## No. PD -0794- 15
IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

ESSIE D. HOPKINS , Appellant/Petitioner

vs. THE STATE OF TEXAS , Appellee/Respondent

On discretionary review of a decision by the Court of Appeals, Fifth District at Dallas, Texas in Cause No. 05- 14

-00146- CR On appeal from the 291 st

Judicial District Court of Dallas County, Texas in Trial Court Cause No. F13-55764-U


## STATE’S BRIEF

Counsel of Record: Susan Hawk Marisa Elmore Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24037304 Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB- 19 Dallas, Texas 75207-4399 (214) 653-3625 (214) 653-3643 fax marisa.elmore@dallascounty.org Attorneys for the State of Texas PD-0794-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 11/13/2015 12:26:26 PM Accepted 11/13/2015 12:30:52 PM

ABEL ACOSTA CLERKii TABLE OF CONTENTS
INDEX OF AUTHORITIES

................................ ................................ ...... iii STATEMENT OF THE CASE

................................ ................................ .... 1 STATEMENT OF FACTS

................................ ................................ .......... 2 SUMMARY OF ARGUMENT

................................ ................................ ... 6 ARGUMENT

................................ ................................ ............................. 7 RESPONSE TO GROUND FOR REVIEW : The Fifth Court of Appeals ' determination that the State was relieved of its burden to prove the prior convictions in the enhancement allegations by Appellant’s pleas of true does not conflict wit h prior decisions of this Court. The record contains no ev idence affirmatively reflecting that the prior convictions were improperly used to enhance Appellant’s punishment, and Appellant has forfeited his right to a sufficiency review . ................................ ............... 7 PRAYER

................................ ................................ ................................ .. 24 CERTIFICATE OF WORD

- COUNT COMPLIANCE

.............................. 24 CERTIFICATE OF SERVI CE

................................ ................................ .. 2 4iii INDEX OF AUTHORITIES
Cases Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997)

................................ .................... 17 Brumfield v. State, 445 S.W.2d 732 (Tex. Crim. App. 1969)

................................ .................. 21 Childs v. State , No. 05

- 09

- 01225

- CR, 2011 Tex. App. LEXIS 696 (Tex. App.

— Dallas Jan. 31, 2011, pet. ref’d)

................................ ................................ .......... 13 Crumpton v. State, 301 S.W.3d 663 (Tex. Crim. App. 2009)

................................ .................. 1 7 Dinn v. State, 570 S.W.2d 910 (Tex. Crim. App. 1978)

................................ .................. 19 Ex parte Beck , 769 S.W.2d 525 (Tex. Crim. App. 1989)

................................ ....... 16, 17, 18 Ex parte Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1987)

................................ .................. 16 Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006)

................................ .................... 9 Fletcher v. State , 214 S.W.3d 5 (Tex. Crim. App. 2007)

................................ ...................... 20 Flowers v. State , 220 S.W.3d 919 (Tex. Crim. App. 2007)

................................ .................. 20 Freda v. State , 704 S.W.2d 41 (Tex. Crim. App. 1986)

................................ .................... 10iv

Grettenberg v. State, 790 S.W.2d 613 (Tex. Crim. App. 1990)

................................ .................. 1 6 Harvey v. State , 611 S.W.2d 108 (Tex. Crim. App. 1981)

................................ .................. 13 Hopkins v. State, No. 05

- 14

- 00146

- CR, 2015 Tex. App. LEXIS 5468 (Tex. App.

— Dallas May 28, 2015, pet. granted) (mem. op., not designated for publication)

. 2 , 10 Jingles v. State , 752 S.W.2d 126 (Tex. App.

— Houston [14th Dist.] 1987, pet. ref’d)

..... 10, 11 Long v. McCotter

, 792 F.2d 1338 (5th Cir. 1986)

................................ ................................ .. 19 Luken v. State, 780 S.W.2d 264 (Tex. Crim. App. 1989)

................................ .................. 17 McFarland v. State , 928 S.W.2d 482 ( Tex. Crim. App. 1996)

................................ .................. 21 Mikel v. State, 167 S.W.3d 556 (Tex. App.

— Houston [ 14th Dist.] 2005, no pet.)

