the judgment, a collateral attack must demonstrate a prior conviction is improper because of a jurisdictional or fundamental constitutional defect.⁹⁸ Jurisdictional challenges address the power of the court to act either on the subject matter or the person subject to the judgment,⁹⁹ including convictions for offenses outside of the court’s jurisdiction, such as a misdemeanor in felony court,¹⁰⁰ or an illegal sentence.¹⁰¹ A jurisdictional challenge can also include objecting to use of a non-qualifying prior conviction alleged as an element of the offense in the prior conviction.¹⁰² Constitutional challenges include such fundamental issues as denial of counsel,¹⁰³ non-waiver of jury trial,¹⁰⁴ and incompetency to stand trial.¹⁰⁵ Challenges to underlying indictments or information are no longer cognizable by collateral attack,¹⁰⁶ nor are other matters that could have been asserted on direct appeal.¹⁰⁷

As discussed above, if the judgment is not void on its face, then evidence is necessary to prove the infirmity. Proof of any defect must be sufficient to overcome the presumption of regularity and shift the burden back to the State.¹⁰⁸ Initially, the defendant must present sufficient proof to show the defect exists.¹⁰⁹ Testimony that the defendant does not remember if certain rights were asserted or denied is insufficient.¹¹⁰ Nor will unsupported assertions by the convicted person support a finding of fact necessary to invalidate the conviction.¹¹¹ A finding that any defect exists must be supported by credible evidence.¹¹²

A sentence can be overturned if a conviction used for enhancement is vacated by a later habeas corpus proceeding.¹¹³ Error in using that judgment must be preserved by objection in the trial where the conviction was used.¹¹⁴ This preservation of error concept is linked to the rule that charging instrument allegations vest the trial court with authority to act even if there is a defect in the procedure bringing about the prior conviction.¹¹⁵ An exception to the preservation of error requirement is a constitutional claim of ineffective assistance of counsel where proper investigation or objection would have preserved the error and there is no proper reason why counsel did not act.¹¹⁶

IV. Appellate Remedies

Appellate remedies for improper enhancement are primarily governed by whether the prior conviction was alleged as a general enhancement increasing punishment only or as an element raising the offense level. For non-reformable errors relating to the punishment stage only, the remedy is remand for a new sen­tencing hearing.¹¹⁷ If a prior judgment was insufficient to prove an element of the offense, then the remedy is acquittal of the higher offense under the legal sufficiency standard.¹¹⁸

Acquittal of a greater offense does not always result in a wholly new trial. When appropriate, the reviewing court can reform the judgment to show a lesser offense and remand for re-sentencing.¹¹⁹ Appellate reformation to a lesser included offense is, however, limited to cases where the jury was charged on the lesser offense¹²⁰ and bench trials.¹²¹

Under current law, double jeopardy does not bar use upon re-trial of an insufficiently proved general enhacement alleged only for increased penalty.¹²² Nor does remand for evidentiary or procedural errors bar the appropriate proof of the alleged convictions.¹²³ The State is permitted another opportunity to prove the prior conviction properly.

V. Conclusion

Prior convictions can often be the most important matter affecting punishment. The rules governing notice, admissibility, evidentiary sufficiency, and procedural remedies have been applied in a piecemeal fashion. This approach often makes an all-encompassing view of the matter difficult. Nevertheless, as an important part of Texas criminal justice, these issues will continue to present themselves and must be addressed. Hopefully, this attempt to draw together those disparate yet interrelated legal principles will help others address the issues as they arise.

Notes

1. Ford v. State, 334 S.W.3d 230, 234–235 (Tex.Crim.App. 2011)(statutory language stating an offense “shall be punished as” a greater offense increases the applicable penalty range while the grade of the primary offense remains the same).

2. Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999)(“prior intoxication offenses are elements of the offense” of felony DWI, and because “they define the offense as a felony,” they are part of the State’s proof in the “guilt-innocence state of the trial”).

3. See Moff v. State, 131 S.W.3d 485, 490 (Tex.Crim.App. 2004)(“Both litigants and reviewing courts should be careful to distinguish claims of improperly admitted evidence (trial error) from legal insufficiency of all admitted evidence—even improperly admitted evidence. This Court has not always been sufficiently careful in that regard . . .”); Zone v. State, 118 S.W.3d 776, 778 (Tex.Crim.App. 2003)(Meyers, J., concurring)(noting that admissibility and sufficiency are interrelated but reviewed differently—i.e., abuse of discretion for the decision to admit and de novo to determine if the evidence proves the fact beyond a reasonable doubt); Zimmer v. State, 989 S.W.2d 48, 51 (Tex.App.—San Antonio 1998, pet. ref’d)(“Documents such as booking slips, or penitentiary packets, while admissible, are generally insufficient alone to prove prior convictions”).

4. See, e.g., Moff, supra, at 492 (failure to object to admissibility did not waive sufficiency claim).

5. This distinction is often blurred because of the different remedies applied when the prior conviction affects only the penalty assessed as opposed to a conviction that is an element of the offense. If the evidence is insufficient to raise the penalty range, the remedy is simply a remand for a new punishment hearing. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007). On the other hand, if a prior conviction is an element of the offense, the remedy is acquittal of the greater offense. Cuellar v. State, 40 S.W.3d 724, 729 (Tex.App.—San Antonio 2001, affirmed 70 S.W3d 815).

6. Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App. 1987); Williams v. State, 980 S.W.2d 222, 226 (Tex.App.—Houston [14th Dist.] 1998, pet. ref’d).

7. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007); Jones v. State, 711 S.W.2d 634, 636 (Tex.Crim.App. 1986); but see Ex Parte Brown, 757 S.W.2d 367, 368 (Tex.Crim.App. 1988)(“may not in habeas corpus proceedings inquire into questions of the sufficiency of the evidence upon which the judgment was rendered”).

8. Ex parte Miller, 330 S.W.3d 610, 624 (Tex.Crim.App. 2009); Jordan v. State, 256 S.W.3d 286, 292 (Tex.Crim.App. 2008).

9. Griffin v. State, 181 S.W.3d 818 (Tex.App.—Houston [14th Dist.] 2005, pet. ref’d)(defendant acknowledged conviction during his testimony in guilt-innocence phase of trial).

10. Bryant v. State, 187 S.W.3d 397, 402 (Tex.Crim.App. 2005)(by stipulating to enhancements defendant waived “his right to put the government to its proof of that element”); Ford v. State, 243 S.W.3d 112, 117 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d)(plea and stipulation to indictment containing enhancement paragraphs supported finding of true).

11. Smith v. State, 158 S.W.3d 463, 464–65 (Tex.Crim.App. 2005)(stipulation to a conviction waived sufficiency claim that it was too remote to serve as a jurisdictional predicate for a felony DWI); Ex Parte Girnus, 640 S.W.2d 619, 621 (Tex.Crim.App. 1982)(prior convictions offered as impeachment in guilt-innocence); Griffin, supra at 821 (defendant’s testimony during guilt-innocence sufficient).

