Opinion issued June 18, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00387-CR

———————————

MICHAEL DIAZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1391077

MEMORANDUM OPINION

Appellant Michael Diaz was charged with burglary of a habitation, with two 

paragraphs alleging sequential conviction of two previous felonies enhancing the 

punishment range to that of a habitual offender. Diaz waived his right to a trial by 

jury and entered a plea of not guilty. After trial to the bench, the trial court found 
2

Diaz guilty of burglary. Diaz pleaded true to the habitual offender enhancements, 

and the trial court found the enhancements true and assessed his punishment at 30 

years’ confinement. On appeal, Diaz argues that the evidence is insufficient to 

prove that the second enhancement paragraph was true, and thus habitual offender 

enhancement was improper and he is entitled to a new punishment hearing. We 

agree. We affirm Diaz’s conviction, but reverse the portion of the judgment 

assessing punishment and remand for a new punishment hearing. 

Background

On June 10, 2013, complainants Delores and Rudy Castillo left their house 

for work around 7:00 a.m. At 8:15 a.m., Delores received a phone call from their 

home alarm security company informing her that the security system had detected 

motion in their house. She called Rudy, who drove to the house and found that 

police had already arrived. The back door of the house had been kicked in, and 

various items had been taken, including a 55-inch television, jewelry, and a Bible. 

Lieutenant J. Pedraza of the Harris County Constable’s Office Precinct 6 

was dispatched around noon to a pawn shop. A pawn shop employee had called 

the police because two men who were trying to pawn some items were behaving 

suspiciously. Pedraza located the men’s truck and found Anthony Sustaita asleep 

in the passenger seat. Pedraza observed a keyboard, televisions, and a tall jewelry 

box in the truck. 
3

Pedraza asked Sustaita about the items, and Sustaita told Pedraza that he was 

waiting for his boss who was inside the pawn shop. Pedraza went inside and found 

Diaz, who gave Pedraza a fake name. Pedraza detained Diaz and, after several 

Houston Police Department officers arrived, the officers searched the truck and 

found, among other things, the Bible that had been taken from the Castillos’ house 

that morning. 

Officer M. Hinojosa of the Houston Police Department took Diaz’s custodial 

statement. Diaz was given his statutory warnings, waived his rights, and agreed to 

talk to Hinojosa. Diaz confessed to burglarizing the Castillos’ house in a recorded

statement. 

After the trial court found Diaz guilty of the burglary, Diaz pleaded true to 

the indictment’s two enhancement paragraphs:

Before the commission of the offense alleged above, (hereafter styled 

the primary offense), on MARCH 26th, 2008, in Cause No. 1154681 

in the 232ND DISTRICT COURT of HARRIS County, Texas, the 

defendant was convicted of the felony of POSSESSION OF A 

CONTROLLED SUBSTANCE.

Before the commission of the primary offense and after the conviction 

in Cause No. 1154681 was final, the Defendant committed the felony 

of BURGLARY OF A HABITATION and was finally convicted of 

that offense on JUNE 11, 2009, in Cause No. 1174687, in the 232ND 

DISTRICT COURT of HARRIS County, Texas. 
4

The trial court admitted Diaz’s signed stipulation of evidence and copies of the 

judgments reflecting the two prior convictions.1 The trial court found the 

enhancements true and assessed punishment at 30 years’ confinement.

Discussion

In his sole issue on appeal, Diaz argues that he is entitled to a new 

punishment hearing because the evidence does not support the trial court’s finding 

of true regarding the second enhancement paragraph.

A. Standard of Review

A defendant may challenge the legal sufficiency of the evidence supporting 

a finding that an enhancement paragraph is true, even if the appellant pleaded true 

to the enhancement at the punishment hearing. See Jordan v. State, 256 S.W.3d 

286, 292 (Tex. Crim. App. 2008) (finding that enhancement paragraph is true is 

subject to legal sufficiency review); Mikel v. State, 167 S.W.3d 556, 560 (Tex. 

