Affirmed in Part, Reversed and Remanded in Part, and Opinion filed 

December 22, 2016.

In The 

Fourteenth Court of Appeals 

NO. 14-15-00937-CR

ANDRE ONEAL HUNTER, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 230th District Court 

Harris County, Texas 

Trial Court Cause No. 1476760 

O P I N I O N 

Andre Oneal Hunter appeals from a conviction for assault of a family 

member as a second offender, a third-degree felony. See Tex. Pen. Code § 

22.01(b)(2)(A) (West 2015). Appellant brings two issues on appeal: (1) the trial 

court erred in admitting three letters into evidence, and (2) the evidence is legally 

insufficient to sentence appellant as a habitual offender. We overrule appellant’s 

evidentiary challenges and affirm his conviction. However, because there is
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insufficient evidence to show that appellant was a habitual offender, i.e., that the 

prior offenses were committed and became final in the proper sequence, we reverse 

the sentence imposed by the trial court and remand for a new punishment hearing.

I. BACKGROUND

Appellant committed the charged offense against complainant at her 

residence on June 13, 2014, by repeatedly hitting and choking her. Appellant had 

been involved in a dating relationship with complainant for a couple of months 

before this assault. 

Appellant was charged by indictment with the offense of assault of a family 

member as a second offender, enhanced by two prior felony convictions. The jury 

found appellant guilty of the charged offense. At the punishment phase to the 

court, the state re-offered and the trial court admitted all of the evidence admitted 

during the guilt-innocence phase of the trial. Appellant pleaded “not true” to the 

enhancement paragraphs. The trial court found the allegations in the indictment’s 

two enhancement paragraphs true and assessed punishment at 25 years’ 

confinement in the Institutional Division of the Texas Department of Criminal 

Justice. Appellant timely filed a notice of appeal. 

II. DISCUSSION

a. Authentication of the Letters 

In his first issue, appellant contends that the State did not properly 

authenticate three letters he purportedly wrote to complainant while he was in jail. 

Appellant maintains that the trial court erred in admitting the letters into evidence. 

i. Standard of Review and Applicable Law 

We review a trial court’s ruling on an authentication issue for abuse of 

discretion. See Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). The 
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trial court need not be persuaded beyond all doubt that the proffered evidence is 

authentic; rather, the key question for admissibility is whether the proponent has 

supplied facts sufficient to support a reasonable jury determination that the 

evidence is authentic. Barfield v. State, 416 S.W.3d 743, 749 (Tex. App.—Houston 

[14th Dist.] 2013, no pet.). “If the trial court’s ruling that a jury could reasonably 

find proffered evidence authentic is at least within the zone of reasonable 

disagreement, a reviewing court should not interfere.” Tienda v. State, 358 S.W.3d 

633, 638 (Tex. Crim. App. 2012) (internal quotations omitted). 

Authentication is required for the admissibility of evidence. Washington v. 

State, 485 S.W.3d 633, 640 (Tex. App.—Houston [1st Dist.] 2016, no pet.). To 

satisfy the requirement of authenticating an item of evidence, the proponent must 

produce evidence to support a finding that the item is what the proponent claims it 

is. Tex. R. Evid. 901(a). Evidence, such as the letters at issue here, may be 

authenticated by “[a] nonexpert’s opinion that handwriting is genuine, based on a 

familiarity with it that was not acquired for the current litigation.” Id. 901(b)(2). 

An item’s contents or other distinctive characteristics, taken together under all the 

circumstances, may also satisfy the requirement. Id. 901(b)(4). 

ii. Analysis 

The State initially proffered three letters purportedly written by appellant 

after asking complainant a few questions, the answers to which indicated that she 

knew appellant wrote the letters. For instance, complainant testified that appellant 

wrote his name on the letters, they contained nicknames appellant called 

complainant, she was familiar with appellant’s handwriting, and the handwriting in 

question was consistent with appellant’s handwriting. Appellant objected on the 

grounds of improper authentication because the handwriting on each of the letters 

appeared to be dissimilar. The trial court agreed that the handwriting was 
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dissimilar and permitted the State to lay more foundation. 