12. Ex Parte Rich, 194 S.W.3d 508, 513 (Tex.Crim.App. 2006); see also Mikel v. State, 167 S.W.3d 556, 559 (Tex.App.—Houston [14th Dist.] 2005, no pet.)(plea of true did not bar direct appeal challenge that first prior conviction was not final before second conviction because defect shown in the conviction records).

13. See Williams v. State, 309 S.W.3d 124, 130–131 (Tex.App.—Texarkana 2010, pet. ref’d)(despite plea of true when prior judgment reflected a notice of appeal and no mandate admitted, the evidence was insufficient).

14. Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007).

15. Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000)(records of court proceedings are generally regarded as accurate).

16. Id.; see also Montgomery v. State, 876 S.W.2d 414, 415–16 (Tex.App.—Austin 1994, pet. ref’d)(because defendant failed to object to proof of prior conviction by information contained in pre-sentence investigation, that documentation was sufficient to show the conviction).

17. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007).

18. Tennard v. State, 802 S.W.2d 678, 681 (Tex.Crim.App. 1990)(quoting Tompkins v. State, 774 S.W.2d 195, 201 (Tex.Crim.App. 1987), aff’d, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989)); see also Ham v. State, 313 S.W.3d 450, 453 (Tex.App.—Amarillo 2010, pet. ref’d)(“Prima facie evidence is that quantum of proof on which the fact finder may find the matter in issue established unless rebutted by other evidence”).

19. Thompson v. State, 108 S.W.3d 287, 292 (Tex.Crim.App. 2003)(presumption of finality “disappears” where sentencing language in judgment contradicted by other evidence in record).

20. Fletcher v. State, 214 S.W.3d 5, 6 (Tex.Crim.App. 2007)(records showed notice of appeal so mandate required to prove finality); Magic v. State, 217 S.W.3d 66, 71 (Tex.App.—Houston [1st Dist.] 2006, no pet.)(booking sheet offered to prove conviction showed appellant gave notice of appeal).

21. See McGinnis v. State, 746 S.W.2d 479, 482 (Tex.Crim.App. 1988)(defect in original record from clerk but not in pen pack).

22. See Acosta v. State, 650 S.W.2d 827, 828 (Tex.Crim.App. 1983)(burden of proof to show otherwise regular judgment is on defendant); Schneider v. State, 9 S.W.3d 466, 468 (Tex.App.—Fort Worth 1999, no pet.)(must make an offer of proof if defect in prior judgment not apparent on face); see also Fluellen v. State, 104 S.W.3d 152, 168 (Tex.App.—Texarkana 2003, no pet.)(“it is not enough to argue [appellant] might have appealed; he must affirmatively present evidence of such an appeal”)(emphasis in original).

23. Ex Parte Evans, 964 S.W.2d 643, 647 (Tex.Crim.App. 1998)(“conviction” means “a judgment of guilt and the assessment of punishment”).

24. Art. 42.01 (1)(8), Tex. Code Crim. Proc. (2012)(judgment shall reflect any finding of guilt).

25. Stokes v. State, 688 S.W.2d 539, 541 (Tex.Crim.App. 1985).

26. Art. 42.02, Tex. Code of Crim. Proc. (Supp. 2012).

27. Langston v. State, 776 S.W.2d 586, 588 (Tex.Crim.App. 1989).

28. Petruccelli v. State, 174 S.W.3d 761, 771 (Tex.App.—Waco 2005, pet. ref’d)(Massachusetts “commitment order” identifying offense, sentence accompanied by parole certificate); Blank v. State, 172 S.W.3d 673, 674 (Tex.App.—San Antonio 2005, no pet.)(“Case Synopsis” from Illinois was not the functional equivalent of a judgment because it listed only the name of the offense, plea, and a “fine” with no amount); Gentile v. State, 848 S.W.2d 359, 360 (Tex.App.—Austin 1993, no pet.)(drivers license abstract alone does not prove the terms of any judgment).

29. See Johnson v. State, 725 S.W.2d 245, 246–47 (Tex.Crim.App. 1987)(pen pack without indictment sufficient); but see Renshaw v. State, 981 S.W.2d 464, 465 (Tex.App.—Texarkana 1998, pet. ref’d)(no proof of date offense committed within 10-year DWI rule).

30. Ex parte Miller, 330 S.W.3d 610, 626 (Tex.Crim.App. 2009)(ineffective assistance by appellate counsel to not challenge failure of pen pack to show se­quence of prior convictions); Renshaw v. State, 981 S.W.2d 464, 465–466 (Tex.App.—Texarkana 1998, pet. ref’d)(since limitations can be waived, docket sheet that showed when cases filed but not date of commission did not satisfy DWI 10-year rule); Williams v. State, 837 S.W.2d 759, 764 (Tex.App.—El Paso 1992, no pet.)(conviction records showed first prior felony committed previous to second becoming final so did not prove proper sequence).

31. See Sec. 12.42, Tex. Penal Code Ann. (2012)(raising felony punishment if defendant “previously has been finally convicted”); Sec. 12.35 (c), Tex. Penal Code Ann. (2012)(state jail punishment raised if defendant “previously has been finally convicted”). It is important to note that several other enhancement statutes omit the word “finally.” See, e.g., Sec. 12.43, Tex. Penal Code Ann. (2012)(enhancing misdemeanor if defendant “has been before convicted”); Sec. 22.01 (b)(2), Tex. Penal Code Ann. (2012)(“previously convicted” of family violence); Sec. 31.03 (e)(4)(D), Tex. Penal Code Ann. (2012)(theft punishment elevated if “previously convicted”); Sec. 38.04 (b)(2)(A), Tex. Penal Code Ann. (2012)(“previously convicted” of evading arrest). Despite the fact that some statutes do not specifically require “final” convictions, the caselaw history of the term, and the legislature’s awareness of that history, has lead the courts to apply a finality requirement to those provisions. See Jordan v. State, 36 S.W.3d 871, 873–874 (Tex.Crim.App. 2001); State v. Newsom, 64 S.W.3d 478, 481 (Tex.App.—El Paso 2001, no pet.).

32. Cuellar v. State, 70 S.W.3d 815, 827 (Tex.Crim.App. 2002, Keasler, J., dissenting).

33. Travis County Attorney v. J.S.H., 37 S.W.3d 163, 166 (Tex.App.—Austin 2001, no pet.).

34. Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992)(“It is well-settled that a probated sentence is not a final conviction for enhancement purposes unless it is revoked”).

35. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007)(mandate must be issued).

36. Henry v. State, 331 S.W.3d 552, 556 (Tex.App.—Houston [14th Dist.] 2011, no pet.)(where records showed notice of appeal and no mandate admitted, “no rational trier of fact could have found the second enhancement paragraph true beyond a reasonable doubt”); Williams v. State, 309 S.W.3d 124, 131 (Tex.App.—Texarkana 2010, pet. ref’d)(even though defendant pleaded true, judgment stating notice of appeal given was legally insufficient to prove finality).