......... 9, 23 Narron v. State, 835 S.W.2d 642 (Tex. Crim. App. 1992)

................................ .................. 16 Pelache v. State , 324 S.W.3d 568 (Tex. C rim. App. 2010)

................................ .................. 15 Roberson v. State , 420 S.W.3d 832 (Tex. Crim. App. 2013)

.......................... 8, 9, 10, 12, 14, 15 Tomlin v. State , 722 S.W.2d 702 (Tex. Crim. App. 1987)

................................ ............. 21, 2 2 Wheat v. State , 442 S.W.2d 363 (Tex. Crim. App. 1969)

................................ .................. 21v

Williams v. State , 980 S.W. 2d 222 (Tex. App.

— Houston [14th Dist.] 1998, pet. ref’d)

.......... 10 Wilson v. State, 671 S.W.2d 524 (Tex. Crim. App. 1984)

................................ .................. 10
Statute Texas Penal Code Ann. § 12.42 (West Supp. 2014)

............................... 1, 8, 191

TO THE HONORABLE COURT OF CRIMINAL APPEALS: The State of Texas submits this brief in response to the brief of
A ppellant , Essie D. Hopkins

.

STATEMENT OF THE CASE A grand jury indicted Appellant for aggravated robbery with a deadly
weapon , a first

- degree felony . (CR: 14). Appellant pled not guilty b efore a jury , and the jury found him guilty . (RR3: 13; RR4: 53; CR: 37). Appellant elected to have the trial court assess his punishment. (RR4: 53). At the punishment phase of trial, the State sought to enhance Appellant’s punishment under the habitual

- of fender statute with t w o prior aggravated assault convictions

. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2014). Appellant pled true to the two prior convictions . (RR5: 7

- 8 ; CR : 37 ). The trial court accepted Appellant’s plea s of true and found the enhancements to be true ; found that Appellant used or exhibited a firearm, a deadly weapon, during the commission of the offense ; and sentenced him to life imprisonment in the Inst itutional Division of the Texas Department of Criminal Justice. (RR5: 70

- 71; CR: 37). On appeal, the Fifth District Court of Appeals at Dallas affirmed Appellant’s conviction. Hopkins v. State, No. 05

- 14

- 00146

- CR, 2015 Tex. App. LEXIS 5468 (Tex. App.

— Dall as May 28, 2015, pet. granted) (mem. op., not2

designated for publication) . This Court granted Appellant’s petition for discretionary review on September 1 6, 2015.
STATEMENT OF FACTS The State made two prior

- offense allegations to enhance Appellant’ s punishment under the habitual

- offender statute, one in the indictment and one in a separate notice pleading. (CR: 14, 17). The State first alleged in the indictmen t that Appellant had a prior conviction for aggravated assault with a deadly weapon as follows:

And it is further presented to said Court that prior to the commission of the offense or offenses set out above, the defendant was finally convicted of the felo ny offense of AGGRAVATED ASSAULT WITH A DEADLY WEAPON, in the 195TH JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F0362924, on the 29TH day of AUGUST, 2003[.] (CR: 14). The State later alleged in the notice pleading that Appellant had

a nother prior aggravated assault with a deadly weapon conviction as follows:

Prior to the commission of the aforesaid offense by the said ESSIE HOPKINS, to

- wit: on the 4 th day of January in the CRIMINAL DISTRICT COURT NO. 3 of DALLAS County, Texas, in caus e number F09

- 559

- 86 on the docket of said Court, the said ESSIE HOPKINS under the name of ESSIE HOPKINS, was duly and legally convicted in said last named Court of a felony, to

- wit: AGGRAV A TED ASSAULT WITH A DEADLEY [sic] WEAPON, as charged in the indictme nt, upon an indictment then legally pending in said last named Court and of which said Court had jurisdiction; and said conviction was a final conviction and was a conviction for an offense committed by him, the said ESSIE HOPKINS, prior to the commission of the offense3

hereinbefore charged against him, as set forth in the first paragraph hereof[.] (CR: 17). The State did not include the year of Appellant’s conv iction for the aggravated assault alleged in the notice pleading

. Contemporaneously with the no tice pleading, the State also filed a notice of extraneous o ffenses, which provided Appellant with notice that, during either guilt/innocence or punishment, the State might introduce his extraneous offense of “Aggravated Assault Deadly Weapon , ” with a “Dat e Committed (on or about) June 7, 2009, Convicted January 4, 2010, Dallas County, Texas,” as well as his “Aggravated Assault Deadly Weapon,” with a “Date Committed (on or about) January 2, 2003, Convicted August 29, 2003, Dallas County, Texas.” (CR: 18).
A t the punishment hearing, the State read the enhancement allegatio ns aloud, and Appellant pled true to them . (RR5: 7

