Matthew Tyler Berry v. State ( 2004 )

NO. 07-03-0534-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 16, 2004

______________________________



MATTHEW TYLER BERRY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



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FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

NO. 103,625; HONORABLE PAMELA C. SIRMON, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Matthew Tyler Berry filed a Motion to Dismiss Appeal on January 13, 2004, averring that he no longer wishes to prosecute his appeal. The Motion to Dismiss is signed by both appellant and his attorney.

Without passing on the merits of the case, appellant's motion for voluntary dismissal is granted and the appeal is hereby dismissed. Tex. R. App. P. 42.2. Having dismissed

the appeal at appellant's personal request, no motion for rehearing will be entertained and our mandate will issue forthwith.

Phil Johnson

Chief Justice

Do not publish.

="APP">CURTIS LEE SMITH,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

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FROM THE 242^ND DISTRICT COURT OF HALE COUNTY;

NO. B17591-0803; HON. ED SELF, PRESIDING

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Memorandum Opinion

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Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

          Curtis Lee Smith appeals his conviction of possession of a controlled substance (cocaine) in an amount of less than one gram. He does so by contending he was not subject to enhancement as alleged in the indictment. We reverse and remand the judgment.

          The State alleged that appellant had previously committed a felony on August 20, 1991, in Cause No. A10855-9109 for which he was sentenced to probation on November 25, 1991, and which probation was revoked on August 5, 1994. The State then alleged that after the conviction in Cause No. A10855-9109 was final, appellant committed another felony in Cause No. B11663-9403 for which he was convicted on August 4, 1994. That felony was committed on March 9, 1994. Because the current offense is a state jail felony, see Tex. Health & Safety Code Ann. §481.115(b) (Vernon 2003), it is enhanced pursuant to §12.42(a)(2) of the Penal Code which states: “If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, 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 for a second-degree felony.” Tex. Penal Code Ann. §12.42(a)(2) (Vernon Supp. 2008).

          The pen packet admitted into evidence shows a judgment revoking probation in Cause No. A10855-9109 on August 5, 1994. A probated sentence is not a final conviction for enhancement purposes until it is revoked. Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). Since the first conviction did not become final until August 5, 1994, the second conviction did not occur prior to the first becoming final. For this reason, the evidence is not legally sufficient to support the enhancement paragraphs. Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987) (stating that when there is no evidence to show the offenses were committed and became final in the proper sequence, the defendant’s sentence may not be enhanced). This is true even though appellant pled true to the enhancement allegations. See Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006). Moreover, the error may not be deemed harmless. Jordan v. State, 256 S.W.3d 286, 292 (Tex. Crim. App. 2008). Therefore, the judgment must be reversed.

          Accordingly, we reverse the judgment and remand to the trial court for a new punishment hearing. See Ex parte Rich, 194 S.W.3d at 513 (stating that when there is error at the punishment phase, the case may be remanded for the proper assessment of punishment).

                                                                           Brian Quinn

                                                                          Chief Justice

Do not publish.