37. Ex parte White, 211 S.W.3d 316, 319 (Tex.Crim.App. 2007); Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992).

38. See Art. 42.02, Tex. Code Crim. Proc. (2012)(“The sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law”).

39. See Art. IV, Sec. 11a, Tex. Const., provides that courts “having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe.”

40. Ex parte Hayden, 215 S.W.2d 620, 622 (Tex.Crim.App. 1948)(citing art. IV, Sec. 11a, supra).

41. Hayden, supra, at 622.

42. Ex Parte Evans, 964 S.W.2d 643, 647 (Tex.Crim.App. 1998)(“conviction” means “a judgment of guilt and the assessment of punishment”); Stokes v. State, 688 S.W.2d 539, 541 (Tex.Crim.App. 1985)(proof of a proper “sentence” is required because a sentence implements the judgment); White v. State, 353 S.W.2d 229, 230 (Tex.Crim.App. 1962)(“pronouncement of sentence . . . essential to a final judgment of conviction”).

43. Jordan v. State, 36 S.W.3d 871, 873 (Tex.Crim.App. 2001)(where judgment shows probation, there must be proof of a revocation and resolution of any appeal from that revocation to demonstrate finality); Wilson v. State, 857 S.W.2d 90, 97 (Tex.App.—Corpus Christi 1993, pet. ref’d)(where documentation showed probation revoked on May 31, 1988, and nothing indicated any appeal, the “presumption” is that the conviction was final).

44. See, e.g., Sec. 42.12 (c)(2), Tex. Penal Code Ann. (Supp. 2012)(providing for automatic life imprisonment for probated prior convictions of listed sexual offenses); Sec. 49.09(d), Tex. Penal Code (Supp. 2012)(certain intoxication offenses occurring after September 1, 1994, considered final even if probated).

45. Skillern v. State, 890 S.W.2d 849, 883 (Tex.App.—Austin 1994, pet. ref’d)(federal law provides probated sentences are final); see also Barela v. State, 180 S.W.3d 145, 148 (Tex.Crim.App. 2005)(under Arizona law, a person “is ‘convicted’ when there has been a determination of guilt by verdict, finding, or acceptance of a guilty plea”).

46. Jordan v. State, 36 S.W.3d 871, 873, 875 (Tex.Crim.App. 2001).

47. Rule 25.2(b), Tex. R. App. Proc. (2012); see also Espinoza v. State, 843 S.W.2d 729, 731–732 (Tex.App.—Austin 1992, pet. ref’d)(because silence of the record will support finding that there was no jurisdictional notice of appeal, notation of clerk that “notice of appeal was not given and that an appeal was perfected” did not overcome presumption of finality).

48. See Jones v. State, 711 S.W.2d 634, 636 (Tex.Crim.App. 1986)(where sentence recited notice of appeal, “[i]t then became the State’s further duty to show the final disposition of such appeal”).

49. Jordan v. State, 36 S.W.3d 871, 873, 875 (Tex.Crim.App. 2001)(“A conviction from which an appeal has been taken is not considered final until the appellate court affirms the conviction and issues its mandate”); see also Beal v. State, 91 S.W.3d 794, 795–976 (Tex.Crim.App. 2002)(records showing new offense committed after judgment signed but before mandate in prior case were insufficient to show final conviction); but see Williams v. State, 899 S.W.2d 13, 15 (Tex.App.—San Antonio 1995, pet. ref’d)(accepting “judgment affirming appeal” in pen pack because mandate defined as a command of the court, which the court is authorized to give and which must be obeyed,” citing Black’s Law Dictionary, p. 867 (5th ed. 1979)).

50. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007)(deprives defendant of the right to contest the evidence); Magic v. State, 217 S.W.3d 66, 71 (Tex.App.—Houston [1st Dist.] 2006, no pet.)(could not rely on pre-sentence report where it did not describe disposition of appeal).

51. Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007).

52. Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App. 1987).

53. See, e.g., Beck v. State, 719 S.W.2d 205, 214 (Tex.Crim.App. 1986)(unsworn testimony of identification witness waived by failure to object before jury argument); Davis v. State, 268 S.W.3d 683, 716 (Tex.App.—Fort Worth 2008, pet. ref’d)(because admission of prior conviction record conditional on proving identity of person convicted, motion to strike should be granted if no connection shown); Smith v. State, 998 S.W.2d 683, 688 (Tex.App.—Corpus Christi 1999, pet. ref’d)(if the evidence does not “in the aggregate” support a finding of identity, a “motion to strike should be granted”).

54. Zimmer v. State, 989 S.W.2d 48, 51 (Tex.App.—San Antonio 1998, pet. ref’d)(although documents showing convictions may be admissible for that purpose, they “are generally insufficient alone to prove prior convictions”).

55. Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App. 1986)(documentation alone insufficient “even if the name on the judgment and sentence in the pen packet is the same as the defendant in trial”).

56. Griffin v. State, 866 S.W.2d 754, 756 (Tex.App.—Tyler 1993, pet. ref’d)(“Even if the name on the judgment or other document is the same as that of the defendant on trial, it is incumbent on the State to go forward and show by other independent evidence that the defendant is the same person convicted”); but see Benton v. State, 336 S.W.3d 355, 359–60 (Tex. App.—Texarkana 2011, pet. ref’d)(holding it was “unlikely” that there were two different persons named “Courtney Antoine Benton” convicted in Harris County during a short time period).

57. Flowers v. State, 220 S.W.3d 919, 922 (Tex.Crim.App. 2007)(colorfully noting “there is more than one way to skin a cat”); Littles v. State, 726 S.W.2d 26, 31 (Tex.Crim.App. 1987, on reh’g)(no exclusive manner to show identity).

58. Gollin v. State, 554 S.W.2d 683, 686 (Tex.Crim.App. 1977). It should be noted that Gollin was overruled in Littles v. State, 726 S.W.2d 26 (Tex.Crim.App. 1984), but only to the extent it could be interpreted as establishing exclusive methods. Id. at 32.

59. Paschall v. State, 285 S.W.3d 166, 175 (Tex. App.—Fort Worth 2009, pet. ref’d)(jail phone calls referring to the convictions by city name);

60. Williams v. State, 946 S.W.2d 886, 895 (Tex.App.—Waco 1997, no pet.)(“Photographs made available to the jury for comparison with the accused can provide the independent evidence necessary to prove the accused was previously convicted as alleged”).

61. Flores v. State, 139 S.W.3d 61, 64 (Tex.App.—Texarkana 2004, no pet.)(despite lack of physical description and thumb print on DWI records, certified drivers license history provided sufficient connection where officer testified they bore defendant’s address and drivers license number).

62. Menefee v. State, 928 S.W.2d 274, 278, nt. 1 (Tex.App.—Tyler 1996, no pet.)(“comparison by the jury of handwriting samples alone, without the aid of expert testimony, is insufficient to establish identity”); see also Smith v. State, 489 S.W.2d 920, 922 (Tex.Crim.App. 1973)(expert testimony required for comparison of signatures).