App.—Houston [14th Dist.] 2005, no pet.) (appellant could challenge sufficiency 

of evidence supporting finding that enhancement paragraph was true despite plea 

of true to paragraph at punishment hearing). In reviewing such a finding, 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 

 1 Diaz also stipulated to the commission of a third felony and two state jail felonies, 

and judgments reflecting these convictions were also admitted.
5

doubt. Mikel, 167 S.W.3d at 560 (citing McFarland v. State, 928 S.W.2d 482, 496 

(Tex. Crim. App. 1996)).

B. Applicable Law

The primary offense in this case, burglary of a habitation, is a second degree 

felony. See TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011) (burglary of a 

habitation is a second degree felony). A second degree felony is punishable by a 

prison term of 2 to 20 years. See id. § 12.33(a) (West 2011). A second degree 

felony may be enhanced and punished as a first degree felony, with a prison term 

of 5 to 99 years or life, if it is shown at trial that the defendant has been previously 

finally convicted of a felony other than a state jail felony. See id. § 12.32(a) (West 

2011) (first degree felony is punishable by imprisonment for 5 to 99 years or life), 

§ 12.42(b) (West 2011) (second degree felony is punishable as first degree felony 

if it is shown at trial that defendant has been previously finally convicted of a 

felony other than a state jail felony). But if a non-state jail felony defendant has 

previously been finally convicted of two non-state jail felonies, and the second 

conviction is for an offense that was committed after the first conviction became 

final, then the Texas Penal Code provides that the defendant may be punished as a 

habitual offender. See id. § 12.42(d) (West 2011). In this case, the range of 

punishment is enhanced to 25 to 99 years or life in prison. Id. To support habitual 

offender enhancement, “‘[t]he [chronological] sequence of events must be proved 
6

as follows: (1) the first conviction becomes final; (2) the offense leading to a later

conviction is committed; (3) the later conviction becomes final; (4) the offense for 

which defendant presently stands accused is committed.’” Jordan, 256 S.W.3d at 

290–91 (quoting Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987)). 

Where “the record affirmatively reflects that [an offense] should not have 

been used to enhance [the] punishment range to that of an habitual offender 

because the offense did not occur in the sequence alleged by the indictment,” the 

evidence is insufficient to support the habitual offender enhancement even if the 

appellant pleaded true to the enhancement. Mikel, 167 S.W.3d at 559–60 (citing 

Cruz v. State, No. 01–00–00463–CR, 2001 WL 1168273, at *1 (Tex. App.—

Houston [1st Dist.] Oct. 4, 2001, no pet.) (not designated for publication)). 

The State bears the burden of proving beyond a reasonable doubt that a 

defendant’s second previous felony conviction was committed after the 

defendant’s first previous felony conviction became final. Jordan, 256 S.W.3d at 

291. Where the State fails to meet this burden, “[a] harmless error analysis should 

not be undertaken” and the case should be remanded for a new punishment 

hearing. Id. (citing and quoting Russell v. State, 790 S.W.2d 655, 656 (Tex. Crim.

App. 1990)); see also Mikel, 167 S.W.3d at 560 (holding harm analysis 

inappropriate where evidence is insufficient to support findings of true to habitual 

offender enhancements). This is so because “there is no way to quantify what 
7

impact the unsupported finding of true had on the [factfinder’s] normative 

sentencing function,” and thus, “any attempt to calculate [the impact] would 

necessarily entail pure speculation.” Jordan, 256 S.W.3d at 293. “Under these 

circumstances, the State’s failure to meet its burden of proof, even if subjected to a 

harm analysis, can never be deemed harmless.” Id.

C. Analysis

Diaz asserts, and the State concedes, that the record affirmatively reflects 

that Diaz committed the offense alleged in the second enhancement paragraph 

before the conviction for the offense alleged in the first enhancement paragraph 

became final. Diaz was convicted of the first felony enhancement in Cause No. 

1154681 on March 26, 2008, according to the judgment that was admitted into 

evidence at the punishment hearing. The second enhancement paragraph alleged:

Before the commission of the primary offense and after the conviction 

in Cause No. 1154681 was final, the Defendant committed the felony 

of BURGLARY OF A HABITATION and was finally convicted of 

that offense on JUNE 11, 2009, in Cause No. 1174687, in the 232ND 

DISTRICT COURT of HARRIS County, Texas. 