- 8). In response to questioning by the trial court, Appellant agreed that he had been to the “pen” before on the two prior felony conviction s listed in the enhancements :

THE COURT: Okay. What I’m asking you is the two prior felony convictions, okay? [APPELLANT]: The other two? THE COURT: When you went to the pen before. [APPELLANT]: Oh, yeah.4 THE COURT: That’s what I’m asking you about. O kay. Are those two prior felony convictions true or not true? [APPELLANT]: True. (RR5: 8). The State then presented evidence of two additional extraneous offenses committed by Appellant

— an aggravated robbery in February 2013, and an aggravated robbery in March 2013. (RR5: 12

- 30; 32

- 39; CR: 22). The State did not offer penitentiary packets to prove the prior convictions. Appellant presented the testimony of hi s mother, Rebecca Hopkins, who testified about the two aggravated assault convictions that resu lted in Appellant’s two trips to the penitentiary, one for a 2003 aggravated assault and one for a 2009 aggravated assault. (RR5: 49

- 53, 56

- 57, 59

- 60). She testified that

t he first time Appellant went to the penitentiary was for the 2003 aggravated assault conviction. (RR5: 51, 58). He was initially granted probation for the offense but was eventually sent to the penitentiary for five years . (RR5: 51, 58). Hopkins testified about Appellant ’s second stint in the penitentiary , for the 2009 aggravated assault , as follows:

[THE STATE]: ... Do you know what happened in the second case in 2009? [HOPKINS]: Second case? [THE STATE]: The second case where [Appellant] went to the penitentiary?5 [HOPKINS]: Oh, him and a boy got into it over there by where we live. [THE STATE]: Okay. [HOPKINS]: That’s when he shot at him or something like that.

... [THE STATE]: Okay. But you do know it was an aggravated assault charge as well? [HOPKINS]: Uh

- huh. [THE STATE]: And you also know it involved a firearm as well? [ HOPKINS]: Yeah. [THE STATE]: Okay. And you said that happened over close to where we live[?] Do you know what apartment complex that was? [HOPKINS]: Huh

- uh. All I know, it was behind Texaco.

... [THE STATE]: Ma’am if you saw a picture of that apartm ent complex, would you recognize it as the one where that offense happened? [State shows witness Exhibit 1]: Does that look familiar to you at all? [HOPKINS]: Yeah, that’s them.

...6 [THE STATE]: ... That’s the same apartment complex where this 2009 aggra vated assault happened? [HOPKINS]: Yeah, because that’s what the officer had told me. (RR5: 56

- 61). The State did not offer evidence of any other aggravated assaults or other extraneous offenses committed by Appellant.

SUMMARY OF ARGUMENT The State was n ot required to plead a sequence of the prior convictio ns on the face of the indictment . Appellant’s argument that , under Rober son , his pleas of true where the pleadings did not allege a sequence required the State to present evidence of the sequence is mis placed. In Rober son , the State, on the face of the pleadings, alleged a factually

- impossible sequence for the prior convictions. H ere, the State’s pleadings contained a simple clerical omission that did not create a factually

- impossible sequence; instead, the pleadings simply did not allege a sequence at all

. Appellant forfeited his right to complain about the sufficiency of the evidence to prove the sequence of the enhancement allegations because his ple as of true to the allegations proved them, and he doe s not point to any evidence in the record that affirmatively reflect s the prior offenses did not occur in the statutorily

- required sequence

. Moreover, the State urges this Court to hold that the State is not required to plead hyper

- technical “magic words”

— that the first conviction became7

final, then the offense leading to a later conviction was committed, then th e later conviction became final

— in making indictment allegations of the particul ar sequence of prior convictions . Our modern practice of notice pl eading should allow the State to notify the accused of the consequences of his committing sequential prior convictions in some other form . Finally, a rational trial court could have found that the State presented legally sufficient evidence to prove the se quence of the two prior convictions.
ARGUMENT
RESPONSE TO APPELLAN T’S GROUND FOR REVIE W
T he Fifth Court of Appeals ’ determination that the State was relieved of its burden to prove the prior convictions in the enhancement all egations by Appellant’s pleas of true does not conflict wit h prior decisions of this Court. The record contains no evidence affirmatively reflecting that the prior convictions were improperly used to enhance Appellant’s punishment, and Appellant has forfei ted his right to a sufficiency review . In his petition for discretionary review, Appellant contends that the Fifth Court of Appeals has decided an important question of law that conflicts with the decisions of this Court

