Russell v. State , 1990 Tex. Crim. App. LEXIS 120 ( 1990 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

On April 23, 1987, appellant was adjudged guilty of aggravated robbery and sentenced to a ninety-nine year term in the state penitentiary after the sentencing jury had found an enhancement allegation to be “true.”

On direct appeal, the Court of Appeals held, inter alia, that the State had failed to prove the finality of the conviction used to enhance appellant’s punishment. Russell v. State, 744 S.W.2d 699 (Tex.App.—Eastland 1988). The court then proceeded to apply a harmless error analysis to this failure of proof, and decided that the insufficiency of the State’s evidence concerning the enhancement was harmless error. The enhancement finding was deleted, but the judgment of the trial court, as reformed, was then affirmed. We granted review of this holding and will now reverse the judgment of the Court of Appeals and remand to the trial court.

A harmless error analysis should not be undertaken when the State fails to meet its burden of proof. This general principle was applied in the context of convictions used for enhancement in Jones v. State, 711 S.W.2d 634 (Tex.Cr.App.1986). In that case, the indictment charged the prior commission of an offense which the State sought to use for enhancement purposes. The evidence, however, failed to prove that the conviction was final, as required by the terms of the indictment. Judge Teague, writing for a unanimous Court, stated

The averment in an indictment that an accused person has been convicted is sufficient to charge the finality of the prior felony conviction. However, this does not mean that such an averment is self-proving. Scott v. State, 553 S.W.2d 361 (Tex.Cr.App.1977). It is a mere pleading and it is now axiomatic that a pleading is never self-proving. To hold otherwise would render the State’s burden of proof meaningless.

Id. at 635.

It is well settled that a conviction from which an appeal has been taken is not considered to be final until the conviction is affirmed and the court’s mandate of affirmance becomes final. Jones at 636; Carter v. State, 510 S.W.2d 323 (Tex.Cr.App.1974). In the instant case, the judgment for the prior conviction relied on for enhancement recited on its face that “Defendant gave Oral Notice of Appeal this Date in Open Court, November 30, 1982.” The only other evidence concerning the judgment’s finality consisted of testimony from a probation officer who stated that she had no knowledge whether appellant’s prior conviction had become final prior to the date of the instant offense. This evidence is insufficient to satisfy the predicate necessary for the conviction’s use to enhance. Jones at 636.

The burden is on the State to make a prima facie showing that any prior conviction used for enhancement became final before the commission of the primary offense. Id. at 635; Diremiggio v. State, 637 S.W.2d 926, 928 (Tex.Cr.App.1982). Since the State failed to meet its burden to prove the enhancing conviction’s finality, the proper remedy is a reversal and remand. Jones at 636. See also McGinnis v. State, 746 S.W.2d 479 (Tex.Cr.App.1988); Glorioso v. State, 753 S.W.2d 454, 455-456 (Tex.App.-Houston [14th Dist.] 1988); Sherman v. State, 750 S.W.2d 855, 856-857 (Tex.App.-Houston [14th Dist.] 1988); Foster v. State, 727 S.W.2d 45 (Tex.App.-Beaumont 1987). The State is prohibited from future use of the insufficiently proved prior conviction for the purpose of attempting to enhance the appellant’s punishment for the primary offense. Jones at 636 and the cases cited therein.

The judgment of the Court of Appeals is reversed and this cause is remanded to the trial court.

McCORMICK, P.J., concurs in the result.