OPINION
delivered the opinion of the Court
Appellant was charged by indictment with aggravated assault by using a deadly weapon, namely, a knife. The indictment also included allegations that appellant previously had been convicted of two felony offenses. After finding appellant “guilty of aggravated assault, as charged in the indictment,” the jury found the enhancement paragraphs true and assessed punishment of thirty years’ confinement in
On direct appeal, appellant raised several claims, including a claim that the evidence was legally insufficient to support the jury’s finding that the second enhancement paragraph was true: that paragraph should not have been used to enhance her punishment range because the alleged offense did not occur in the sequence alleged in the indictment. The court of appeals held that the evidence supported the enhancement of appellant’s sentence under the habitual-offender statute and affirmed the judgment of the trial court. Id.
We granted appellant’s petition for discretionary review, which presented a single question for review: whether the opinion of the majority of the First Court of Appeals erroneously relied on an unpublished memorandum opinion as controlling precedent rather than on a published opinion from the Fourteenth Court of Appeals that involved the same issue regarding enhanced sentences and finality of the convictions in enhancement paragraphs. Appellant’s question for review also suggests that the majority opinion in the court of appeals appears to contradict this Court’s subsequent adoption of the rationale of the Fourteenth Court of Appeals. We affirm the judgment of the court of appeals.
I. Facts
The record reflects that, at the beginning of the punishment proceedings and outside of the presence of the jury, appellant’s attorney announced thаt she had “an objection to the enhancement paragraph as it’s stated on the indictment.” She stated that her objection was based upon the fact that the second enhancement paragraph’s conviction date “is actually before the conviction date on the first enhancement paragraph[.]” After hearing argument from the attorneys representing the parties, the trial court “duly noted and overruled” appellant’s objection. Thereafter, before the jury, appellant plead “true” to the two enhancement allegations as they were read from the indictment. In so reading, the prosecutor switched the order of the enhancement paragraphs, first reading the allegation in the second enhancement paragraph that appellant had committed aggravated assault and was finally convicted of that offense on August 28, 1989, and then reading the allegation in the first enhancement paragraph that appellant had committed possession with intent to deliver a controlled substance and was finally convicted of that offense оn July 8, 1991. The prosecutor also stated that the conviction alleged in the first enhancement paragraph became final after the conviction alleged in the second enhancement paragraph. After the state presented evidence in support of the prior convictions — including penitentiary packets, all the testimony and evidence that was presented in the guilt phase, the reading of the jury charge, and argument to jurors — the jury found both enhancement allegations true and assessed punishment at thirty years’ imprisonment.
II. Court of Appeals Opinion
On direсt appeal, appellant claimed that the evidence was legally insufficient to support the jury’s finding that the second enhancement paragraph was true because that paragraph should not have been used to enhance her punishment range because the alleged offense did not occur in the sequence alleged in the indictment. Ap
The court of appeals affirmed the judgment of the trial court holding that the evidence was sufficient to support the enhancement of appellant’s sentence under the habitual-offender statute and that the trial court did not err in applying the habitual-offender statute to enhance appellant’s sentence.
Roberson v. State,
III. Appellant’s Question for Review
Appellant’s sole question for review asks, “Whether the First Court of Appeals (Majority Opinion) erroneously relied on an unpublished memorandum opinion as controlling precedent rather than a published opinion
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from the Fourteenth Court of Appeals involving the same issue regarding sequencing and finality of enhancement paragraphs, and[] which Majority Opinion appears to be contradictory to this Court’s adoption of the rationale of
Mikel
in
Ex parte Rich[,]
IV. Arguments
Appellant points to the wording of the two enhancement paragraphs. The first paragraph alleged that
[b]efore the commission of the offense alleged above, (hereafter styled the primary offensе), on JULY 8, 1991, in Cause Number 0590710, in the 177TH DISTRICT COURT of HARRIS County, Texas, the Defendant was convicted of the felony of POSSESSION WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE.
The second enhancement paragraph alleged that
[bjefore the commission of the primary offense, and after the conviction in Cause Number 0590710 was final, the Defendant committed the felony of AGGRAVATED ASSAULT and was finally convicted of that offense on AUGUST 28, 1989, in Cause Number 475567, in the 232ND DISTRICT COURT of HARRIS County, Texas.