Complainant testified that she was familiar with appellant’s handwriting 

apart from the proffered letters. Indeed, complainant saw appellant’s handwriting 

every day, and she noted that appellant’s handwriting varied from time to time. 

Complainant recognized appellant’s handwriting in each of the three letters. The 

State again offered the letters into evidence and appellant objected on the same 

grounds. The trial court overruled appellant’s objections and admitted the letters. 

Appellant’s three handwritten letters were properly authenticated through 

complainant’s testimony here. Complainant was familiar with appellant’s 

handwriting, and her familiarity was not acquired for the current litigation. In 

response to some concerns that the handwriting seemed to vary from one letter to 

another, complainant explained that appellant’s handwriting varied from time to 

time. Furthermore, the letters contained unique identifiers, such as the nicknames, 

and the letters focused on legal matters consistent with the status of appellant’s 

legal predicament.1

 See id.; see also Druery, 225 S.W.3d at 502–03 (holding letter 

purported to be from inmate contained information that inmate likely would have 

possessed and was sufficient to authenticate letter absent tampering or other fraud). 

The trial court did not abuse its discretion by impliedly concluding that the State 

had supplied facts sufficient to support a reasonable jury’s determination that the 

evidence was authentic. See Barfield, 416 S.W.3d at 749–50. Accordingly, we 

overrule appellant’s first issue. 

b. Sequence of Prior Convictions in the Enhancement Paragraphs 

In his second issue, appellant contends he is entitled to a new trial on 

punishment because the evidence is insufficient to sustain a finding of true to the 

 

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In the letters, appellant encouraged complainant to drop the charges against appellant 

and to provide a false story about her injuries.
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punishment enhancement paragraphs. Specifically, he argues that the State failed 

to prove the proper sequence of the offenses identified in the two enhancement 

paragraphs. 

i. Standard of Review and Applicable Law 

“In reviewing legal sufficiency of the evidence in the punishment phase, we 

view the evidence in a light most favorable to the trial court’s ruling and determine 

whether any rational trier of fact could make the finding beyond a reasonable 

doubt.” Mikel v. State, 167 S.W.3d 556, 560 (Tex. App.—Houston [14th Dist.] 

2005, no pet.). 

 An individual found guilty of an unenhanced third-degree felony cannot be 

sentenced to more than ten years’ imprisonment in the Texas Department of 

Criminal Justice. Tex. Pen. Code § 12.34(a) (West 2015). However, if it is shown 

on the trial of a felony offense “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,” then the punishment range is 25 to 99 years. Id. § 12.42(d) (West 2015). To 

properly apply this habitual-offender statute to enhance appellant’s sentence, the 

State must have proven: 

(1) the first conviction became final; (2) the offense leading to a later 

conviction was committed; (3) the later conviction became final; and 

(4) the defendant subsequently committed the offense for which he 

presently stands accused.

Hopkins v. State, 487 S.W.3d 583, 586 (Tex. Crim. App. 2016); Roberson v. State, 

420 S.W.3d 832, 839 (Tex. Crim. App. 2013); Jordan v. State, 256 S.W.3d 286, 

290–91 (Tex. Crim. App. 2008). When there is no evidence to show that the 

offenses were committed and became final in the proper sequence, the defendant’s 
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sentence may not be enhanced under section 12.42(d). Roberson, 420 S.W.3d at 

839–40. If there is no evidence proving that the offenses were committed and 

became final in the proper sequence, then we must reverse the assessment of 

punishment and remand for a new punishment hearing, without conducting any 

harm analysis. See Jordan, 256 S.W.3d at 290–93. However, if a defendant pleads 

true to an enhancement paragraph, that relieves the State of its evidentiary burden 

to prove the enhancement allegations, unless the record affirmatively reflects that 

the enhancements were improper. See Hopkins, 487 S.W.3d at 586.

