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 291st 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

CLERK
ii

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 with 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 forfeited 

his right to a sufficiency review. ............................................... 7

PRAYER .................................................................................................. 24

CERTIFICATE OF WORD-COUNT COMPLIANCE.............................. 24

CERTIFICATE OF SERVICE .................................................................. 24
iii

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).................................................. 17

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).................................................... 10
iv

Grettenberg v. State, 

790 S.W.2d 613 (Tex. Crim. App. 1990).................................................. 16

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. Crim. 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, 22

Wheat v. State, 

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

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, 19
1

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State of Texas submits this brief in response to the brief of 

Appellant, 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 before 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-offender statute with two 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 pleas 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 Institutional 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.—Dallas May 28, 2015, pet. granted) (mem. op., not 
2

designated for publication). This Court granted Appellant’s petition for 

discretionary review on September 16, 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 

indictment 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 felony 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 

another 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 4th day of January in the 

CRIMINAL DISTRICT COURT NO. 3 of DALLAS County, 

Texas, in cause 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: AGGRAVATED ASSAULT WITH A DEADLEY 

[sic] WEAPON, as charged in the indictment, 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 offense 
3

hereinbefore charged against him, as set forth in the first paragraph 

hereof[.]

(CR: 17). The State did not include the year of Appellant’s conviction for the 

aggravated assault alleged in the notice pleading. 

Contemporaneously with the notice pleading, the State also filed a 

notice of extraneous offenses, 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 “Date 

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).

At the punishment hearing, the State read the enhancement allegations 

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 convictions 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. Okay. 

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 his mother, Rebecca Hopkins, who 

testified about the two aggravated assault convictions that resulted 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 

the 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 

apartment 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 aggravated 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 not required to plead a sequence of the prior convictions

on the face of the indictment. Appellant’s argument that, under Roberson, his 

pleas of true where the pleadings did not allege a sequence required the State to 

present evidence of the sequence is misplaced. In Roberson, the State, on the 

face of the pleadings, alleged a factually-impossible sequence for the prior 

convictions. Here, 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 pleas of true to the allegations proved 

them, and he does not point to any evidence in the record that affirmatively 

reflects 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 became 
7

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

later conviction became final—in making indictment allegations of the 

particular sequence of prior convictions. Our modern practice of notice 

pleading 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 sequence of the two prior convictions. 

ARGUMENT

RESPONSE TO APPELLANT’S 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 with 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 forfeited 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 

implied holding in Roberson v. State that a defendant’s “plea of true [to 
8

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 relieved 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 less 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

As a general rule, a defendant’s plea of true 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 

insufficient 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 [14th Dist.] 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 acknowledges that the first enhancement allegation in the 

indictment clearly alleged that 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 the notice pleading is “not so 

clear,” the State was required, under Roberson v. State, to present evidence of 
10

the sequence, even in the face of his true pleas. (Appellant’s Brief, p. 3). On 

direct appeal, the 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 affirmative 

evidence on the record reflecting that the convictions were improperly used to 

enhance his punishment. 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.” Roberson, 420 S.W.3d at 840. 

Because their purpose is to provide notice, “it 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 offense.” Williams v. State, 980 

S.W.2d 222, 226 (Tex. App.—Houston [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. State, 752 

S.W.2d 126, 129 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d)

(concluding section 12.42(d) does not require the State to 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

allegations. 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 

allegations, the State was not required to plead the sequence of the prior 

convictions. See Jingles, 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 date of the aggravated 

assault the State planned to introduce 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 State 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, this 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 it 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 to support the enhancement 
12

allegations, supports his position that the State was required to put on evidence 

of the sequence of the prior convictions. 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 evidence supported the jury’s finding that the prior convictions 

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, the 

State’s allegations of an August 29, 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 Roberson; they simply amounted to the State making no 

allegation regarding the sequence of the convictions in relation to one another. 

Therefore, a situation is not presented where, due to factually-impossible

enhancement allegations, this Court is called upon to review the record to 

ensure the evidence supported a finding that the prior convictions occurred in 

the statutorily-required sequence.
13

3. Appellant’s pleas of true were sufficient proof of the sequence of the prior 

convictions.

