Ken Mahaffey

Ken Mahaffey received his JD at St. Mary’s School of Law in 1986. He served as a briefing attorney for the Third Court of Appeals from 1986 to 1987, then in the Wise County District Attorney’s Office from 1988 to 1989. Ken is currently a sole practitioner in Austin, Texas, concentrating on appellate advocacy. Part 2 of his article will appear in the April issue.

Enhancement of Punishment Under Texas Law, Part 2

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).

Enhancement of Punishment Under Texas Law, Part I

I. Introduction

There is little that can affect sentencing more than prior convictions. Enhancements are affected by many areas of law. This has led to a seemingly piecemeal interpretation by the courts. The goal of this article is to draw together the often disparate current Texas laws concerning use of prior convictions for statutory enhancement of punishment. Given the format of this publication, the article is a two-part series. The first part will present an overview of enhancement law, discussing pretrial issues and admissibility of prior conviction records at trial. Part two will cover sufficiency of the evidence to prove prior convictions, challenge of enhancement by collateral attack, and appellate remedies for enhancement errors. Hopefully, this compilation will help clarify current enhancement law and provide a framework for the practitioner to approach these issues in an organized manner.

II. Overview of Enhancements

Enhancement is a procedure authorized and governed by statute. At the outset, it is important to understand that the statutes create two basic classes of enhancement. The first type of enhancement only raises the possible punishment applicable to the primary charged offense.1 The other type of enhancement actually creates a new offense by raising the offense level of the charged crime upon proof of a prior conviction.2 Basically, one type of enhancement statute provides for an increase in punishment only and the other makes a prior conviction an element of a specific offense.3 These two different types will be referred to as “general enhancement” for punishment only and “element of offense” enhancements used to create a new separate statutory crime.

While both types of enhancements increase punishment ranges, significant procedural differences exist between the two. The most important distinction is that enhancements for “penalty only” affect the punishment stage of trial, and those constituting “elements of the offense” are part of the guilt-innocence phase.4 Other differences, discussed below, include the terms of required notice, preservation of error, and appellate remedies.

III. Statutes Define Qualified Prior Convictions

Prior convictions used for enhancement must qualify under the statutory scheme they are alleged.5 If an enhancement is an element of a new greater offense, the type of qualifying conviction will be specified in the statute defining the primary offense.6 Enhancements for the purpose of punishment only are stated in the general enhancement statutes defining the qualifying convictions by offense grade rather than specified crimes as elements of a new offense.7

a. General Enhancement

The general enhancement statutes raise the possible penalty range upon proof of a particular class of prior conviction. A particular conviction’s classification is either governed by the offense grade provided in the statute defining the offense or the penalty provided for that particular crime. A given conviction must qualify under the general enhancement statute it is alleged in order to be used to raise the penalty range.

Class A and B misdemeanor offenses may be enhanced by either prior misdemeanor convictions or a prior felony.8 “Misdemeanor” is defined both as “an offense so designated by law” and as one “punishable by fine, confinement in jail, or by both fine and confinement in jail.”9 For misdemeanor offenses outside the penal code, non-felony offenses are classified as Class B misdemeanors if punishable by possible confinement in jail.10 Any offense punishable by fine only is a Class C misdemeanor.11

Felony punishments may only be increased by proof of prior felonies.12 A “felony” is defined as “an offense so designated by law or punishable by death or confinement in the penitentiary.”13 For offenses not included in the Texas Penal Code, or prior convictions from other jurisdictions, the offense must meet the overall statutory classification of felonies.14

Different rules govern enhancement of state jail felonies and general felony enhancement. The Court of Criminal Appeals has recognized the term “state jail felony” has a different meaning than the term “felony” used in the general enhancement statute.15 This means that particular class of prior convictions is limited to either state jail felonies or ordinary felonies, depending on the text of the governing statute. Prior convictions for non-aggravated state jail felonies cannot be used to enhance other felonies.16 This places a limit on further enhancement of a state jail felony because the enhancement only increases the punishment and does not transform the primary crime into a new higher offense.17

b. Element of Offense Enhancements

When a specific prior conviction is made an element of the offense, the offense must fit within the actual elements of the crime defined by the particular enhancement statute.18 These statutes are considered “special enhancement provisions.”19 These special provisions also preclude use of those specified offense types for general enhancement even if additional convictions of that type are alleged beyond those necessary to raise the offense level.20 Other types of crimes, so long as they are distinct from the offenses listed in the special enhancement provisions and not used for both purposes, may be used as general enhancements to raise the punishment level of the increased offense created by the special enhancement.21

IV. Out-of-State Convictions

Foreign convictions from other states and federal jurisdictions can be used for Texas enhancement.22 The general enhancement provisions require only proof of a prior “felony” conviction from a jurisdiction within the United States.23 When a prior conviction from another jurisdiction is not labeled as a “felony,” its classification is determined by the length of the sentence and/or by the type of confinement facility.24

For documentation proving the foreign conviction to be admissible, the proponent of the prior conviction evidence has the burden to prove the other jurisdiction’s evidentiary requirements or the courts will presume the law is the same as in Texas.25 A trial court can take judicial notice of the other jurisdiction’s laws.26 This can be particularly important in situations where another jurisdiction considers a probated sentence final whereas Texas law would not.27