ii. Analysis 

Here, appellant entered a plea of “not true” to the enhancement paragraphs 

and accordingly, the State was not relieved of its burden to prove the enhancement 

allegations. See Hopkins, 487 S.W.3d at 586. At the punishment hearing, the State 

re-offered all evidence from the guilt/innocence portion of trial and Exhibit 23, 

Stipulation of Evidence. The only evidence admitted regarding the enhancement 

paragraphs was appellant’s stipulation that:

 On December 18, 2006 in the 351st District Court of Harris County,

Texas, in Cause Number 1093428, the Defendant was finally 

convicted of the felony offense of Assault Bodily Injury-Family 

Member.

 On February 10, 2010 in the 339th District Court of Harris County, 

Texas, in Cause Number 1232011, the Defendant was finally 

convicted of the felony offense of Aggravated Assault with a Deadly 

Weapon.

The State argues that it may prove a prior enhancement offense by either a 

defendant’s judicial admission or by his stipulation. During the sentencing hearing, 

the State cited Bryant v. State, 187 S.W.3d 397, 400 (Tex. 2005), in support of its 

argument that the stipulation was sufficient to prove the prior offenses. In Bryant, a 

stipulation was a substitute for evidence and had the effect of relieving one party of 
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the burden of proving the facts stipulated to and barred the other party from 

challenging the truth of the matters covered by the stipulation. Here, appellant 

stipulated that he was finally convicted of the two prior offenses. However, the 

stipulation does not list the requisite sequence in which the prior offenses were 

committed. Although the indictment lists the proper sequencing, appellant did not 

plead true to the indictment. Bryant is therefore inapposite here. The State’s 

reliance on Flowers v. State, 220 S.W.3d 919, 922 (Tex. Crim. App. 2007), fails 

for the same reason articulated above. Furthermore, the issue in Flowers was 

whether a computer printout or functional equivalent of a judgment and sentence 

constituted sufficient proof of a valid, final conviction. Whereas here, the specific 

issue is whether there is sufficient evidence to prove the sequence in which the 

offenses were committed. See Jordan, 256 S.W.3d at 291 (listing the proper 

sequence required to prove the enhancement offenses).

 Although appellant stipulated to the finality of his prior convictions, the 

stipulation fails to mention when the offenses were committed. Under precedent 

from the Court of Criminal Appeals, without any proof as to when appellant 

committed the aggravated-assault-with-a-deadly-weapon offense, we cannot 

presume that he committed this offense after December 18, 2006, simply based on 

the sequence of final convictions. See id. at 289, 293. Therefore, there was no

evidence presented on the sequence in which the prior offenses were committed. 

See Roberson, 420 S.W.3d at 839–40; Jordan, 256 S.W.3d at 289, 293. The 

evidence is insufficient to support a finding of “true” to the enhancement 

paragraphs as a matter of law, and this court must reverse the punishment portion 

of the trial court’s judgment and remand for a new punishment hearing, without 

conducting any harm analysis. Roberson, 420 S.W.3d at 839–40; Jordan, 256 

S.W.3d at 289–93.
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Accordingly, we sustain appellant’s second issue, reverse the punishment 

portion of the trial court’s judgment, and remand to the trial court for a new 

punishment hearing. See Tex. Crim. Proc. Code art. 44.29(b) (West 2015);

Roberson, 420 S.W.3d at 839–40; Jordan, 256 S.W.3d at 289–93. 

III. CONCLUSION

The trial court did not err in admitting the three letters into evidence. 

Because the evidence is legally insufficient to support a finding of “true” to the 

enhancement paragraphs, we reverse the punishment portion of the trial court’s 

judgment and remand for a new punishment hearing. 

 /s/ Marc W. Brown 

 Justice 

Panel consists of Chief Justice Frost, and Justices McCally and Brown. 

Publish — Tex. R. App. P. 47.2(b).