Henry v. State
2011 Tex. App. LEXIS 780
Tex. App.2011Background
- Appellant Henry was convicted by a jury of aggravated assault; the sentence was by court, not jury.
- Two prior felonies were alleged for enhancement: (1) June 29, 1987, aggravated assault of a peace officer (Cause No. 0478365) and (2) February 27, 1990, robbery (Cause No. 0553131).
- Stipulations: Henry admitted being the same person as the convicted individuals and admitted the two prior offenses, with certified judgments admitted.
- Judgment shows the second conviction (Cause No. 0553131) had notice of appeal filed, suggesting it was not yet final.
- The trial court imposed a 60-year sentence; enhancement paragraphs were found true, but appellant did not raise finality; appeal filed thereafter contends the second enhancement was not final for purposes of §12.42(d).
- Court reverses the punishment portion and remands for a new punishment hearing; conviction affirmed on the issue of insufficiency of finality for the enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence proves the second prior conviction was final for enhancement | Henry contends the second enhancement was not final due to pending appeal | State argues stipulation suffices and finality is established | No rational factfinder could find finality; reversal on punishment remand for new hearing |
Key Cases Cited
- Jones v. State, 711 S.W.2d 634 (Tex.Crim.App. 1986) (finality requires mandate when an appeal is taken)
- Fletcher v. State, 214 S.W.3d 5 (Tex.Crim.App. 2007) (state must prove finality; silent record favors appellant)
- Ex parte Chandler, 182 S.W.3d 350 (Tex.Crim.App. 2005) (mandate issued determines finality; appeal pending affects finality)
- Beal v. State, 91 S.W.3d 794 (Tex.Crim.App. 2002) (concurring approach on finality and evidence requirements)
- Bryant v. State, 187 S.W.3d 397 (Tex.Crim.App. 2005) (stipulations can withdraw proof of fact but not finality here)
- Wilson v. State, 671 S.W.2d 524 (Tex.Crim.App. 1984) (plea of true must be affirmatively shown by record)
- Williams v. State, 309 S.W.3d 124 (Tex.App.—Texarkana 2010) (notice of appeal affects sufficiency of enhancement proof)