Some enhancement statutes permit use of foreign convictions identified only as the same type of crime as the charged offense if they have “substantially similar” elements.28 Whether elements are substantially similar is determined by examining “the individual or public interests protected and the impact of the elements on the seriousness of the offenses.”29 This determination is a question of law.30 Because the statutes require only the elements to be similar, the facts and circumstances of commission need not be similar to the charged offense.31

V. Multiple Use of Prior Convictions

There are restrictions on multiple use of individual prior convictions for enhancement. While the same prior conviction may be used for enhancement in different prosecutions,32 that particular prior conviction cannot be used multiple times in an individual case to both raise the offense level and to additionally enhance punishment for that increased offense.33 Certain statutes also have remoteness provisions and a single conviction cannot be used both to demonstrate another conviction is not too remote and for another enhancement purpose.34 The rule against multiple use also applies if the prior convictions are part of the ele­ments demonstrating the object offense.35 Essentially, if an individual prior conviction is employed to show an allegation that must be specifically pled and proved for any enhancement purpose, then that same conviction may not be used again in that prosecution.36 The fact that a given conviction was used in a separate previous prosecution to raise an offense level does not disqualify its use in the new case as long as each single conviction is used only for one purpose.37

VI. Pretrial Issues

There are two major pretrial issues concerning enhancement: (1) notice and (2) whether a conviction qualifies as an enhancement offense. It is important to note that evidentiary issues may not be technically asserted by pretrial motion.38 Admissibility of evidence and sufficient proof of enhancement allegations will be discussed separately in part two of this article.

a. Written Notice Must Be Filed

Due process requires proper notice of possible enhanced punishment.39 This notice is considered a mandatory pleading.40 The form of the required pleading/notice differs between the two types of enhancement allegations. Prior convictions alleged as elements of the offense to raise the offense level are jurisdictional and must be in the charging instrument.41 General enhancements are non-jurisdictional allegations which raise only the penalty level and can be in another sort of pleading.42 Regardless of which type of enhancement is sought, the pleading must be in writing and filed with the clerk.43

The overall standard of review for notice is that the defendant should not be mislead about how the prior convictions will be used at trial.44 On the most basic level, the pleading must show the State intends to seek enhancement.45 When enhancement paragraphs are included in the charging instrument, this intent is implied and no other pleading is necessary.46 While jurisdictional allegations in the charging instrument signal intent to raise the offense level, there must be an additional pleading specifying any further intent to enhance the penalty beyond the initial increase in the offense grade.47 It is not necessary to state the sequence of multiple prior convictions.48

A complete lack of written notice of enhancement intent does not have to be raised by a pretrial motion; the possibility of more lenient punishment requires no objection.49 However, trial objections are necessary to preserve error from the lack of written notice. There must be an objection at the time the defendant is asked to enter a plea on the issue or when the evidence is offered for enhancement purposes.50 An objection is also necessary before any enhancement issue is submitted to the jury.51 A plea of true may waive lack of written notice.52

b. Sufficiency of Notice

General due process notice requirements are satisfied if the defendant is provided with sufficient information to properly contest an enhancement allegation.53 This means the prior conviction must be adequately identified to enable an appropriate investigation of the records and to prepare a defense.54

Enhancement allegations need not be plead with the same specificity as the primary offense.55 However, the notice should include at least the nature or name of the offense, the date of conviction, and the county where the conviction occurred.56 Inability to locate the conviction records based on the notice must be raised by a motion to quash.57 Other defects in pleading beyond identifying the conviction are issues to assert as variance claims when the matter is submitted to the jury.58

c. Time for Filing

Due process does require timely notice of possible enhancement.59 Prior convictions constituting elements of the offense necessary to raise the offense level are jurisdictional and must be stated in the charging instrument.60 Notice of non-jurisdictional allegations—i.e., general enhancement of punishment only—may be given after the charging instrument is filed and even after the guilt-innocence phase of the trial is concluded.61 However, the notice must be given before the punishment phase begins.62 Any error concerning the timing of notice must be preserved by showing harm or surprise in a sworn motion for continuance.63

VII. Admissibility

The evidentiary standard for admission of enhancement evidence is basic relevance. This consists of two basic “elements”: i.e., (1) whether the conviction exists, and (2) whether the defendant is the person previously convicted.64

There is no exclusive manner to prove a prior conviction for enhancement.65 Methods include use of records, testimony by a person with knowledge of the conviction, and admissions by the accused.66

Procedurally, an initial challenge to the relevance or competence of the evidence is considered at the time the evidence is offered. When evidence proving the prior conviction is tendered, the burden shifts to the opponent to show why the documentation is not reliable or qualified under the governing enhancement statute.67 If a proper showing of a defect is made, then the proponent must go forward with evidence to cure identified problems.68

a. Joining Issue

For any evidence to be admissible it must be relevant to a “fact of consequence” in the case.69 This means the parties must join issue on a question for the fact finder to decide. When the enhancement is an element of the offense, issue is joined at the beginning of the guilt-innocence phase when the defendant enters a plea to the charging instrument.70 When a prior conviction is alleged only to raise the punishment range, issue is joined at the beginning of the punishment phase when the allegation is read and a plea entered to that specific allegation.71 If the trial court assesses punishment, it is not necessary to read the allegations or enter a plea.72