. Appellant argues that the State ’s omission of the
year of the prior conviction alleged in the notice pleading rendered its chronological relationship to the prior conviction alleged in the indictment or to the charged offense “not so clear

. ” (Appellant’s Brief , p. 3). Hence, under an im plied holding in Rober son v. State that a defendant’s “plea of true [to8

enhancement paragraphs], standing alone, is not sufficient evidence to prove the sequence of the enhancement allegations,” the Fifth Court incorrectly determined that the State was rel ieved of its burden of proving the sequence of his prior convictions even though he pled true to the allegations

. See Roberson v.
State , 420 S.W.3d 832, 838 (Tex. Crim. App. 2013)

. (Appellant’s Brief , p. 7). He concludes that the evidence is insufficient to prove the enhancement allegations. He is incorrect.
1. Requirements of the habitual

- offender statute Section 12 .42(d) of the Texas Penal Code provides that a defendant’s punishment may be enhanced if:

[I]t is shown on the trial of a felony offense other than a state jail felony . . . 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 in the Texas Department of Criminal Justice for life, or for any term not more than 99 years or les s than 25 years . . . . Tex. Penal Code Ann. § 12.42(d) . Thus, the chronological sequence of events to be proved is as follows: (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 committed the offense for which he presently stands accused. Jordan v. State , 256 S.W.3d 268, 290

- 91 (Tex. Crim. App. 2008)

.9

A s a gene ral rule , a defendant’s plea of tru e to an enhancement paragraph relieves the State of its burden to prove a prior conviction alleged for enhancement and forfeits the defendant’s right to appeal the sufficiency of the evidence to prove the prior conviction

. Roberson, 420 S.W.3d at 838

. However, there is a narrow exception to this rule. If the record “affirmatively reflects” that a prior conviction was improper

— for example, the conviction did not occur in the sequence alleged by the indictment

— then the evidence is insuf ficient to support the habitual

- offender enhancement even if the defendant pled true to the enhancement. Id. (citing Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006 ) ); Mikel v. State, 167 S.W.3d 556, 559 (Tex. App.

— Houston [14 th Di st.] 2005, no pet.) (holding evidence was insufficient to prove the second enhancement paragraph where the evidence affirmatively reflected that it was factually impossible for the defendant to have committed the first prior offense after the conviction for the second prior offense was final ).
2. The State was not required to plead the sequence of Appellant’s prior convictions

. Appellant ackno wledges that the first enhancement allegation in the indictment clearly alleged th at he was convicted of a prior aggravated assault

on August 29, 2003. (Appellant’s Brief, p. 3). He argues, however, that, because the sequence of the second allegation in th e notice pleading is “not so clear, ” the State was required , under Roberson v. State , to present evidence of10

the sequence, even in the face of his true pleas. (Appellant’s B rief, p. 3 ). On direct appeal, t he Fifth Court of Appeals, citing Roberson v. State , held that the enhancement paragraphs pled sequential prior convictions, and Appellant, who pled true to the enhancements, had not identified any affirmativ e evidence on the record reflecting that the convictions were improperly used to enhance his punish ment

. Hopkins , 2015 Tex. App. LEXIS 5468, at *15

- 16.

“ 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.” Roberso n , 420 S.W.3d at 840. Because their purpose is to provide notice, “ i t is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offe nse.” Williams v. State , 980 S.W.2d 222, 226 (Tex. App.

— Hou ston [14th Dist.] 1998, pet. ref’ d) (quoting Freda v. State , 704 S.W.2d 41, 42 (Tex. Crim. App. 1986) ). The State was not required to plead the sequence of the prior convictions. See Jingles v. St ate , 752 S.W.2d 126, 129 (Tex. App.

