Thomas Ritchie McBride v. State
03-17-00271-CR
| Tex. App. | Dec 13, 2017Background
- Defendant Thomas R. McBride convicted by jury of burglary of a habitation (second-degree felony); sentence 99 years.
- Indictment included two enhancement paragraphs alleging prior felony convictions (Dec. 5, 1979 Cause No. 28,276; June 12, 1984 Cause No. 32,729).
- Defendant pleaded “not true” to both enhancement allegations; State introduced penitentiary packets and fingerprint match for both priors.
- Pen packet for Cause No. 32,729 contained a judgment noting the defendant "gave notice of appeal in open court on June 12, 1984," but no mandate or proof of affirmance was introduced.
- Defendant does not contest proof of the 1979 conviction (Cause No. 28,276); the sufficiency question concerns finality of the 1984 conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McBride) | Held |
|---|---|---|---|
| Was there sufficient evidence that the June 12, 1984 prior conviction (Cause No. 32,729) was final for enhancement? | Judgment noted an appeal but State concedes it failed to prove finality; remedy is to reform judgment to reflect single prior (repeat offender) or remand for punishment. | The notation of appeal on the judgment defeats finality absent appellate mandate; thus the enhancement cannot be treated as proven. | The evidence was insufficient to prove the 1984 conviction was final. Because the 1979 prior was proven, the judgment should be reformed to reflect enhancement by a single prior (repeat offender) or, alternatively, remand for a new punishment hearing. |
Key Cases Cited
- Fletcher v. State, 214 S.W.3d 5 (Tex. Crim. App.) (State must prove a prior conviction is final when judgment indicates an appeal was taken)
- Jones v. State, 711 S.W.2d 654 (Tex. Crim. App.) (defendant need not raise finality issue at trial to preserve appellate review)
- Jordan v. State, 256 S.W.3d 286 (Tex. Crim. App.) (unsupported enhancement findings can require remand for punishment because impact on sentencing is speculative)
- Bell v. State, 994 S.W.2d 173 (Tex. Crim. App.) (double jeopardy does not bar State from retrying punishment-phase enhancement proof)
- Culbert v. State, 415 S.W.2d 646 (Tex. Crim. App.) (where one of two alleged priors is not proven, judgment may be modified to reflect enhancement by the proven prior)
- Monge v. California, 524 U.S. 721 (U.S.) (clarifies double jeopardy principles applicable when State retries sentencing/enhancement issues)