An objection to a lack of a written pleading can be raised at the time the plea is entered. However, there is no obligation to object to the possibility that the State waived the issue and the defendant now risks a lower punishment.73 A later objection does appear to be required when the issue is submitted to the jury.74

A mistake in not reading enhancement paragraphs at the beginning of the punishment phase can be remedied by allowing the State to reopen, read the allegations, and permitting the court to accept the plea.75 Upon proper objection, the State must re-offer any evidence necessary to prove the allegation.76

The lack of any plea can be waived by a failure to object.77 Like an omission to read the filed allegation, the trial court must have an opportunity to correct the error.78 Any error is also subject to a harmless error review.79

b. Authentication of Records

Prior convictions are often shown by a certified copy of a governmental record.80 Authentication is a prerequisite to admissibility of any records.81 This is governed by Rules 901 and 902, Tex. R. Ev. (West 2012). “Authentication” is “evidence that would support a finding that the matter in question is what its proponent claims.”82

1. Pen Packs

The most common record used to prove a felony conviction is a “penitentiary packet,” commonly referred to as a “pen pack.”83 Pen packs are prepared by Texas Department of Criminal Justice Institutional Division (TDCJ-ID).84 Authentication of pen packs is not required if they are certified records,85 because such records are “self authenticated.”86 Certified copies, or copies shown by testimony to be correct, are admissible to prove the contents of that record.87

Pen packets are usually created as follows:88

    •    the clerk of the convicting court receives the originals of the judgment and sentence;
    •    the court clerk copies the documents and certifies those copies as correct;
    •    the certified copies are sent to TDCJ-ID;
    •    the records clerk at TDCJ-ID becomes the legal custodian of the certified copies now on file with its office;
    •    the TDCJ-ID clerk prepares and certifies a packet of the records.

 Stated differently, the documents become “self-authenticated” by each record custodian’s certification. The original records are held by the trial court clerk who makes copies and certifies them as correct.89 The trial court clerk then sends the certified copies to TDCJ-ID.90 Then the TDCJ-ID record clerk makes copies of the certified copies it received from the original clerk and certifies these are correct copies of the transmitted documents.91 Since the TDCJ-ID records custodian attests the copies received from the convicting court clerk were certified as true copies of the originals, the pen pack documents are not required to bear the previous certification from the original court clerk.92 Along with instruments from the trial court clerk, TDCJ-ID records may also contain other documents like fingerprint cards, photos, and orders affirming convictions.93 While certification will meet the initial authentication requirement, the accuracy of the documents can still be challenged.94

2. Original Records from Convicting Court

Another method of proving a prior conviction is to use the original records from the convicting court. This is the typical method used for misdemeanor convictions since TDCJ-ID records generally cover only felony commitments. Like pen packs, this procedure is also governed by Rules 901 & 902, Tex. R. Ev. (West 2012).

The general procedure is similar to authenticating pen packs, however; the certification comes from the clerk of the convicting court.95 In practice, the stamped and signed certification is considered the clerk’s “seal.”96 If there is no seal, then another officer must certify that the signer has official capacity and that the signature is genuine.97 Records showing the defendant’s identity, such as booking documentation, must also be authenticated and connected to the judgment.98

3. Other Types of Governmental Records

Electronic record keeping permits prior convictions to be proved without copies of the original paper records.99 A common method is an abstract recording the fact of conviction.100 An “abstract of record” is defined as “an abbreviated, accurate, and authentic history of trial court proceedings.”101 If properly authenticated, an abstract can be the “functional equivalent” of an original judgment and sentence.102

These computerized summaries of court records must still be authenticated in the same way as copies of the original judgment and sentence. For instance, the summary or abstract must actually be a document prepared by an official agency.103 Some evidence from the record itself or otherwise must also show it is the type of record “authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.”104

c. Admissibility of Testimony Proving Prior Conviction

The existence of a prior conviction and identity of the accused can be proved without written records when a qualified witness testifies to those facts.105 The witness must both know the defendant and have personal knowledge that the person was convicted.106 An admission by the defendant107 or a stipulation will also prove the operative fact.108 In rare occasions both the fact of conviction and identity can be proved by the personal knowledge of the trial judge.109

VIII. Conclusion

Enhancement allegations are affected by so many areas of law that courts and advocates alike may have trouble knowing which standards apply to which procedure. The seemingly random way in which enhancements have been reviewed has also fostered an attitude that they need not be subjected to the same scrutiny as other charging matters or evidence offered in support. Hopefully, this article will assist both those challenging enhancements and courts reviewing those challenges so that enhancements can be approached more uniformly. A second part of this article will address other enhancement law issues concerning sufficiency of the evidence, challenges through habeas corpus, and appellate remedies.

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); see also Ex parte Carner, 364 S.W.3d 896, 898 (Tex.Crim.App. 2012) (explaining that for the purposes of punishment only “a prior conviction . . . is an attendant circumstance to the [charged] crime that increases the severity of the offense”); Calton v. State, 176 S.W.3d 231, 234–235 (Tex.Crim.App. 2005) (enhancement of penalty is not a “component” of the primary offense—
“[t]here can be no enhancement until a person is first convicted of an offense of a certain degree”).