The enhancement allegations were read 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 stated that they 

were, and pled true to them. (RR5: 7-8). Appellant’s pleas of true relieved the 

State of its burden of proof and forfeited his right to challenge the sufficiency of 

the evidence supporting enhancement, even where the enhancement 

paragraphs contained 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. State, No. 05-09-01225-CR, 2011 Tex. App. 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 of 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 sufficient evidence to prove the sequence of the prior convictions.
14

4. No evidence in the record affirmatively reflects that the prior convictions were 

improperly 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 State was not required to do. (Appellant’s Brief p. 9). That, 

however, is not 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 applied the applicable case law when it determined Appellant’s pleas 

of true relieved 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 should 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 enhancement.

As this Court stated in Roberson, “Evidentiary sufficiency is separate 

from allegations and notice.” Roberson, 420 S.W.3d at 840. Under a dueprocess analysis, the issue of whether Appellant’s sentence could be enhanced 

by the prior convictions turns on whether he “received sufficient notice of the 
15

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 

affirmatively reflects he received adequate notice. The indictment and notice 

pleading described the prior convictions, their respective cause numbers, and 

the convicting courts with particularity. He also does not allege that he was 

misled or surprised by the State’s use of these 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 pleas.

This case presents a question for this Honorable Court that begs for 

clarification: Is it true that a State’s pleading does not give adequate notice 

under section 12.42(d) unless it expressly alleges that the defendant’s prior 

convictions occurred in the required sequence? The facts here call upon this 

Court to consider the extent to which the practice of “notice pleading” relieves 

the State of the duty to include “magic words” alleging 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 weapon 
16

findings and the State’s duty to plead these magic words: “and the said defendant 

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.2d 766, 774 (Tex. Crim. App. 1987). A defendant must 

have notice, in some form, that the State intends to pursue the entry of an 

affirmative finding on the use and exhibition of a deadly weapon. Narron v. 

State, 835 S.W.2d 642, 643 (Tex. Crim. App. 1992). Specifically 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 deadliness 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 need 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 amend 

the indictment to add a prior-conviction allegation and the trial court’s order

granting the motion); Luken v. State, 780 S.W.2d 264, 266 (Tex. Crim. App. 

1989) (requiring 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 placing a defendant 

on notice that if the State alleges that he caused another’s death, then he is 

subject to enhanced 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 criminally-negligent homicide case 

was an adequate basis for the trial court to enter an affirmative deadly weapon 

finding in the judgment).
18

As with deadly weapon findings, here, the sequence of the prior 

convictions is self-evident because it is based on historic, 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 defendants 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 different 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 prior 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 pleas of true attached to the State’s pleadings 

which alleged the existence of the prior convictions that were linked to 

Appellant. His true pleas 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 sufficiently 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. Appellant 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 

“true.” When he chose to plead true, he did so knowing the consequences if “it 

[was] shown” by the State 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 

convictions is sufficient even if it is contained in some form other than an 

indictment allegation. There is no variance between Appellant’s true pleas and 

the evidence upon which “it [was] shown” that these admitted priors satisfy 

the requirements of section 12.42(d). Id. Appellant’s true pleas 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 defendant is barred 

from bringing the State to task once again.” Long v. McCotter, 792 F.2d 1338, 

1339 (5th Cir. 1986). Appellant’s pleas 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 aggravated 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. 

In a case where a defendant does not plead true to a prior enhancement 

conviction, to establish a defendant’s conviction of a prior offense, the State 

must prove beyond a reasonable doubt that 1) a prior 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 presumes 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 

ruling and determines whether any rational trier of fact could make the finding 
21

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, Appellant impliedly concedes that 

his pleas of true admitted the prior convictions, and he makes no complaint 

about their finality. (Appellant’s Brief, p. 9). Hence, 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 historical 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 

prove 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 that 
22

he committed 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 Appellant 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 the 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 context of the entire punishment hearing, the 

aggravated assaults that the State questioned Hopkins about clearly were the 

aggravated assaults listed in the enhancement allegations, and her testimony 

proved their sequence. See Tomlin, 722 S.W.2d at 705-06.

Additionally, the trial court could have rationally inferred the 2003 and 

2009 aggravated assaults about which the State questioned Hopkins were the 
23

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 closing 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 rationally 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 the 

indictment. Nothing in the record affirmatively reflects the convictions did not 

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 habitual-offender-enhancement purposes, and 

the convictions were properly used to enhance Appellant’s punishment. This 

Court should overrule Appellant’s ground for review.
24

PRAYER

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) 653-3625

(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 5,023 words in length according to Microsoft 

Word 2010, which was used to prepare the brief, and complies with the wordcount limit in the Texas Rules of Appellate Procedure. See 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 

Lawrence 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