— Houston [14 th Dist.] 1987, pet. ref’d) (concluding section 12.42(d) does not require the State t o allege sequentiality in the pleadings). Pleas of true to enhancement allegations at the punishment phase of trial constitute evidence and sufficient proof to support such allegation s
. Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984)

.11

Regardless of Appellant’s complaint about the “not so clear” sequential allegation s , the State was not required to plead the sequence of the prior convictions. See Jingl

es, 752 S.W.2d at 129. The State obviously made a clerical error by omitting the year of the January 4 aggravated assault conviction in the notice pleading

. The record reflects that, contemporaneously with the notice pleading it filed on December 11, 2013 , the State also filed a notice of extraneous offenses with the district clerk and served it on Appellant. (CR: 18). The notice of extraneous offenses included the full dat e of the aggravated assault the State planned to intr o duce evidence of at trial as occurring on or about June 7, 2009, with a final conviction date of January 4, 2010

. (CR: 18). Although the State alleged Appellant was finally convicted of the January 4 aggravated assault prior to the indicted offense, the St ate inadvertently omitted the year of the conviction, and, hence, it alleged no sequence in relation to the prior conviction listed in the indictment. At most, t hi s obvious clerical omission amounted to the State making no allegation of the sequence of the convictions in relation to one another

. Even if the State had included the year, neither allegation makes reference to the other , only to the indicted offense, so the State made no sequential allegations, which i t was not required to do. Appellant argues that Roberson , the case relied upon by the Fifth Court in holding his pleas of true were sufficient evidence t o support the enhancement12

allegations, supports his position that the State was required to put on evidence of the sequence of the prior convictio ns . In Roberson , the State also sought to enhance the defendant ’s conviction with two prior convictions; however, the indictment , on its face, pled a factually

- impossible sequence of prior convictions, which would have been impossible to prove (and hence, improperly used to enhance punishment) regardless of the defendant’s pleas of

true

. Roberson , 420 S.W.3d at 836. Thus , this Court examined the record to determine if the e vidence supported the jury’s finding that the prior c onvictions occurred in the statutorily required sequence, and determined that the evidence was sufficient to support the finding

. Id. at 841. Roberson , however, is distinguishable from the case at bar

. Here, t he State’s alle gation s of an August 2 9 , 2003 conviction that occurred prior to the indicted offense and a January 4 conviction that occurred prior to the indicted offense did not, on their face , create a factually

- impossible prior

- conviction
sequence as in Rober

son ; they simply amounted to the State making no allegation regarding the sequence of the convict ions in relation to one another. Therefore, a situation is not presented where , due to fac tually

- im possible enhancement allegations, this Court is called up on to review the record to ensure the evidence supported a finding that the prior convicti ons occurred in the statutorily

- required sequence

.13

3. Appellant’s pleas of true were sufficient proof of the se quence of the prior convictions

. The enhancement allegations were rea d aloud at trial as they were alleged in the indictment and the notice pleading, and the trial court clarified with Appellant that they were the two aggravated assault convictions for which he had served time in the penitentiary. (RR5: 7

- 8). Appellant stat ed that they were, and pled true to them. (RR5: 7

- 8). Appellant’s plea s of true relieve d the State of its burden of proof and forfeited his right to challenge the sufficiency of the evidence supporting enhancement, even whe re the enhancement paragraph s con tain ed no allegations as to the sequence of the prior convictions. See, e.g., Harvey v. State , 611 S.W.2d 108, 111 (Tex. Crim. App. 1981) ; see also Childs v. Sta te , No. 05

- 09

- 01225

- CR, 2011 Tex. A pp. LEXIS 696 , at *12

- 13 (Tex. App.

— Dallas Jan. 31, 2011, pet. ref’d) (mem. op., not designated for publication) (holding Childs forfeited his right to complain about the sufficiency of the evidence to prove the sequence o f his prior convictions where the pleadings did not allege the sequence, he pled true to the enhancements, and he did not point to any affirmative evidence in the record showing the enhancements were improper). Here, Appellant’s pleas of true were sufficie nt evidence to prove the sequence of the prior convictions

.14

4. No evidence in the record affirmatively reflects that the prior convictions were improp erly used to enhance punishment

. Appellant does not point to any evidence in the record that affirmatively reflects the prior convictions did not occur in the statutorily

- required sequence. Instead, he only contends that the record “affirmatively establishes that the State did not prove” the sequence of his prior convictions , which, as discussed above , the Sta te was not required to do

. ( Appellant’s Brief p. 9). That, however, is no t the standard for calling into play the narrow exception for a sufficiency review

