NUMBER 13-17-00150-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

MARCO MEDRANO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 319th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Hinojosa 

Memorandum Opinion by Justice Rodriguez

By one issue, appellant Marco Medrano asserts that there was legally insufficient 

evidence to demonstrate that he had a prior felony conviction, for purposes of the habitual 

offender statute. We reverse and remand for a new trial on punishment only.
2

I. BACKGROUND

A grand jury indicted Medrano for aggravated assault and two counts of attempted 

aggravated robbery. The indictment alleged that each count should be enhanced due to 

Medrano’s prior felony conviction in 2009 for burglary of a habitation. Finally, the 

indictment alleged that Medrano committed both offenses with the aid of a deadly 

weapon: a hammer.

At a bench trial, witnesses testified that Medrano brandished a hammer and 

threatened his neighbors while under the influence of drugs. Medrano began to smash 

the windows of their vehicles and houses, and he swung the hammer at one neighbor, 

Nora Guzman, striking and breaking her left arm. The trial court found Medrano guilty of 

(1) one count of aggravated assault, a second-degree felony, see TEX. PENAL CODE ANN.

§ 22.02(b) (West, Westlaw through 2017 1st C.S.); and (2) two counts of the lesserincluded offense of attempted robbery, a third-degree felony. See id. §§ 15.01(d), 

29.02(b) (West, Westlaw through 2017 1st C.S.).

During the punishment phase, the State asked the trial court to take judicial notice 

of Medrano’s pre-sentence investigation report (PSI). The State asserted that the PSI 

report contained information concerning Medrano’s prior conviction for burglary, for 

purposes of proving the repeat-felony-offender enhancement. Counsel for Medrano 

indicated that he had the opportunity to review the PSI, and he had no objection to the 

trial court taking judicial notice of the PSI. The trial court responded, “Okay. State, do 

you want to close?” The PSI report does not appear in the record.
3

The parties made closing argument, and the trial court pronounced its sentence. 

For the aggravated assault count, the trial court sentenced Medrano to thirty-five years in 

prison. For the two attempted robbery counts, the trial court found that both were 

punishable as second-degree felonies rather than third-degree felonies, and it sentenced 

Medrano to fifteen years for each count.1 All sentences were to run concurrently.

After sentencing, the State sought to confirm that the trial court had, in fact, found 

the repeat-felony-offender enhancement allegation to be true:

The State: Just for the record, are you finding the [repeatfelony-offender] judgment true, the prior 

judgment? Just so I can . . .

The Trial Court: Well, did you-all submit evidence of that?

The State: I think we—

The Trial Court: There’s a stipulation as to that.

The State: We stipulated.

The Trial Court: Then that’s true. I find that true. Yes. All 

right. Thank you-all very much.

See id. § 12.42 (West, Westlaw through 2017 1st C.S.). The proceeding concluded, and 

this appeal followed. No stipulation appears in the record on appeal.

II. DISCUSSION

By his sole issue, Medrano disputes the notion that he stipulated to a prior felony 

conviction. Medrano observes that the trial court found the habitual-felony-offender 

enhancement to be true and enhanced the punishment range for each of his convictions 

 

1 The trial court made a deadly weapon finding as to the aggravated assault conviction, but not as 

to the attempted robbery convictions.
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accordingly. Medrano contends, however, that the record is devoid of any evidence 

demonstrating a stipulation or a plea of true to the enhancement. If there is no affirmative 

evidence in the record showing a plea of “true” to an enhancement allegation, the State 

must prove the allegation beyond a reasonable doubt. Wood v. State, 486 S.W.3d 583, 

588 (Tex. Crim. App. 2016). The State does not dispute this point, and we agree that 

the record contains no evidence of a stipulation or plea of true.

2

The State instead responds that even if Medrano did not stipulate to the prior 

conviction, it can be established through Medrano’s PSI report. However, the State has 

filed—and we have granted—two motions to supplement the record. Even after 

supplementation, the PSI does not appear in the record. Because the PSI report is 

absent, we cannot rely on the PSI as a basis for affirmance, as we explain.

In reviewing the sufficiency of the evidence to support a finding that an 

enhancement is true, we consider all the evidence in the light most favorable to the trial 

court’s finding and determine whether a rational trier of fact could have found the essential 

elements beyond a reasonable doubt. Id. at 589. To establish that the defendant has 

been convicted of a prior offense, the State must prove 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); see Ex parte Pue, __S.W.3d__, __, No. WR-85,447-01, 

 

2 The judgment recites that Medrano entered a plea of true to the enhancement. However, that 

recitation does not necessarily relieve the State of its burden to introduce evidence of either (1) a plea of 

true to the repeat-offender enhancement or (2) the prior conviction itself. See Wood v. State, 486 S.W.3d 

583, 589 (Tex. Crim. App. 2016). As in Wood, Medrano “pled not guilty to the indictment, offered testimony 

and evidence at the bench trial in an attempt to refute the officer’s testimony, and requested probation at

punishment.” See id. Because Medrano entered a plea of not guilty to the indictment, and the record 

shows that he disputed his guilt and punishment, we will not presume that he pled “true” to the enhancement 

paragraph of the indictment, regardless of the judgment recitation. See id.
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2018 WL 1109471, at *3 (Tex. Crim. App. Feb. 28, 2018) (addressing finality). No 

specific document or mode of proof is required to prove these two elements. Flowers,

220 S.W.3d at 921.

A trial court may take judicial notice of a prior conviction described in a PSI report, 

which may be sufficient to prove an enhancement allegation if no party objects to the 

accuracy of the PSI information. Jackson v. State, 474 S.W.3d 755, 757 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d) (cataloging cases); see Montgomery v. State, 876 

S.W.2d 414, 415–16 (Tex. App.—Austin 1994, pet. ref’d) (per curiam); see also Mayfield 

v. State, 757 S.W.2d 871, 875 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (op. on 

reh’g).3 To fall within this rule, however, the PSI report must be made a part of the record. 