63. See, e.g., Flowers v. State, 220 S.W.3d 919, 923 (Tex.Crim.App. 2007)(trier of fact permitted to decide from “totality of the evidence”); Littles v. State, 726 S.W.2d 26, 32 (Tex.Crim.App. 1984, on rehearing)(fingerprints in one pen pack proved conviction and another pen pack referenced the proved conviction and contained a photo of defendant—though “unorthodox” the aggregate evidence was sufficient to prove identity in the second conviction); Rios v. State, 557 S.W.2d 87, 92 (Tex.Crim.App. 1977)(difference between name in indictment and conviction record is irrelevant if fingerprint evidence shows the person named in the records and defendant on trial are the same person); Hood v. State, 705 S.W.2d 844, 845 (Tex.App.—Austin 1986, no pet.)(combination of pen pack from one county, transport records from another county, police officer’s testimony as to “normal process,” identity of names, and prison numbers were sufficient when “taken together”).

64. There are two types of statutes governing enhancement with multiple prior convictions. One type requires require proof of the convictions’ sequence. See, e.g., Sec. 12.42(a)(2) & (d), Tex. Penal Code (Supp. 2012)(proof of two se­quential prior convictions will raise a state jail felony penalty to that of a second-degree felony and other felonies to a penalty range of 25 years to life if the second previous felony conviction is for an offense that occurred subsequent to the first conviction having become final”). A second type permits use of multiple convictions but does not require any proof of sequence. See, e.g., Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999)(because not specified in statute, DWI convictions to raise misdemeanor grade to felony not required to be in sequence); Gowan v. State, 18 S.W.3d 305, 307 (Tex.App.—Beaumont 2000, pet. ref’d)(state jail felony convictions to raise state jail offense grade to third-degree felony need not be sequential and can be final on same day); Clark v. State, 751 S.W.2d 917, 918 (Tex.App.—Tyler1988, no pet.)(prior thefts not required to be sequential to enhance misdemeanor to felony).

65. See Tomlin v. State, 722 S.W.2d 702, 705 (Tex.Crim.App. 1987), stating:

The sequence of events must be proved 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.

Accord Jordan v. State, 256 S.W.3d 286, 290–91 (Tex.Crim.App. 2008), quoting Tomlin, supra, with approval.

66. Tomlin v. State, 722 S.W.2d 702, 705 (Tex.Crim.App. 1987)(“This Court has consistently held that where there is no evidence to show the offenses were committed and became final in the proper sequence, the defendant’s sentence may not be enhanced”).

67. Ponce v. State, 89 S.W.3d 110 (Tex.App.—Corpus Christi 2002, no pet.)(“recital in the judgment of conviction specifying the date of the offense constitutes evidence of that date”).

68. Johnson v. State, 725 S.W.2d 245, 246–247 (Tex.Crim.App. 1987)(pen pack need not contain indictment to be sufficient).

69. Ex parte Benavidez, 696 S.W.2d 582, 583 (Tex.Crim.App. 1985)(judgment did not reflect date offense committed and no charging instrument admitted); Ex parte Girnus, 640 S.W.2d 619, 621 (Tex.Crim.App. 1982)(that offense committed prior to other enhancement could be inferred from statute of limitations); but see Ex parte Klasing, 738 S.W.2d 648, 650 (Tex.Crim.App. 1987)(when jury assesses punishment, they must be instructed on the proper statute of limitations).

70. Ex Parte Brown, 757 S.W.2d 367, 368 (Tex.Crim.App. 1988)(may not raise challenge to sequence proof by habeas corpus); see also Ex parte Miller, 330 S.W.3d 610, 626 (Tex.Crim.App. 2009)(failure to raise proof of sequence was cognizable because that omission was ineffective assistance by appellate counsel).

71. See Rogers v. State, 200 S.W.3d 233, 326 (Tex.App.—Houston [14th Dist.] 2006, pet. ref’d)(sufficiency challenge that charging instrument did not allege “bodily injury” proved at trial and included in the charge, was reviewed as a variance claim).

72. Cochran v. State, 30 S.W.2d 316 (Tex.Crim.App. 1930, on reh’g, Lattimore, J., dissenting).

73. Id.; see also Cochran v. State, 107 S.W.3d 96, 99 (Tex.App.—Texarkana 2003, no pet.)(variance claim based on lack of formal pleading for enhancement allegation held harmless where defendant had notice and admitted conviction in his testimony).

74. Fuller v. State, 73 S.W.3d 250, 252–253 (Tex.Crim.App. 2002)(allegation of victim’s name not “material” because the victim’s identity is not a statutory element of the offense against which the evidence must be measured to evaluate legal sufficiency); Derichsweiler v. State, 359 S.W.3d 342, 349–350 (Tex.App.—Fort Worth 2012, pet. ref’d )(variance claim based on fact that indictment alleged a 2003 conviction “final” before a 1998 conviction rejected because sequence of enhancement offenses need not be alleged and sufficient information provided to permit defendant to find and investigate prior convictions, thus the allegation was not “material”).

75. Id., citing Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001)(challenge to evidentiary sufficiency should be made against a “hypothetically correct” jury charge representing the indictment allegations and the statutory elements).

76. Rogers v. State, 200 S.W.3d 233, 326 (Tex.App.—Houston [14th Dist.] 2006, pet. ref’d).

77. Absent a showing of surprise, variance challenges concerning prior con­victions will not result in reversal. See, e.g., Freda v. State, 704 S.W.2d 41, 42–43 (Tex.Crim.App. 1986)(name of offense); Cole v. State, 611 S.W.2d 79, 82 (Tex.Crim.App. 1981)(cause number); Plessinger v. State, 536 S.W.2d 380, 381 (Tex.Crim.App. 1976)(style of case); Reese v. State, 905 S.W.2d 631, 635 (Tex.App.—Texarkana 1995, pet. untimely filed)(number of convicting court); Davis v. State, 684 S.W.2d 201, 209 (Tex.App.—Houston [1st Dist.] 1984, pet. ref’d)(date of conviction).

78. Ex parte McCain, 67 S.W.3d 204, 209 (Tex.Crim.App. 2002). This also includes denials of fundamental guarantees as “claims that are cognizable on a writ of habeas corpus [are] those which raise either jurisdictional defects or constitutional claims.” Id. at 210.

79. Ex Parte Seidel, 39 S.W.3d 221, 224 (Tex.Crim.App. 2001)(discussing “void v. voidable” and concluding that “while a judgment is merely ‘voidable for irregularity,’ it is ‘void for illegality,’” quoting Ex parte White, 98 S.W. 850, 851 (Tex.Crim.App. 1906)).

80. Nix v. State, 65 S.W.3d 664, 668 (Tex.Crim.App. 2001)(missing reporters record showing denial of counsel prevented raising issue on direct appeal and judgment presumed regular).

81. See Nix v. State, 65 S.W.3d 664 (Tex.Crim.App. 2001), which stated as follows:

A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complain) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court, (3) the record reflects there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel when such has not been waived, in violation of Gideon v. Wainwright. While we hesitate to call this an exclusive list, it is very nearly so.

