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.


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).

Ken Mahaffey
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.

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.

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