2. Calton, supra, at 234 (when a prior conviction is designated as an element of the offense, a new greater offense is created ); Diamond v. State, 530 S.W.2d 586, 587 (Tex.Crim.App. 1975) (misdemeanor theft alleged along with a prior conviction for theft creates a “creates a new offense of the grade of felony”).

3. Calton, supra, at 233–234.

4. See 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”); Ex Parte Sewell, 742 S.W.2d 393, 395 (Tex.Crim.App. 1987) (enhancements of penalty only are properly part of the punishment phase of the trial); but see Barfield v. State, 63 S.W.3d 446, 450 (Tex.Crim.App. 2001) (bench trial is a unitary proceeding).

5. See generally State v. White, 959 S.W.2d 375, 377–378 (Tex. App.—Fort Worth 1998, pet. ref’d) (state jail felony could not be enhanced with third-degree felony because that particular class of prior felony conviction is not included in the statutory language permitting enhancement).

6. Examples include Theft—Sec. 31.03 (e) (4) (D), Tex. Penal Code Ann. (2012) (misdemeanor theft under $1,500 raised to state jail felony if previously convicted of theft two or more times); Assault Family Violence—Sec. 22.01 (b) (2), Tex. Penal Code Ann. (2012)(Class A misdemeanor assault raised to third-degree felony upon prior conviction for assault, kidnapping, or indecency if the actor had a family relationship with victim as defined by Family Code); Evading Arrest—Sec. 38.04 (b) (2)(A), Tex. Penal Code Ann. (2012) (raised to third-degree felony if committed with a vehicle and previously convicted under that section); DWI—Sec. 49.09, Tex. Penal Code Ann. (2012) (DWI becomes a third-degree felony if previously convicted of DWI or other listed offenses).

7. See e.g., General Felony Enhancements—Sec. 12.42, Tex. Penal Code Ann. (2012) (stating guidelines for increased punishment upon proof of a qualifying prior felony conviction or convictions); General State Jail Felony Enhancements —Sec. 12.35 (c), Tex. Penal Code Ann. (2012) (raising state jail felony punishment upon proof of a prior felony or use of a deadly weapon or a conviction of listed offenses); General Misdemeanor Enhancement—Sec. 12.43, Tex. Penal Code Ann. (2012) (raising minimum punishment upon proof of prior felony or misdemeanor convictions).

8. Sections 12.43 (a) & (b), Tex. Penal Code (Supp. 2012); see also Sec. 12.43 (c), supra, permitting enhancement of certain Class C misdemeanors upon proof of three prior convictions within a 24-month period before commission of the new offense.

9. Sec. 1.07 (31), Tex. Penal Code Ann. (2012).

10. Sec. 12.41 (2) , Tex. Penal Code Ann. (2012); see also Axelrod v. State, 764 S.W.2d 296, 301 (Tex. App.—Houston [1st Dist.] 1988, pet. dism’d)(applying general misdemeanor enhancement provision of Sec. 12.43 (b) to Family Code offense because that statute included jail as a possible punishment and so constituted a Class B misdemeanor under Sec. 12.41 (2)).

11. Sec. 12.41 (3), supra.

12. See Sec. 12.42 (b), (c) or (d), supra, and Sec. 12.35 (c), supra.

13. Sec. 1.07 (a) (23) , Tex. Penal Code Ann. (Supp. 2012).

14. Sec. 12.04, Tex. Penal Code (Supp. 2012), provides as follows:

(a) Felonies are classified according to the relative seriousness of the offense into five categories:

(1) capital felonies;

(2) felonies of the first degree;

(3) felonies of the second degree;

(4) felonies of the third degree; and

(5) state jail felonies.

(b) An offense designated a felony in this code without specification as to category is a state jail felony.

See also Tapps v. State, 294 S.W.3d 175, 176 (Tex.Crim.App. 2009) (rejecting Black’s Law Dictionary definition of imprisonment for more than one year).

15. Campbell v. State, 49 S.W.3d 874, 878 (Tex.Crim.App. 2001) (as used in Sec. 12.42 (a), Texas Penal Code, terms “state jail felony” and “felony” are “mutually exclusive”).

16. Sec. 12.42 (e), Tex. Penal Code (Supp. 2012) (only regular felonies can be used to enhance offense designated by Sec. 12.42 (b) (c) or (d)).

17. See State v. Webb, 12 S.W.3d 808, 811 (Tex.Crim.App. 2000) (enhancements under Sec. 12.42 apply “to the offense tried” so even if a state jail punishment was enhanced to a second-degree felony under Sec 12.35, the case for which he was convicted was still a state jail felony); State v. White, 959 S.W.2d 375. 376, 379 (Tex. App.—Fort Worth 1998, pet. ref’d) (state jail felony cannot be further enhanced as a regular felony and motion to quash enhancement paragraph should have been granted).

18. See Ex Parte Roemer, 215 S.W.3d 887, 889–890 (Tex.Crim.App. 2007) (conviction for “involuntary manslaughter” did not qualify as a conviction for “intoxication manslaughter” to raise offense level of DWI); Shaw v. State, 794 S.W.2d 544, 545 (Tex. App.—Dallas 1990, no pet.) (forgery could not be used as prior conviction for “theft”); Chambers v. State, 736 S.W.2d 192, 196 (Tex. App.—Dallas 1987, no pet.) (burglary did not qualify as a theft conviction since can be committed without completed theft).