. See Roberson , 420 S.W.3d at 838

. Hence, the Fifth Court properly ap plied the applicable case law when it determined Appellant’s pleas of true reli e ved the State of the burden to prove the prior convictions, and nothing in the record established the convictions were improperly used for enhancement purposes. This Court shou ld overrule Appellant’s ground for review and affirm the judgment of the Fifth Court of Appeals on this basis.
5. This Court should hold the State is not required to plead “magic words” alleging the sequence of prior convictions to support punishment enhancem ent

. As this Court stated in Roberson , “Evidentiary sufficiency is separate from allegations and notice.” Roberson , 420 S.W.3d at 840. Under a due

process analysis, t he issue of whether Appellant’s sentence could be enhance d by the prior convictions turns on whether he “received sufficient notice of the15

enhancements so that he had an opportunity to prepare a defense to them.” Pelache v. State , 324 S.W.3d 568, 577 (Tex. Crim. App. 2010)

. Appellant does not claim he did not receive notice of the State’s intent to enhance his punishment with the two prior convictions. Indeed, the record affir matively reflects he received adequate notice. T he indictment and notice pleading described the prior convictions , their respective cause numbers, and the convi cting courts with particularity. He also does not allege that he was misled or surprised by the State’s use of t hese prior convictions to enhance his punishment . His mere allegation that the pleadings contained a clerical omission rendering the sequence of the alleged convictions vague or unpled , in the face of his true pleas, does not and should not entitle him to a sufficiency review or destroy the effect of his plea s
. This case presents a question for this Honorable Court that begs for clarification : I s it true that a State’s pleading do es not give adequate notice under section 12.42(d) unless it e xpressly alleges that the defendant’s prior convictions occurred in the required sequence? The facts here call upon this Court to consider th e extent to which the practice o f “notice pleading” relieves the State of the duty to include “ magic words ” allegin g the sequence of prior convictions in its pleadings. To answer the question, the Court might compare the present situation to the development in the law concerning deadly weapon16

findings and the State’s duty to plead these magic words: “and the said defen dant used and exhibited a deadly weapon during the commission of the said offense.” This Court has found that article 1 , section 19 of the Texas Constitution requires notice and hearing on the issue of a deadly weapon finding. Ex parte Patterson, 740 S.W.2 d 766, 774 (Tex. Crim. App. 1987)

. A defendant must have notice, in some form , that the State inten ds to pursue the entry of an affirmative findin g on the use and exhibition of a deadly weapon. Narron v. State, 835 S.W.2d 642, 643 (Tex. Crim. App. 1992) . Specificall y pleading use and exhibition of a deadly weapon in an indictment gives a defendant notice of the issue and satisfies due course of law under article 1, section 19. Patterson, 740 S.W.2d at 776

. Later, in Ex parte Beck , 769 S.W.2d 525, 528 (Tex. Crim. App. 1989) , this Court held that the murder

- indictment allegation that Beck caused the victim ’s death by shooting him with a gun sufficiently notified Beck that the dead liness of the gun would be an issue at trial. Ex parte Beck overruled Ex parte Patterson to the extent it could be interpreted to conflict with that holding. Beck , 769 S.W.2d at 528. Following Ex parte Beck, this Court held that notice of the State’s intent to pursue an affirmative deadly weapon finding is sufficient even if it is contained in an abandoned portion of an indictment charging attempted capital murder. Grettenberg v. State, 790 S.W.2d 613 , 615 (Tex. Crim. App. 1990 )

.17

As with deadly weapon findings, prior convictions used as enhancements must be pled in some form, but they n eed not be pled in the indictment. See Brooks v. State , 957 S.W.2d 30, 32 ( Tex. Crim. App. 1997 ) (holding that while prior convictions used as enhancements must be pled in some form, they are not required to be pled in the indictment, and the requisite notice was conveyed to the appellant by the State’s motion for leave to amen d the indictment to add a prior

- conviction allegat ion and the trial court’s order granting the motion ); Luken v. State, 780 S.W.2d 264, 266 ( Tex. Crim. App.
1989 ) (requirin g that the notice be in writing). In the present case, section 12.42(d) already gives a defendant notice that if the State chooses sequential prior convictions to show at his trial, then he will be subject to enhanced punishment. This is similar to placin g a defendant on notice that if the State alleges that he caused another’s death, then he is subject to enhance d punishment because it is self

- evident that he used a deadly weapon, and therefore, a deadly weapon finding may be entered in the judgment. See, e.g., Crumpton v. State, 301 S.W.3d 663, 664