But according to the judgment in Cause No. 1174687, which was also admitted 

into evidence during the punishment hearing, the offense was actually committed 

on July 8, 2007, over six months before Diaz was convicted of the offense in Cause 

No. 1154681. Thus, the offense in Cause No. 1174687 was not committed “after 

the conviction in Cause No. 1154681 was final.” Accordingly, “the record 
8

affirmatively reflects that [the second felony offense alleged] should not have been 

used to enhance [the] punishment range to that of an habitual offender because the 

offense did not occur in the sequence alleged by the indictment.” Mikel, 167 

S.W.3d at 559.

Diaz and the State agree that the Court of Criminal Appeals has held that 

“[a] harmless error analysis should not be undertaken” where, as here, the State 

fails to meet its burden of showing that a defendant is eligible for habitual offender 

enhancement. Jordan, 256 S.W.3d at 291 (citing and quoting Russell, 790 S.W.3d 

at 656); see also Mikel, 167 S.W.3d at 560 (holding that harm analysis is 

inappropriate where record shows that second enhancement paragraph should not 

have been used to enhance punishment to habitual offender range). This is because 

the State’s failure to meet its burden “can never be deemed harmless.” Jordan, 

256 S.W.3d at 293. The State concedes that we are bound by this precedent, but

complains that this rule results in the waste of judicial resources where, as here, 

there is evidence in the record that the appellant has committed other felonies that 

could have properly been used to enhance the punishment range to that of a 

habitual offender. 

Here, a judgment admitted into evidence during the punishment hearing 

shows that Diaz committed a third non-state jail felony in 2010 and was convicted

of that charge that same year. Thus, the State could have properly enhanced the 
9

punishment range to that of a habitual offender if it had alleged the 2010 felony as 

the second enhancement offense. 

The State argues that if Diaz had raised this issue at trial, it could have 

moved to amend the enhancement paragraphs to allege the proper enhancements. 

See Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010) (holding that 

State’s motion to enhance punishment filed two days before punishment phase of 

trial gave sufficient notice of enhancement and did not violate due process where 

defendant did not request continuance, appear surprised by prior conviction 

allegations, or argue that he was unprepared to defend against allegations); 

Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (“[W]hen a 

defendant has no defense to the enhancement allegation and has not suggested the 

need for a continuance in order to prepare one, notice given at the beginning of the 

punishment phase satisfies the federal constitution.”). The State also notes that 

under Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013), if Diaz raised 

this claim in a writ of habeas corpus instead of on direct appeal, the Court of 

Criminal Appeals would deny relief because he would be unable to show harm 

sufficient to warrant the grant of writ relief. See id. at 538 (holding that where 

habeas record revealed valid alternative prior convictions that supported 

applicant’s enhanced sentence, applicant failed to establish harm sufficient to 

warrant grant of writ relief). 
10

Nevertheless, whether the State could have properly alleged habitual 

offender enhancement, it is undisputed that it did not actually do so. And whether 

an error may warrant habeas corpus relief is a separate question from the issue we 

must resolve here, which is whether we should undertake a harm analysis when 

this issue is raised on direct appeal. The Court of Criminal Appeals has explicitly 

held that we “should not” undertake a harm analysis in these circumstances and 

that the State’s failure to meet its evidentiary burden with respect to habitual 

offender enhancement “can never be deemed harmless.” Jordan, 256 S.W.3d at 

291, 293. Thus, we hold that the evidence is insufficient to support the trial court’s 

finding of true with respect to the second enhancement and the imposition of 

punishment as a habitual offender. See Jordan, 256 S.W.3d at 291; see also Mikel, 

167 S.W.3d at 560. Accordingly, we will reverse the portion of the judgment 

assessing punishment and remand for a new punishment hearing. See Mikel, 167 

S.W.3d at 560 (reversing portion of judgment assessing punishment and remanding 

for new punishment hearing where record affirmatively reflected that offense in 

second enhancement paragraph did not occur before offense in first enhancement 

paragraph was final and therefore punishment as habitual offender was improper).

We sustain Diaz’s sole issue.
11

Conclusion

We affirm the trial court’s judgment as to guilt, reverse the judgment as to 

punishment, and remand for a new punishment hearing. 

Rebeca Huddle

Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).