19. Phifer v. State, 787 S.W.2d 395, 396 (Tex.Crim.App. 1990).

20. Phifer, supra at 396 (“special enhancement provisions for a primary offense have long been held to bar enhancement under general statutes only for prior offenses that could be used within the special provisions,” so prior felony DWI convictions could not be used under general enhancement statute where primary offense was DWI enhanced by other DWIs); Rawlings v. State, 602 S.W.2d 268 (Tex.Crim.App. 1980) (theft could not be further enhanced by another theft although other non-theft felony convictions would qualify); Brown v. State, 14 S.W.3d 832, 833 (Tex. App.—Austin 2000, no pet.) (prior theft convictions, regardless of number, could not enhance theft of less than $1500 beyond a state jail felony).

21. See Phifer, supra, at 397 (burglary and arson convictions could be used for further general enhancement of DWI); Rawlings, supra, at 271 (could prove murder as general enhancement of DWI but not an additional DWI conviction); Shaw v. State, 794 S.W.2d 544, 545 (Tex. App.—Dallas 1990, no pet.) (prior forgery could be used to generally enhance theft enhanced by independent prior theft convictions).

22. Rushing v. State, 353 S.W.3d 863, 867 (Tex.Crim.App. 2011) (conviction under military UCMJ qualifies because the word “state” used in enhancement statutes has acquired a meaning that includes all areas subject to United States jurisdiction); see also, e.g., Bell v. State, 201 S.W.3d 708, 711 (Tex.Crim.App. 2006) (federal); Ex parte White, 211 S.W.3d 316, 319 (Tex.Crim.App. 2007) (Delaware); Robles v. State, 141 S.W.3d 250, 254 (Tex. App.—Austin 2004, pet. ref’d)(Puerto Rico); Wieghat v. State, 76 S.W.3d 49, 52 (Tex. App.—San Antonio 2002, no pet.) (courts martial). Use of convictions from foreign countries has not been litigated. Robles v. State, 141 S.W.3d 250, 252 (Tex. App.—Austin 2004, pet. ref’d)(“courts have not addressed whether prior felony convictions from foreign nations may be used for enhancement”).

23. See generally Sec. 12.42, Tex. Penal Code (Supp. 2012). Caselaw holding that prior convictions from other jurisdictions qualify for enhancement appears to be originally based on the term “felony” and the fact that the general enhancement of penalty statutes do not define offenses. Johnston v. State, 95 S.W.2d 439, 440 (Tex.Crim.App. 1936) (permitting use of Oklahoma conviction because statute permitted enhancement by “felony” conviction less than capital); Arnold v. State, 74 S.W.2d 997, 999 (Tex.Crim.App. 1934, on reh’g) (construing prior statute to permit use of federal conviction for felony offense which was also prohibited by Texas law); see also Practice Commentary to Sec. 12.41, Branch’s Texas Annotated Penal Code (3rd. ed. 1974) (suggesting applicability to convictions from other jurisdictions).

24. See Sec. 12.41 (1), Tex. Penal Code (Supp. 2012) (felonies outside Penal Code are considered third-degree felonies if imprisonment fixed in a penitentiary); see also, e.g., Ex parte Blume, 618 S.W.2d 373, 376 (Tex.Crim.App. 1981) (federal offense that would be a misdemeanor under Texas law was properly used as a prior felony because the statute specified confinement in a “penitentiary”); Tucker v. State, 136 S.W.3d 699, 701 (Tex. App.—Texarkana 2004, no pet.) (sentence for Missouri class C felony within range of punishment for Texas third-degree felony); Cain v. State, 721 S.W.2d 493, 494 (Tex. App.—Houston [1st Dist.] 1986, no pet.) (considered two and one-half year sentence and facility).

25. Langston v. State, 776 S.W.2d 586, 587–588 (Tex.Crim.App. 1989).

26. Cox v. State, 931 S.W.2d 349, 355 (Tex. App.—Fort Worth 1996, pet. dism. as improvidently granted); but see Rule 202, Tex. R. Ev. (West 2012)(party requesting judicial notice of another jurisdiction “shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request.”).

27. See Skillern v. State, 890 S.W.2d 849, 883 (Tex. App.—Austin 1994, pet. ref’d) (because federal law provides probated sentences are final, a suspended sentence was available for enhancement).

28. See Sec. 49.09 (b)(1), Tex. Penal Code ( 2012) (offense substantially sim­ilar to Texas intoxicated manslaughter under Sec. 49.08 ( 2012)).

29. Outland v. State, No. PD-1400-11 (Tex.Crim.App. September 12, 2012) (both statutes “directed at the same individual and public interests: protecting children from sexual exploitation and the public from the dissemination of child pornography” and no significant disparity in penalty ); Prudholm v. State, 333 S.W.3d 590, 595 (Tex.Crim.App. 2011) (holding language of California sexual battery and kidnapping were not substantially similar to specific listed crimes for automatic life sentence because the California provisions protected primarily against offensive touching and restraint of movement rather than the Texas emphasis on penetration and abduction).

30. Ex parte White, 211 S.W.3d 316, 318 (Tex.Crim.App. 2007) (because it is a question of law, no jury instruction necessary).