Appellant also points to the enhancement allegations and asserts that “it is a factual impossibility in time or chronology for the second previous offense to have been committed and become final in 1989
after
the first previous offense alleged to have been
Appellant also argues that the court of aрpeals, in denying her requested relief and failing to address the issue of the legally insufficient evidence regarding the second enhancement paragraph due to the impossibility of the alleged sequence of prior convictions, erroneously relied on the unpublished memorandum opinion in
Wilson v. State,
No. 14-03-00182-CR,
The state acknowledges that “[e]learly the enhancement paragraphs were alleged in reverse order and appellant’s 1991 conviction did not happen before her 1989 conviction.” State’s Response to Petitioner’s Brief on Discretionary Review at 8. It asserts that appellant’s plea of true to an enhancement paragraph forfeits her right to complain that the evidence is insufficient to support it unless the record affirmatively reflects that the prior conviction should not have bеen used for enhancement. It insists that “mere mistakes in the sequencing of enhancement paragraphs is not evidence that the enhancement could not be used, and the record affirmatively reflected that appellant’s pri- or convictions were final and met the se-quentiality requirements for enhancement under that habitual-offender statute.” Id. at 11. Succinctly, the state argues that “[t]he court of appeals properly concluded that pleading the sentencing enhancement paragraphs in reverse order, although rendеring the second enhancement chronologically impossible, did not cause the second enhancement itself to be improper and preclude the application of the habitual-offender statute[.]” Id.
The state points out that, prior to trial, appellant was given written notice of its intent to use appellant’s prior convictions for enhancement purposes, the offenses it intended to use, dates of conviction, and
Citing
Freda v. State,
V. Analysis
Appellant’s question for review includes assertions that the court of appeals erroneously relied on the unpublished memorandum opinion of
Wilson v. State, supra,
as controlling precedent. The court of appeals cited and made comparisons to the unpublished
Wilson
opinion.
Roberson,
Appellant’s legal claim concerns the sufficiency of the evidence of the enhancement allegations, specifically the second one.
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In
Ex parte Rich,
194 S.W.3d at
In Sanders, following the jury’s guilty verdict, the defendant plead “true” to an enhancement paragraph that alleged a single prior and final felony conviction. It was subsequently determined that the alleged prior felony was not final prior to the commission of the charged offense and thus could not be used to enhance punishment, in spite of the plea of true. Id. at 448.
Nevertheless, we observe that neither
Rich
nor
Sanders
involved the sufficiency of the evidence to prove the alleged sequence of enhancement allegations. In
Rich,
In
Mikel v. State,
We observe that, in Mikel, the first enhancement paragraph alleged that Mikel was convicted of “the felony of attempted possession with intent to distribute marijuana” on May 23, 2002, while the second enhancement paragraph alleged that, after the conviction in the first enhancement offense was final, Mikel committed the felony offense of escape and was finally convicted of that second offense on February 9, 2000. Id. at 558. The Mikel court pointed out that the indictment for the attempted-possession offense alleged a date of commission of “on or about” January 30, 2000, but that Mikel was not finally convicted of the attempted-possession offense until May 23, 2002. The judgment that supported the escape offense shows that that offense was committed on February 7, 2000, and that the conviction became final two days later, on February 9, 2000. The court of appeals noted that, although the attempted-possession offense became final after the escape offense, it was committed before the escape offense, and it was therefore factually impossible for the attempted-possession offense to have been committed after the escape conviction became final on February 9, 2000. Id. at 559, n. 2. Thus, in Mikel, the record evidence, rather than the enhancement-paragraph allegations, were determinative of the impossibility of the required sequencing of the prior convictions.
Texas Penal Code section 12.42(d), describing the penalty for habitual felony offenders generally, provides that
if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment ... for life, or for any term of not more than 99 years or less than 25 years.
In
Jordan v. State,
The record evidence, including penitentiary packets, reflects that the sequence of the alleged prior convictions did indeed occur in the required order. Thus the state met its burden as the evidence is sufficient to prove the statutorily required sequence of convictions in order for appellant’s punishment range to be enhanced to that of a habitual offender. Appellant does not dispute that the prior convictions did, in fact, occur in the required sequence, but rather complains about the sufficiency of the evidence based on the facially incorrect wording of the enhancement allegations in the indictment. While the indictment’s enhancement paragraphs were erroneously listed in reverse chronological order on the face of the indictment, when the prosecutor read the enhancement allegations at the punishment proceeding, they were read in the proper оrder of commission and finality and conformed to the required sequence of prior convictions. And it was to the allegations as read at the beginning of the punishment proceeding to which appellant plead “true.”
Evidentiary sufficiency is separate from allegations and notice. Allegations of prior convictions for the purpose of enhancement give pretrial notice to a defendant that the state intends to seek greater punishment and allow a defendant to prepare a defense.
See, e.g., Villescas v. State,
We also point out that evidentiary sufficiency is measured by the hypothetically correct jury charge.
Gollihar v. State,
In
Young v. State,
VI. Conclusion
We hold that the evidence in the record provides sufficient evidence to suрport the jury’s finding that the prior convictions did occur in the statutorily required sequence for habitual-offender enhancement. Accordingly we overrule appellant’s “question for review” and affirm the judgment of the court of appeals.
Notes
.
Mikel v. State,
. Appellant suggests that she may have plead "true” to only one of the two enhancement allegations. But the record reflects that the trial court asked whether she plead "true” or