Pace, Joe

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-216-08
JOE PACE, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
IN CAUSE NO. 01-04-00518-CR FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY
Per Curiam. C OCHRAN, J., dissented.
OPINION
Joe Pace was charged with delivery of a controlled substance, and the State alleged
two prior convictions for enhancement. At punishment, the State introduced evidence that
Pace’s prior forgery conviction had been appealed. On appeal in this case, Pace alleged that
the State failed to prove that the forgery conviction was final. The First Court of Appeals
PACE - 2
affirmed, holding that the evidence was sufficient to prove that the conviction was final
because Pace admitted to being convicted of forgery and to going to prison for that offense.1
In reaching its holding, the court of appeals relied on our decision in Flowers v. State.2
Pace filed a petition for discretionary review contending, in his second ground for
review, that the court of appeals erred in relying on Flowers and that the court instead should
have relied on Jones v. State.3 In Jones, we held if the State introduces evidence that a prior
conviction has been appealed, it is then incumbent upon the State to offer proof that the
conviction has been affirmed. Pace is correct that the court of appeals erred to conclude that
the State satisfied its burden in this case. Evidence that Pace was convicted and went to
prison is insufficient to establish that the prior forgery conviction was affirmed.
Accordingly, we grant Pace’s petition for discretionary review, vacate the judgment
of the court of appeals, and remand this case to the trial court for a new punishment hearing.
We also refuse Pace’s first ground for review.
DATE DELIVERED: July 2, 2008
DO NOT PUBLISH
1
Pace v. State, No. 01-04-00518-CR, 2007 Tex. App. LEXIS 8143 (Tex.
App.—Houston [1st Dist.] Oct. 11, 2007) (not designated for publication).
2
220 S.W.3d 919 (Tex. Crim. App. 2007).
3
711 S.W.2d 634 (Tex. Crim. App. 1986).