31. Cross v. State, 114 S.W.3d 92, 100 (Tex. App.—Eastland 2003, reversed on other grounds, 144 S.W.3d 521).

32. Sec. 12.46, Tex. Penal Code Ann. (2012) (“The use of a conviction for enhancement purposes shall not preclude the subsequent use of such conviction for enhancement purposes”); Barnes v. State, 70 S.W.3d 294, 303 (Tex. App.—Fort Worth 2000, pet. ref’d) (same prior conviction can be used in different prosecutions with no double jeopardy implications).

33. Wisdom v. State, 708 S.W.2d 840, 845 (Tex.Crim.App. 1986) (may not use “a prior conviction for the dual purpose of proving an essential element of an offense and enhancing that same offense”).

34. Rodriguez v. State, 31 S.W.3d 359, 364 (Tex. App.—San Antonio 2000, pet. ref’d) (prior DWI conviction used to show another prior conviction was within the 10-year statutory time period could not be used for additional punishment enhancement).

35. Ballard v. State, 149 S.W.3d 693, 699 (Tex. App.—Austin 2004, pet. ref’d) (could not use sexual assault conviction to establish duty to register as a sex offender and also as enhancement of failure to register conviction).

36. Moore v. State, 916 S.W.2d 537, 540 (Tex. App.—Dallas 1995, no pet.) (although a felony theft may have been based on prior misdemeanor thefts, that felony theft is a single conviction so those underlying convictions are not elements that must be plead and proved to permit use for enhancement).

37. Carroll v. State, 51 S.W.3d 797, 779–800 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (because proof of prior misdemeanor was not necessary to show a felony DWI conviction, use of an underlying misdemeanor DWI conviction as a jurisdictional element to raise the instant DWI to a felony did not preclude use of a separate felony DWI conviction which was previously based on that underlying misdemeanor as a penalty enhancement to increase the punishment for a third-degree felony; regardless of their elements, both were individual convictions on their own).

38. Meadows v. State, 170 S.W.3d 617, 620 (Tex. App.—El Paso 2005, no pet.) (trial court could not evaluate the sufficiency of the evidence to support family violence enhancement allegation on a pretrial motion to dismiss); but see Ex parte Patterson, 969 S.W.3d 16, 19–20 (Tex.Crim.App. 1998) (requiring a defect of form or substance to be raised prior to trial in a context where additional evidence was required to demonstrate defect not shown by State’s pleading).

39. Villescas v. State, 189 S.W.3d 290, 294 (Tex.Crim.App. 2006).

40. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997).

41. Art. 21.03, Tex. Code Crim. Proc. (2012); but see Throneberry v. State, 109 S.W.3d 52, 60–61 (Tex. App.—Fort Worth 2003, no pet.) (subject to harm analysis on both lack of pleading and variance from un-pled allegation).

42. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997) (all cases requiring that enhancement paragraphs must be included in indictment were expressly overruled).

43. Throneberry v. State, 109 S.W.3d 52, 59 (Tex. App.—Fort Worth 2003, no pet.) (oral motion to amend indictment insufficient if not physically amended and filed).

44. See Pelache v. State, 324 S.W.3d 568, 577 (Tex.Crim.App. 2010) (could assert enhancements after finding of guilt on lesser included offense because notice sufficient to prepare a defense to allegation); see also Riney v. State, 60 S.W.3d 386, 388 (Tex. App.—Dallas 2001, no pet.) (superceded indictment will provide the proper pleading and notice).

45. Fairrow v. State, 112 S.W.3d 288, 293 (Tex. App.—Dallas 2003, no pet.) (extraneous offense notice insufficient as it does not indicate further intent to use as enhancement); accord McNatt v. State, 152 S.W.3d 645 (Tex. App.—Texarkana 2004, reversed on other grounds, 188 S.W.3d 198) (oral admonishment of possible enhancement along with impeachment if defendant testified did not provide notice—filed pleading required).

46. Marshall v. State, 185 S.W.3d 889, 903 (Tex.Crim.App. 2006) (defendant put on notice of intent to enhance by presence of enhancement paragraphs in indictment).

47. McNatt v. State, 188 S.W.3d 198, 201 (Tex.Crim.App. 2006) (jurisdictional allegations to raise offense grade do not provide notice that the State will also seek an increased penalty range at the punishment stage).

48. Jingles v. State, 752 S.W.2d 126, 129 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d) (need not allege that one conviction occurred prior to the other).

49. Luken v. State, 780 S.W.2d 264, 268 (Tex.Crim.App. 1989) (“unconscionable” to require objection to lack of any allegation more than necessary to charge a crime).

50. Ketchum v. State, 199 S.W.3d 581, 593 (Tex. App.—Corpus Christi 2006, pet. ref’d) (because defendant had actual knowledge of intent to enhance, failure to file pleading waived by failure to object when pen pack offered and by lack of a motion for continuance).

51. Marshall v. State, 185 S.W.3d 889, 903 (Tex.Crim.App. 2006) (must object to any lack of pleading when the allegation is used to join issue in punishment); see also Fairrow v. State, 112 S.W.3d 288, 293 (Tex. App.—Dallas 2003, no pet.) (preserved by motion for new trial).