Id. at 668.

82. Ex parte McCain, 67 S.W.3d 204, 210 (Tex.Crim.App. 2002).

83. Ex Parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006)(prior conviction shown to have been reduced to misdemeanor could be raised on habeas corpus because illegal sentence can be challenged at any time); Ex parte Black, 922 S.W.2d 181, 182 (Tex.Crim.App. 1996)(sentence exceeded statutory minimum); LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992)(improper cumulation order); Fullbright v. State, 818 S.W.2d 808, 809 (Tex.Crim.App. 1991)(void sentence); but see Ex parte Patterson, 969 S.W.3d 16, 19–20 (Tex.Crim.App. 1998), discussed below.

84. See, e.g., Ex parte McCain, 67 S.W.3d 204, 207 (Tex.Crim.App. 2002)(violation of statute requiring appointment of counsel in prior conviction should have been raised on direct appeal and not cognizable by habeas corpus); Espinosa v. State, 115 S.W.3d 64, 66 (Tex.App.—San Antonio 2003, no pet.)(could not challenge lack of judicial oath in prior conviction where not raised on direct appeal from that conviction); Tamez v. State, 27 S.W.3d 668, 671 (Tex.App.—Waco 2000, pet. ref’d)(lack of objection in prior conviction to return of indictment in a different court than conviction waived “right to challenge this irregularity in a subsequent proceeding”).

85. Rhodes v. State, 240 S.W.3d 882, 888 (Tex.Crim.App. 2007)(there is a difference between an entire judgment being “void” and a portion of a judgment being “void”).

86. Id. (“a judgment or sentence containing an irregularity which may be reformed on appeal or by nunc pro tunc entry is not void,” quoting Ex parte King, 240 S.W.2d 777 (Tex.Crim.App. 1951)).

87. See Ex parte Patterson, 969 S.W.3d 16, 19–20 (Tex.Crim.App. 1998)(Art. 1.14(b), Tex. Code Crim. Proc., requires that defects of substance of form be asserted prior to trial).

88. Patterson, supra, at 17, 19.

89. The blanket statement in Ex parte Patterson concerning preservation of error seems to contradict the rule that challenges to void judgments “can be raised at any time.” See Ex Parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006). The pretrial motion requirement should likely not be overstated since evidentiary issues may not normally be raised by a motion to quash. See Meadows v. State, 170 S.W.3d 617, 620 (Tex.App.—El Paso 2005, no pet.). However, a proponent of the motion “may offer evidence to prove the allegations in the motion . . .” Perez v. State, 948 S.W.2d 362, 364 (Tex.App.—Eastland 1997, pet. ref’d). Hence, if proof supporting a defect is available, it should be asserted at the earliest opportunity.

90. See Black’s Law Dictionary, p. 261 (6th Ed. 1990)(“an attack made by or in an action or proceeding that has an independent purpose other than impeaching or overturning the judgment”).

91. The Supreme Court of Texas has defined collateral attack in a civil context as follows:

A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment stands as a bar against.

Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005).

92. See Ex parte Rieck, 144 S.W.3d 510, 516 (Tex.Crim.App. 2004)(eschewing civil labels and noting “a habeas proceeding is considered in Texas to be separate from the criminal prosecution—being a collateral, rather than direct, attack on the judgment of conviction”)(emphasis added); Ex parte Goodman, 816 S.W.2d 383, 386 (Tex.Crim.App. 1991)(Clinton, J., concurring)(“Under our current caselaw, post conviction collateral attack is available under Article 11.07, V.A.C.C.P., to raise errors of federal constitutional dimension”).

93. See Arts. 11.07, 11.072, and 11.09, Tex. Code Crim. Proc. (2012)(al­low­ing challenges to final judgments on constitutional grounds of unlawful con­finement).

94. See generally Galloway v. State, 578 S.W.2d 142, 143 (Tex.Crim.App. 1979)(collateral attack barred for “lesser infirmities” like evidentiary sufficiency and irregularities in the judgment or sentence even it they “might have resulted in a reversal had they been presented by an appeal”).

95. Felony post-conviction writs are filed in the trial court, Ex parte Burgess, 152 S.W.3d 123, 124–124 (Tex.Crim.App. 2004), but are eventually returnable to the Court of Criminal Appeals. Art. 11.07 § 3, Tex. Code Crim. Proc. (2012). The trial court can make recommendations on a felony writ action but has no jurisdiction to set aside the judgment. Board of Pardons and Paroles v. Eighth Court of Appeals, 910 S.W.2d 481, 483 (Tex.Crim.App. 1995)(any relief order from trial court void). Challenges to misdemeanor judgments are also filed in the court of conviction, which unlike felony cases may grant relief. Art. 11.09, Tex. Code Crim. Proc. (2012)(not made returnable to Court of Criminal Appeals). Either party to a misdemeanor writ action may appeal the trial court’s ruling on requested relief. Ex parte Okere, 56 S.W.3d 846, 850 (Tex.App.—Fort Worth 2001, pet. ref’d).

96. A judgment arising from an independent collateral attack in the original court of conviction can be asserted in a later prosecution. See Ex parte Har­rington, 310 S.W.3d 452, 459 (Tex.Crim.App. 2010)(can assert order from another court declaring judgment void).

97. See State v. Wilson, 324 S.W.3d 595, 600 (Tex.Crim.App. 2010)(defendant successfully proved enhancement was not final by showing probated sentence rendering guilty plea to primary offense involuntary); see also Nix v. State, 65 S.W.3d 664, 669 (Tex.Crim.App. 2001)(discussing the need for evidence to demonstrate a non-record claim).

98. Galloway v. State, 578 S.W.2d 142, 143 (Tex.Crim.App. 1979)(“A prior conviction that was alleged in a later offense may be collaterally attacked if it is void or if it is tainted by a constitutional defect”).

99. Ex Parte Seidel, 39 S.W.3d 221, 224 (Tex.Crim.App. 2001)(lack of “jurisdiction over a case renders the judgment void and it may always be collaterally attacked” whereas lack of “authority” to act may “either be void or voidable” depending on whether the error is “illegal” or “irregular”)(emphasis in original).

100. Ex parte Jones, 682 S.W.2d 311, 313 (Tex.Crim.App. 1984)(two prior thefts required to raise misdemeanor theft to felony so district court had no jurisdiction where only one conviction alleged).

101. Ex Parte Pena, 71 S.W.3d 336, 337 nt. 2 (Tex.Crim.App. 2002)(issue that sentence exceeds statutory maximum can be raised at any time); Fluellen v. State, 104 S.W.3d 152, 169 (Tex.App.—Texarkana 2003, no pet.)(trial court lacked jurisdiction to modify and reduce sentence by order outside 15-day limit of statute so resulting sentence proved to support enhancement was void).