- 65 (Tex. Crim. App. 2009) (holding the jury’s guilty verdict in a c riminally

- negligent homicide case was an adequate basis fo r the trial court to enter an affirmative deadly weapon finding in the judgment).18

As with deadly weapon findings, here, the sequence of the pr ior convictions is self

- evident because it is based on h istoric , immutable facts that have already occurred. (In this case, the State’s notice of extraneous offenses , which listed the year of the January 4 aggravated assault conviction, reminded Appellant of this sequence.) The enhancement statute puts all defe ndants on notice of the consequence of a showing of sequential prior convictions . Thus, the State should not have to use magic words alleging that the defendant’s prior convictions fall into a sequence to support enhancement of punishment. This is no diffe rent than the present practice that allows a deadly weapon finding to be supported by alleging and showing that a defendant caused another’s death. See Beck, 769 S.W.2d at 528. The State should give a defendant notice of the pri or convictions the State intends to use for enhancement, and if the notice shows they are sequential, the defendant has been informed by statute of the punishment consequences. Here, Appellant’s plea s of true attache d to the State’s pleadings which all eged the existence of the prior convictions that were linked to Appellant. His true plea s alleviated the State’s burden to prove these alleged facts and he waived sufficiency review of the evidence to support those prior convictions

.19

In addition, the State su fficiently notified Appellant that the sequence in which these prior final convictions occurred would be a fact in issue at his punishment hearing and that the State would show the requirements of section 12.42(d) were satisfied for enhancement purposes. A ppellant was represented by counsel, and it should be assumed that he understood the consequences of his strategic choices. He could have chosen to plead either “not true” or “t rue. ” When he chose to plead t rue, he did so knowing the consequences i f “it [ w as ] shown” by the S tate that the prior convictions were sequential under the provisions of section 12.42(d) . Tex. Penal Code Ann. § 12.42(d)

. The State’s notice of intent to pursue enhancement of punishment for the sequential prior

co nvictions is sufficient even if it is contained in some form other than an indictment allegation. There is no variance between Appellant’s t rue plea s and the evidence upon which “it [ was ] shown” that these admitted prio rs satisfy the requirements of sectio n 12.42(d). Id. Appellant’s true plea s should extend to the essential sequential facts which were not alleged in the State’s pleadings but of which Appellant had notice. His true pleas relieve the State of the duty to prove the facts alleged in the charge. See Dinn v. State, 570 S.W.2d 910, 915 (Tex. Crim. App. 1978)

. After such a plea is entered, “ the def endant is barred from bringing the State to task once again. ” Long v. McCotter , 792 F. 2d 1338 , 1339 (5th Cir. 1986) . Appellant’s plea s of true waived a sufficiency review.20

6. The State proved the statutorily

- required sequence of the prior convictions beyond a reasonable doubt

. In his brief, Appellant implies that his pleas of true proved he was the person convicted of the two prior aggra vated assaults , just not the sequence. This seemingly amounts to a third type of plea not authorized by Texas law

— a plea of “partly true.” What standard should an appellate court use to guide it in a review of the evidence to support such a plea? Even if this Court were to determine that, in the absence of sequential allegations , Appellant’s plea of true amounted to no plea , or required the State to prove the sequence , the evidence indeed proved the prior convictions.
I n a case where a defendant does not plead true to a prior enhancement conviction, t o establish a defendant ’ s conviction of a prior offense, the State must prove beyond a reasonable doubt that 1) a prio r final conviction exists, and 2) the defendant is linked to that conviction. Flowers v. State , 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) . Once the State provides prima facie evidence of an enhancement conviction, the reviewing court presume s that the conviction is final when faced with a silent record regarding finality. Fletcher v.
State , 214 S.W.3d 5, 8 (Tex. Crim. App. 2007)

. In addressing a complaint about the legal sufficiency of the evidence at the punishment phase of trial, a reviewing court views the evidence in a light most favorable to the trial court’s rulin g and determines whether any rational trier of fact could make the finding21

beyond a reasonable doubt. McFarland v. State , 928 S.W.2d 482, 496 (Tex. Crim. App. 1996)

. Here, the only finding at issue, according to Appellant, is the sequence of the prior convictions. The record affirmatively reflects Appellant pled true to both enhancement allegations. In his brief, Appel lant impliedly concedes that his pleas of true admitted the prior convictions , and he makes no complaint about their finality. (App ellant’s Brief, p. 9). H ence, the State proved the prior convictions existed and were linked to Appellant. Despite Appellant’ s contention that the State presented no evidence as to the sequence of the priors,

a review of the record shows that a rational trial court indeed could have found the State proved the statutorily