52. Mayfield v. State, 219 S.W.3d 538, 540 (Tex. App.—Texarkana 2007, no pet.).

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

54. Freda v. State, 704 S.W.2d 41, 42 (Tex.Crim.App. 1986) (test is whether the accused has been misled to his prejudice); Hollins v. State, 571S.W.2d 873, 875 (Tex.Crim.App. 1978) (must be able to find the conviction record).

55. Freda, 704 S.W.2d at 42.

56. Jackson v. State, 633 S.W.2d 897, 898 (Tex.Crim.App. 1982).

57. Cole v. State, 611 S.W.2d 79, 80 (Tex.Crim.App. 1981); Steadman v. State, 160 S.W.3d 582, 585 (Tex. App.—Waco 2005, pet. ref’d).

58. Cole, supra, at 80.

59. Villescas v. State, 189 S.W.3d 290, 294 (Tex.Crim.App. 2006).

60. Art. 21.03, Tex. Code Crim. Proc. (2012) (“Everything should be stated in an indictment which is necessary to be proved”); Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App. 2000) (“when prior convictions are used to elevate what would otherwise be a misdemeanor offense to the level of a felony, they must be pled in the indictment for the trial court to gain jurisdiction”).

61. Oyler v. Boyles, 368 U.S. 448, 452, 82 S.Ct. 501, 504,87 L.Ed.2d 446 (1962); see also Pelache v. State, 324 S.W.3d 568, 576 (Tex.Crim.App. 2010) (“for purposes of conducting a due-process analysis, the determination of whether proper notice of enhancements was given does not require that notice be given within a particular period of time before trial or before the guilt phase is completed”); Villescas, supra, at 294 (“when 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”); but see Pena v. State, 191 S.W.3d 133, 139 (Tex.Crim.App. 2006) (strong dissent criticizing applicability of Oyler to the due process issue and distinguishing time for notice on the facts to which Texas courts have applied it).

62. Pelache, supra, at 576.

63. Villescas v. State, 189 S.W.3d 290, 295 (Tex.Crim.App. 2006).

64. Id. at 921.

65. See generally Flowers v. State, 220 S.W.3d 919, 921–922 (Tex.Crim.App. 2007), and Handspur v. State, 792 S.W.2d 239 (Tex. App.—Dallas 1990, reversed 816 S.W.2d 749, Onion J., dissenting) (illustrating numerous methods).

66. Id.

67. Robinson v. State, 739 S.W.2d 975, 799 (Tex.Crim.App. 1987)(burden shifted to defendant to show invalid jury waiver after otherwise regular judgment introduced).

68. McGinnis v. State, 746 S.W.2d 479, 482 (Tex.Crim.App. 1988).

69. Rule 401, Tex. R. Ev. (West 2012).

70. Turner v. State, 897 S.W.2d 786, 789 (Tex.Crim.App. 1995) (compliance with Art. 36.01, Tex. Code Crim. Proc., to “join issue” is mandatory because not doing so could mislead defendant into believing enhancement was waived); see also McNatt v. State, 152 S.W.3d 645, 651 (Tex. App.—Texarkana 2004, reversed on other grounds, 188 S.W.3d 198) (reading the indictment with jurisdictional allegations and acceptance of a plea joined issue).

71. Ex Parte Sewell, 742 S.W.2d 393, 395 (Tex.Crim.App. 1987) (reading of paragraphs and entry of plea on enhancement allegations mandatory under Art. 36.01, Tex. Code of Crim. Proc., to properly “join issue”).

72. Reed v. State, 500 S.W.2d 497, 499 (Tex.Crim.App. 1973); Garner v. State, 858 S.W.2d 656, 660 (Tex. App.—Fort Worth 1993, pet. ref’d).

73. Marshall v. State, 185 S.W.3d 889, 903 (Tex.Crim.App. 2006) (obligation arises when submitted to jury); Luken v. State, 780 S.W.2d 264, 268 (Tex.Crim.App. 1989) (no pretrial objection required for lack of enhancement pleading).

74. Marshall, supra, at 903; see also Throneberry v. State, 109 S.W.3d 52, 60 (Tex. App.—Fort Worth 2003, no pet.) (variance objection preserved charge error for reversal even though written notice error was found harmless).

75. Partida v. State, 279 S.W.3d 801, 805 (Tex. App.—Amarillo 2007, pet. ref’d).

76. Reese v. State, 340 S.W.3d 838, 843–844 (Tex. App.—San Antonio 2011, no pet.)(State must re-offer evidence after late reading of enhancement allegation but only that evidence necessary to prove the allegation); Mendez v. State, 212 S.W.3d 382, 388 (Tex. App.—Austin 2006, pet. ref’d) (error to permit jury to consider evidence offered before plea); Hernandez v. State, 190 S.W.3d 856, 871 (Tex. App.—Corpus Christi 2006, no pet.)(request for instruction that jury not consider evidence prior to plea sufficient to require re-offer of evidence proving enhancement allegations).

77. Lee v. State, 239 S.W.3d 873, 876–877 (Tex. App.—Waco 2007, pet. ref’d); see also R. 44.2(c)(4), Tex. R. App. Proc. (2012) (entry of plea presumed unless disputed at trial or shown by contrary record).