102. Ex parte Roemer, 215 S.W.3d 887, 889–890 (Tex.Crim.App. 2007)(prior conviction for “involuntary manslaughter” did not qualify as a conviction for “intoxication manslaughter” under Sec. 49.09 (b)(1), Tex. Penal Code Ann., so resulting conviction should have been a misdemeanor); Ex Parte Roemer, 215 S.W.3d 887 (Tex.Crim.App. 2007)(involuntary manslaughter conviction improperly used to raise misdemeanor DWI to felony because that type of conviction did not qualify as an element of the offense under the felony DWI statute); Ex Parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006)(felony conviction used to enhance punishment later discovered to have been reduced to misdemeanor).

103. Ex parte Olvera, 489 S.W.2d 586, 589 (Tex.Crim.App. 1973)(“There can be no question that where an accused is indigent, without counsel, and does not waive the same, his conviction is void and it cannot be used for enhancement of punishment for another offense”); Ex parte Scott, 485 S.W.2d 921, 922 (Tex.Crim.App. 1972)(denial of counsel in prior conviction rendered it unavailable to support enhanced sentence in challenged conviction); but see Ex parte McCain, 67 S.W.3d 204, 207 (Tex.Crim.App. 2002)(violation of statute requiring appointment of counsel a “voidable claim” so not cognizable on a writ of habeas corpus) and Hill v. State, 633 S.W.2d 520, 525 (Tex.Crim.App. 1982, on reh’g)(trial objection required to assert on direct appeal).

104. Ex parte Lyles, 891 S.W.2d 960, 962 (Tex.Crim.App. 1995)(since right to a jury is “not extinguished by inaction alone,” the absence of written or oral waiver combined with defendant’s testimony he desired and did not waive a jury trial warranted setting aside the conviction); Ex parte Felton, 815 S.W.2d 733, 736 (Tex.Crim.App. 1991)(trial counsel ineffective by not objecting to improper jury waiver); State v. Garcia, 905 S.W.2d 7, 9 (Tex.App.—San Antonio 1995, pet. ref’d)(lack of required jury waiver merely voidable because statutory; if accompanied by proof he never waived right then it would be error constitutional dimension and “could” render void).

105. Bell v. State, 814 S.W.2d 229, 233 (Tex.App.—Houston [1st Dist.] 1991, pet. ref’d)(order adjudicating incompetent rendered later convictions void absent showing of judicial finding that competency regained).

106. See Art. 1.14 (b), Tex. Code Crim. Proc. (2012)(defect of “form or substance in an indictment or information” must be asserted pre-trial or defendant “may not raise the objection on appeal or in any other post-conviction proceeding); but see Huynh v. State, 901 S.W.2d 480, 481 (Tex.Crim.App. 1995)(because language of statute mentions only indictments and informations, it did not apply to “complaints” in municipal court).

107. Wilson v. State, 44 S.W.3d 602, 605 (Tex.App.—Fort Worth 2001, pet. ref’d)(refusing to review sufficiency of the evidence or irregularities of prior conviction offered as enhancement).

108. See Tatum v. State, 798 S.W.2d 569, 572, (Tex.Crim.App. 1990)(“concise statement” by counsel that evidence would prove failure to admonish defendant on range of punishment in prior conviction sufficient to shift burden); Fluellen v. State, 104 S.W.3d 152, 168 (Tex.App.—Texarkana 2003, no pet.)(prima facie showing of regularity even though the words “notice of appeal” appeared in judgment because followed by blank space for further entry that was not filled in).

109. See Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App. 1993)(no testimony by defendant that he did not intend to waive a jury).

110. Robinson v. State, 739 S.W.2d 795, 799 (Tex.Crim.App. 1987)(defendant’s lack of recollection as to whether he signed waivers or received admonishments did not defeat presumption of regularity).

111. Disheroon v. State, 687 S.W.2d 332, 334 (Tex.Crim.App. 1985)(“appellant must show that he was without counsel by some evidentiary vehicle other than simply his own testimony”).

112. See Ex Parte Rich, 194 S.W.3d 508, 510 (Tex.Crim.App. 2006)(proof felony enhancement conviction was reduced to a misdemeanor); Ex Parte Lyles, 891 S.W.2d 960, 962 (Tex.Crim.App. 1995)(affidavits from defendant and counsel showed client wanted a jury so lack of written waiver rendered judgment from bench trial invalid); Bell v. State, 814 S.W.2d 229, 233 (Tex.App.—Houston [1st Dist.] 1991, pet. ref’d)(judgment of incompetency prior to trial combined with no subsequent order finding competency re-established).

113. Ex parte Harrington, 310 S.W.3d 452, 459 (Tex.Crim.App. 2010)(failure of defense counsel to investigate prior conviction defendant claimed was based on another using his identity was ineffective warranting new sentencing hearing in the later case where the prior conviction was used for enhancement); but see Ex parte Jimenez, 361 S.W.3d 679, 683–684 (Tex.Crim.App. 2012)(Tex.Crim.App. Feb. 8, 2012)(“status” as a felon at time possession of firearm offense committed not affected by vacation of felony conviction after the offense).

114. Ex parte Deitzman, 851 S.W.2d 304, 305–306 (Tex.Crim.App. 1993)(vacation of enhancement conviction in separate later habeas proceeding required new punishment hearing in case where enhancement used because objection lodged at trial and supported by a record complete with statement, transcript, briefs, and opinion from the challenged conviction).

115. See generally State v. Duke, 59 S.W.3d 789, 792–792 (Tex.App.—Fort Worth 2001, pet. ref’d)(improper to dismiss felony DWI indictment because prior convictions alleged for enhancements were based on non-final misdemeanors; any objections should have been raised at those prior proceedings and prior judgments could be reformed to misdemeanors and still qualify for enhancement), compare Ex Parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006)(reduction of prior conviction to misdemeanor upon motion for new trial was not apparent from records available to trial or appellate counsel, so later assertion of voidness to support felony enhancement not waived).

116. Ex parte Harrington, 310 S.W.3d 452, 459 (Tex.Crim.App. 2010)(counsel should have investigated defendant’s allegation he was not the person previously convicted); Ex parte Miller, 330 S.W.3d 610, 626 (Tex.Crim.App. 2009)(failure to raise fact that pen packs did not establish date of second offense to prove committed after first final was ineffective assistance by appellate counsel); Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992)(ineffective to not discover prior was “shock” probation rendering prior conviction non-final).

117. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007)(lack of finality required new hearing on punishment even where State attempted to show appellate court a mandate not offered at trial); Mendez v. State, 212 S.W.3d 382, 388 (Tex.App.—Austin 2006, pet. ref’d)(proper remedy for failure to read enhancement paragraphs and accept plea was remand for new punishment trial); Fortier v. State, 105 S.W.3d 697, 700 (Tex.App.—Amarillo 2003, pet. ref’d)(remand for punishment required where trial court expressly considered state jail prior conviction as third degree even though sentence imposed was within range of punishment for single enhancement).

118. Cuellar v. State, 40 S.W.3d 724, 729 (Tex.App.—San Antonio 2001, affirmed 70 S.W.3d 815)(where prior judgment alleged as element of the offense was not a final conviction, insufficient evidence required acquittal).