- required sequence. The record evidence proved the historic al context for the two prior aggravated assaults. Although the State did not offer penitentiary packets proving the sequence of the convictions, the use of pen packets and related testimony is only one way of proving prior convictions; the State may also
p rove them through the testimony of witnesses. See Wheat v. State , 442 S.W.2d 363, 367 (Tex. Crim. App. 1969) ; Brumfield v. State, 445 S.W.2d 732, 740 (Tex. Crim. App. 1969) ; see also Tomlin v. State , 722 S.W.2d 702, 706 (Tex. Crim. App. 1987) (although the pen packets did not contain an offense date for the defendant’s second felony offense, testimony of the defendant confirmed that22

he committe d the second felony offense after the first felony conviction was final). Appellant agreed he had been to the penitentiary twice for the two aggravated assaults used to enhance his punishment. (RR5: 7

- 8). Appellant’s mother, Hopkins , testified that Appell ant had been to the penitentiary twice for aggravated assaults, once on a 2003 charge and once on a 2009 charge. (RR5: 49

- 53, 56

- 67, 59

- 60). Her testimony implied that the 2009 aggravated assault occurred after Appellant had been released from prison on th e 2003 aggravated assault conviction. (RR5: 56

- 61). Hopkins’s testimony proved Appellant was incarcerated for five years on the 2003 aggravated assault. (RR5: 58). Hopkins testified that, after Appellant went to the penitentiary for five years, he then

was sent to the penitentiary after he committed a 2009 aggravated assault “behind Texaco.” (RR5: 59). Although the State did not specifically mention to Hopkins the cause numbers of Appellant’s 2003 and 2009 aggravated assault convictions , viewed in the conte xt of the entire punishment hearing, the aggravated assaults that the State questioned Hopkins about clearly were the aggravated ass aults listed in the enhancement allegations , and her testimony proved their sequence

. See Tomlin, 722 S.W.2d at 70 5

- 06

. Additionally, t he trial court could have rationally inferred the 2003 and 2009 aggravated assaults about which the State questioned Hopkins were the23

two aggravated assaults used to enhance Appellant’s punishment. The State offered evidence of two extraneous offenses of aggravated robbery and the only additional offenses mentioned were the 2003 and 2009 aggravated assault convictions the State used to enhance Appellant’s punishment. The State also argued , without objection, at closi ng that Appellant had been in the penitentiary for his first aggravated assault conviction , got out, committed the second aggravated assault in 2009 , and was again sent to the penitentiary

. (RR5: 69

- 70). From this evidence, the trial court could have rati onally concluded that Appellant committed the January 4 aggravated assault and was convicted for it after he was finally convicted of the 2003 aggravated assault alleged in th e indictment

. Nothing in the record affirmatively reflects the convictions did no t occur in the statutorily

- required sequence. Cf. Mikel , 167 S.W.3d at 560 (holding no rational trier of fact could have found the second enhancement paragraph to be true where the evidence affirmatively reflected it did not occur in the proper sequence ). Hence , the evidence is sufficient to prove the statutorily

- required sequence for habitua l

- offender

- enhancement purposes , and the convictions were properly used to enhance Appellant’s punishment

. This Court should overrule Appellant’s ground for review.24 PRA YER The State prays that this Honorable Court will affirm the judgment of the Fifth Court of Appeals

. Respectfully submitted, /s/ Marisa Elmore Susan Hawk Marisa Elmore Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24037304 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB

- 19 Dallas, Texas 75207

- 4399 (214) 653

- 362 5 (214) 653

- 3643 fax
CERTIFICATE OF WORD
- COUNT COMPLIANCE I hereby certify that the foregoing brief, including all contents except for the sections of the brief permitted to be excluded by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure, is 5,0 23 words in length according to Microsoft Word 2010, which was used to prepare the brief, and complies with the word

count limit in the Te xas Rules of Appellate Procedure

. S e e Tex. R. App. P. 9.4(i). /s/ Marisa Elmore Marisa Elmore
CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on La wrence B. Mitchell , counsel for Appellant, by electronic communication through eFileTexas.gov to judge.mitchell@gmail.com, on November 13 , 2015. /s/ Marisa Elmore Marisa Elmore