78. Lee, supra, at 876–877.

79. Id.

80. Beck v. State, 719 S.W.2d 205, 209 (Tex.Crim.App. 1986) (“most popular method”).

81. Rule 901(a), Tex. R. Ev. (West 2012).

82. Id.

83. Reed v. State, 811 S.W.2d 582, 584–585 (Tex.Crim.App. 1991).

84. Id.

85. Rule 901 (b) (7), Tex. R. Ev. (West 2012) (authentication sufficient if writ­ings are authorized for filing as public record).

86. Rule 902 (1), Tex. R. Ev. (West 2012) (public documents under seal).

87. Rule 1005, Tex. R. Ev. (West 2012); Sims v. State, 783 S.W.2d 786, 789 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (business record affidavit not required).

88. See generally Reed v. State, 811 S.W.2d 582, 584–585 (Tex.Crim.App. 1991).

89. Id.

90. Id. at 584.

91. Id. at 585. In older pen packs, another official, typically the presiding judge of the county where TDCJ-ID is located, attests the record clerk’s signature and capacity. Id. In turn, the county clerk certifies the judge’s capacity to execute the certificate. Id. at 586; see also Carpenter v. State, 781 S.W.2d 707, 710 (Tex. App.—Dallas 1989, pet. ref’d) (all certification blanks must be signed by appropriate officer). This multiple certification procedure appears to be based on 28 U.S.C. § 1739, presumably to make pen packs admissible in other jurisdictions. Authentication is now governed by Rule 902, Tex. R. Ev. (West 2012), so that the interlocking certification is no longer necessary. See generally Reed, supra, at 586).

92. Reed, supra, at 586 (judgments are generally labeled as court documents so the certification is presumed); but see Banks v. State, 158 S.W.3d 649, 653 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (complete lack of seal or proof of signer’s capacity made Illinois pen pack inadmissible).

93. See, e.g., Littles v. State, 726 S.W.2d 26, 32 (Tex.Crim.App. 1984, on rehearing) (fingerprints and photos); Williams v. State, 899 S.W.2d 13, 15 (Tex. App.—San Antonio 1995, pet. ref’d) (“judgment affirming appeal”in pen pack).

94. Reed, 811 S.W.2d at 587.

95. See also Aikens v. State, 790 S.W.2d 66, 69 (Tex. App.—Houston [14th Dist.] 1990, no pet.) (deputy clerk may sign for clerk).

96. Rule 902 (1), Tex. R. Ev. (West 2012) (official seal and signature attesting sufficient); Linker v. State, 764 S.W.2d 35, 27 (Tex. App.—Fort Worth 1989, no pet.) (because document bore a seal, no additional attestation of records clerk’s capacity needed).

97. Rule 902 (2), Tex. R. Ev. (West 2012).

98. See Zimmer v. State, 989 S.W.2d 48, 53 (Tex. App.—San Antonio 1998, pet. ref’d) (fingerprint evidence on a booking slip did not provide sufficient reference to connect with the judgment of conviction).

99. Flowers v. State, 220 S.W.3d 919, 922 (Tex.Crim.App. 2007) (noting “the day may come in which written judgments are largely obsolete”).

100. See Mitchell v. State, 848 S.W.2d 917, 918 (Tex. App.—Texarkana 1993, pet. ref’d) (“abstract” of Indiana conviction).

101. Black’s Law Dictionary, p. 10 (6th ed. 1990).

102. Langston v. State, 776 S.W.2d 586, 588 (Tex.Crim.App. 1989); Mitchell, supra, at 918; see also Flowers, 220 S.W.3d at 925 (court printout sufficient in combination with driver’s license record).

103. Rule 901(b)(7), Tex. R. Ev. (2012).

104. See Rule 901 (b)(7), supra, and Blank v. State, 172 S.W.3d 673, 675 (Tex. App.—San Antonio 2005, no pet.) (mere fact the abstract bore a “seal” did not show it was the type of record authorized to filed in the certifying office, citing Rule 901).

105. Flowers v. State, 220 S.W.3d 919, 921–922 (Tex.Crim.App. 2007) (testimony by one who was present at time of conviction).

106. Roberts v. State, 321 S.W.3d 545, 555 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (officer knew defendant and had knowledge of conviction); Davis v. State, 268 S.W.3d 683, 717 (Tex. App.—Fort Worth 2008, pet. ref’d) (testimony by wife who knew defendant for years and had personal knowledge of penitentiary time was sufficient to prove identity).

107. Carlock v. State, 139 S.W.3d 90, 93 (Tex. App.—Texarkana 2004, no pet.) (neighbor testified defendant said he was previously imprisoned for sex convictions).

108. Bryant v. State, 187 S.W.3d 397, 402 (Tex.Crim.App. 2005) (stipulation was judicial admission even when not offered in evidence); but see Henry v. State, 331 S.W.3d 552 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (finding stipulation insufficient because it only addressed conviction not sentence so documentation showed a notice of appeal defeated presumption of finality).

109. Miller v. State, 21 S.W.3d 327, 330 (Tex. App.—Tyler 1999, pet. ref’d) (trial judge had presided over prior conviction). This procedure could be problematic as there is no practical opportunity for cross-examination or other similar challenge to test the reliability of the evidence. See Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007)(judicial notice by appellate court of another proceeding deprives defendant of the right to contest the evidence).