119. See generally, R. 43.2, Tex. R. App. Proc. (2012)(types of appellate judgments); Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App. 1993)(reviewing court could reform judgment to lesser included offense and remand for re-assessment of punishment).

120. See Haynes v. State, 273 S.W.3d 183, 191 (Tex.Crim.App. 2008)(where neither party requests a lesser included offense charge, the only appellate remedy for insufficient evidence to prove an element of the offense is acquittal).

121. See generally Shute v. State, 877 S.W.2d 314, 314 (Tex.Crim.App. 1994)(trial court in bench trial is authorized to find any lesser offense proved at trial); accord Mello v. State, 806 S.W.2d 875, 877 (Tex. App.—Eastland 1991, pet. ref’d)(request for finding on lesser included offense not required in bench trial); see also Getts v. State, 155 S.W.3d 153, 155 (Tex.Crim.App. 2005)(in a bench trial upon plea of guilty proper to reform felony DWI to misdemeanor and remand for sentencing where jurisdictional prior conviction did not qualify under statute).

122. Monge v. California, 524 U.S. 721, 734, 118 S.Ct. 2246, 2248–2253, 141 L.Ed.2d 615 (1998)(double jeopardy principles generally not applicable to non-capital sentencing proceedings); Jordan v. State, 256 S.W.3d 286, 292 (Tex.Crim.App. 2008)(“When a reviewing court determines that the State’s evidence fails to show that an enhancement allegation is true, the Double Jeopardy Clause does not bar the use of the enhancement conviction during a retrial on punishment”); Mendez v. State, 212 S.W.3d 382, 388 (Tex.App.—Austin 2006, pet. ref’d)(no “double jeopardy implications” from failure to join issue by reading allegations and entry of plea so “the state may seek an enhanced punishment upon remand”); but see York v. State, 342 S.W.3d 528, 560, 561 (Tex.Crim.App. 2011, Womack, J., concurring)(noting that Apprendi v. New Jersey, 530 U.S. 466, 494–495, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that a punishment-phase issue increases the maximum possible punishment becomes “an element of the offense and its relitigation may be barred by double jeopardy”).

123. McNatt v. State, 188 S.W.3d 198, 204 (Tex.Crim.App. 2006)(reversal for untimeliness of enhancement notice does not bar use at re-trial).

The year of our Lord 2012 saw the passing of two gifted men, each of whom practiced their craft in the criminal law courts of Bexar County, Texas. More often than I would have thought, these past months I have reflected much on my experience with each man. I realize that it is likely that most of you never worked with or come to know either of these men. Unfortunately for those who never did, it is also as likely that had you been around and worked with either man, you would have felt something special in the experience. Surprisingly, though, the impact on me has assumed a different and much more meaningful character than merely fond memories of a colleague now gone.

Each man lifted the spirit of the room they occupied; each earnestly advocated his position with integrity, passion, and a unique set of skills; each exemplified so many traits of what an attorney should be. I give thanks for Jimmy Parks Jr. and Charles “Chip” Rich III. For me and on behalf of our community, I am thankful for their existence. As I have pondered about their lives, however, I began to realize that I received an unexpected gift . . . a different perspective on justice. More than a pleasant remembrance of two very special people, what has surprisingly unfolded is a different way I now think about our adversarial sys­tem. Unexpectedly, I continue to walk away from their funerals toward a new vision of justice. 

As we know, the adversarial system of justice in which we live and work is said to be the best in the world. Often in jury selections our judges speak to the panel about how our system is the best (it’s funny how we always want to think we are the best). Contrary to an inquisitorial system, where one or more judges are tasked with investigation and decision, adversarial litigants face off in battle before an ostensibly impartial judge or jury. But, contrary to its assumed crown of superiority, our system is not without its critics. Some have traced our system to the medieval mode of trial by combat, where superior force and ingenuity were determinative factors. Legal scholars continue to question whether justice is truly served in our current system by pointing out that the system is more concerned with resolving controversies rather than finding the ultimate truth. All too often, added fuel for such criticism is the inequitable resource that one side often has over the other. This is particularly true in our criminal justice system, where the weight of the government’s advantage is in manpower, funds, and authorized secrecy. But such becomes the game in winning and losing, where superior force and ingenuity again rule the day. Indeed, truth be told, does not lady ethics also suffer a blow where the higher value is placed on winning rather than the search for truth?

The passing of my two colleagues spurred me to focus on the justice of our adversarial system of justice. Much was written and said about each man after their respective passing: each life commendable, memory of each well deserved. Though each worked in the same courthouse and the same area of law, however, their lives did not often intersect. They were not social friends, insofar as I know; they did not attend the same church or share the same close friends. What they did share were remarkable good qualities in their strident passion for law and justice; they were both outstanding advocates; they both loved their children and families immensely; they both were strong in their faith; they both demonstrated remarkably pleasant and charismatic personalities; and they both carried the name of their respective fathers.

What struck me, however, is neither the differences nor similarities of their lives. That is, I came to realize that it is not their personalities or advocacy skills that have had the greatest impact on my life. Rather, I have been enlightened and intrigued by the crossroad that the proximity of their deaths has brought me to. To me, the most enlightening aspect of their coexistence in our courts and my life (and indeed, the interesting temporal proximity of their deaths) is the fascinating juxtaposition that I discovered.

To clarify, a bit more explanation of each is necessary.

Jimmy Parks Jr. was 61 years old when he passed away. As a criminal defense attorney, Jimmy was a warrior extraordinaire. He took the defense of citizens-accused to a form of art. Having fought alongside him in many battles and shared many conversations about life, I saw, felt, and knew the fiery passion within him for constitutional principles of fairness, burden of proof, and presumption of innocence. His very existence constantly called out for justice.

Charles “Chip” Rich III was 46 years old when he passed away. By all accounts, he too was a warrior extraordinaire. As a felony prosecutor in the district attorney’s office, he passionately and tirelessly argued on behalf of victims and against the ravages of crime. Having worked against him and listening to similar stories of others, I saw clearly that Chip held an unbreakable conviction for righteousness, fairness, and the rule of law. Similar to Jimmy, Chip’s very existence constantly called out for justice.

I attended the funeral services of each of these good men. Central to my new line of thought, it was evident that each was a faithful man, passionately devoted to living the word of God. They each gave of themselves to our community outside of law, truly living out the type of life God desires of all of us. When I shared offices with Jimmy, I came to know him as a Christian man who daily studied the Bible. We discussed the meaning and breadth of chapters 61 and 56 of the Book of Isaiah, where scripture teaches that God “loves justice” and we are to “maintain justice and do what is right.” I later learned the same was true of Chip, as he was a devoted reader of the Bible and an active and involved member of his church community. How did they interpret these Biblical calls for justice in the context of their profession? How do I and others respond? Interestingly, these two devoted followers of Christ chose diametrically opposed tracks in their search for justice.

And therein lies what I see as a juxtaposition:  their heartfelt passionate advocacy of diametrically opposing positions in an adversarial criminal justice system, yet each relying on the exact same spiritual force and principles for guidance. I liken it to two trains traveling down parallel tracks in our criminal justice system; two trains consistently taking different parallel tracks of advocacy, never touching each other. Ostensibly, we (and I assume each of these men) have viewed this as a parallelism that is necessary in order to intersect at justice. Now, however, I begin to wonder whether the temporal and substantive crossroad of Jimmy and Chip’s lives and deaths is meant in part to steer me to see justice in a new light.

As noted above, our adversarial judicial system depends on two opposing sides vigorously advocating and defending their position. We are taught since law school, if not before, to conclude that such a clash of titans births justice. And because justice is a spiritual foundational bedrock, it is reasonable for me to conclude that Jimmy and Chip zealously advocated his respective position sincerely believing he was fulfilling his role in God’s will. Heck, we all do!

But is it reasonable to cavalierly conclude that justice is borne through such a system? Should we walk away from the dying of these two men with the simplistic notion that two solid, weary warriors for justice will now rest, and life in our criminal justice system will, and should, ramble down its tracks as before? Or can the duality of Jimmy and Chip’s lives and deaths cause us to re-think our notion of justice and advocacy? That is, is it satisfactory for opposing lawyers to continue to travel parallel tracks separated by a chasm of ideology, fiercely advocate for their respective positions, and simply trust that “justice” is the inevitable destination? If so, how do we rationalize the seeming dichotomy of attorneys such as Jimmy and Chip who are devoted followers pursuing the same Biblical justice? Is this continued parallelism the best route to accomplish what the prophet Isaiah meant when he wrote “do right” under the law? Adversarial advocacy—is this “doing right”?

I’m not so sure. Probably a bit crazy, but I’m unwilling to dismiss the proximity of the passing of these opposing warriors as happenstance. I’m actually foolish enough to think that the juxtaposition of these two lives and deaths is meant to spur me and us to seek greater understanding and development. The duality and ultimate convergence of Jimmy and Chip’s lives and deaths has led me to envision the possibility of a different path towards a crossroad where the spirit of these two devoted God-followers and adversaries ultimately met. A crossroad where the spirit of justice that each man embodied can live as one. A course of direction where strict and separated parallelism is not the best course. I am led to envision a place where I—and all of us—could actually become the embodiment of one spirit of justice. Where one lawyer can zealously advocate for her client, yet still understand, empathize, and wrap herself within the spirit of the other’s position. Is this possible? If so, how?

I sat as a prospective juror in a jury selection months ago, and watched and listened as two opposing lawyers attempted to steer their respective trains toward justice. The prosecutor carefully and meticulously worked to diminish the concept of “proof beyond a reasonable doubt.” Despite its position as the highest burden of proof in our land, if not the world, “reasonable doubt” was cut to shreds—all in the name of “justice.” By the time it was over, any citizen-juror who was naïve to the reasoning for such a high standard of proof was left to conclude that some degree of doubt was the inevitable result in any presentation of evidence. The prosecutor left the distinct impression, if not overt irrefutable conclusion, that it would be absurd to think no one could be convicted in the presence of doubt.

Alarmingly, in his explanation of this time-honored principle, the prosecutor made no distinction between “reasonable,” “unreasonable,” or any other kind of doubt; rather, he suggested that elimination of “doubt” is impossible, and that “doubt” inevitably exists in all determinations one makes in life. Clearly, in his view as an official representative of our great State, “doubt,” reasonable or otherwise, should not pose a stumbling block on the road to “justice.”  Interestingly (and in my opinion, tragically), the “defense” attorney sat silent.  The prosecutor then cut against another treasured principle of justice by asserting that we were there as jurors to ultimately decide if the defendant was guilty or “innocent” (which, of course, is a wrong statement of the law). Again, the defense attorney sat silent.

As a former federal prosecutor of over ten years, I wondered why this prosecutor felt it necessary to effectively minimize the State’s burden of proof and cut against what clearly our forefathers felt necessary to protect against injustice. Did this prosecutor fear that the quality of his evidence traveled dangerously close to the cliff of loss? I wondered whether the “win” became more important than the principles of justice on which our country was built, and therefore minimizing our treasured bedrock of justice seemed appropriate and necessary. Why not embrace the spirit of justice that is the foundation for this standard of proof, and confidently assert that his proof is more than sufficient to prove guilt? Sure, there were others in the courtroom who could have voiced an opposition to the prose­cutor’s explanations, and indeed our “adversarial” system depends on the opposition to voice objection. But I wondered, was exposing these misimpressions to non-informed citizens the best way to reach the intersection of justice?

I wonder whether the “win” we all pursue becomes more important than the principles on which our country was built— indeed, the principles on which our Bible was written. Principles such as that found in Genesis 18 and Exodus 23, where the system of law prioritized the protection of the innocent from punishment. This is the same principle later reinforced by forefathers John Adams (“it is more important that innocence be protected than it is that guilt be punished”) and Benjamin Franklin (“it is better 100 guilty persons should escape than that one innocent person should suffer”), and later recognized by our nation’s Supreme Court as a principle inherent in our Constitution.

It would be good if my experience in jury selection was unusual, but unfortunately I’ve seen this form of antagonistic, adversarial approach many times before. We hear prosecutors and defense attorneys sarcastically and derogatorily referring to the other as a member of “the dark side,” even though both faithfully seek light and understanding from the same Bible and worship the same God. An attitude of antagonism, distrust, and opposition too often pervades their dealings and affects their arguments in court. All too often, opposing attorneys travel down the same exhaustive parallel tracks toward a perceived goal of justice, yet still remain separated by a chasm void of mu­tual understanding or empathy.

I have a feeling that the juxtaposition and proximity of the lives and deaths of my friend Jimmy and the honorable Chip, their faith, and their passion for justice is too much to overlook. I believe the convergence of their passion and spiritual devotion is closer to the intersection where I should live—where we all should live in our advocacy. I am not for overturning our adversarial system. Rather, I am led to move forward, evolve, and develop a deeper understanding, and continue to examine how I and others can travel our respective tracks with a different perspective. A perspective that weighs heavily toward a more meaningful and active understanding and empathy for the position and argument of our opponent and for the principles on which justice rests.

Where an advocate consciously and intentionally seeks, understands, and appreciates where justice rests in the opponent’s position and incorporates that into advocacy and counsel. A part of me wonders whether such a perspective would betray the zealousness with which we are required to operate and think. But quickly I dismiss the thought. For I believe that justice allows, and indeed mandates, consideration and empathy for the other’s position. And not just a meaningless nod of recognition, but rather a meaningful mutual awareness that we are all traveling toward the same intersection and an intentional weaving of such awareness into the fabric of our craft.

I believe I should examine the lives and work of Jimmy and Chip in the conjunction, and know that there lies in their duality a lesson for me and us. Rather than life in the parallel universe, we seem to have fallen into a lesson about advocacy; about life; and about Biblical and American justice. So, I pose the question: In the wake of their passing, should life in our criminal justice system ramble down the same parallel tracks as before? Or can we draw deeper meaning and lesson from this interesting proximity of life and death?