See Montgomery, 876 S.W.2d at 415; Jackson, 474 S.W.3d at 758.

The Texas Court of Criminal Appeals has also issued an unpublished opinion 

which endorses judicial notice of a prior conviction described in a PSI report, so long as 

it appears in the appellate record. See Jackson, 474 S.W.3d at 757 (discussing Brewer 

v. State, No. 1270–03, 2004 WL 3093224, at *2–3 (Tex. Crim. App. May 19, 2004) (op., 

not designated for publication)). As the Jackson court recognized, the unpublished 

Brewer opinion is not precedent, and we do not cite it as authority, but its reasoning is 

nonetheless “illustrative and persuasive.” See id. In particular, Brewer clearly explains 

 

3

In Montgomery v. State, the court cited several justifications for its holding: (1) it was appellant 

himself who requested the PSI report which described the prior convictions, and the district court relied on 

the PSI report without objection; (2) appellant was given an opportunity to dispute the convictions, but 

instead endorsed the PSI report’s accuracy; (3) the Legislature expressly authorized the district court to 

consider PSI reports when assessing punishment; (4) the trial record showed that all parties assumed the 

existence of the convictions; and (5) the Texas Court of Criminal Appeals has recognized “a variety of ways 

to prove a previous conviction,” suggesting that a “flexib[le]” approach is warranted. See 876 S.W.2d 414, 

415–16 (Tex. App.—Austin 1994, pet. ref’d) (per curiam); Mayfield v. State, 757 S.W.2d 871, 875 (Tex. 

App.—Houston [1st Dist.] 1988, pet. ref’d) (op. on reh’g) (similar).
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why judicial notice of a prior conviction from a PSI report should be permitted, but only if 

the PSI report appears in the record:

The purpose of compiling a PSI is to fully inform the trial court of the 

circumstances of the offense, the defendant’s background, education, prior 

offenses, and prospects for rehabilitation, and the harm, if any, caused to 

the victim of a crime. There would be little purpose in compiling this report 

if the trial judge cannot rely upon the information contained within it. 

Because the Texas Legislature gave the defendant an explicit statutory right 

and opportunity to object to the factual accuracy of its contents and to 

correct any mistakes or misstatements, it surely intended that the trial judge 

would rely upon unobjected-to facts contained within that PSI when 

assessing an appropriate punishment.

. . . Prior Texas cases have . . . held that a trial judge may take judicial notice 

of the truth of the contents of PSI reports under Rule 201 of the Texas Rules 

of Evidence when a defendant does not object to them.

. . . Facts that are capable of accurate and ready determination by resort to 

sources whose accuracy cannot reasonably be questioned are known as 

“verifiably certain facts.” A party who requests the court to take judicial 

notice of a verifiably certain fact must generally provide the court with written 

source material. . . . Judicial notice of “verifiably certain facts” dispenses 

with the need for a sponsoring witness, a formal offer of proof, or admissible 

documents, but it still requires substantiation with source material. To 

facilitate appellate review, the source relied upon for notice, as well as other 

references consulted in establishing the authoritativeness of the primary 

source, should be set forth in the record.

Brewer, 2004 WL 3093224, at *3 (quotations and citations omitted).

The PSI does not appear in the record, and therefore the State may not rely upon 

judicial notice of that document to demonstrate the existence of a prior conviction. See

TEX. R. EVID. 201(b)(2); Montgomery, 876 S.W.2d at 415. Finding no other factual 

support for the prior conviction, we conclude that there is insufficient evidence to support 

the enhancement of Medrano’s conviction. See Wood, 486 S.W.3d at 589; see also TEX.

PENAL CODE ANN. § 12.42. Such a failure of proof is not subject to a harmless error 
7

analysis. Ex parte Miller, 330 S.W.3d 610, 624 (Tex. Crim. App. 2009); see Jordan v. 

State, 256 S.W.3d 286, 291 (Tex. Crim. App. 2008).

For the aggravated assault count, the trial court sentenced Medrano to thirty-five 

years in prison—a punishment above the maximum of twenty years for a second-degree 

felony with no enhancement. See TEX. PENAL CODE ANN. § 12.33(a) (West, Westlaw 

through 2017 1st C.S.) (punishment range); id. § 22.02(b) (aggravated assault). For the 

two attempted robbery counts, the trial court sentenced Medrano to fifteen years in 

prison—a punishment above the maximum of ten years for an unenhanced third-degree 

felony. See id. § 12.34(a) (West, Westlaw through 2017 1st C.S.) (punishment range); 

id. § 15.01(d) (criminal attempt); id. § 29.02(b) (robbery). A sentence that is outside the 

maximum or minimum range of punishment is unauthorized by law and therefore illegal. 

Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (en banc).

This illegality requires reversal, but it does not bar the use of the enhancement in 

any subsequent proceeding. “When a reviewing court determines that the State’s 

evidence fails to show that an enhancement allegation is true, the Double Jeopardy 

Clause does not bar the use of the enhancement conviction during a retrial on 

punishment.” Jordan, 256 S.W.3d at 292. The State’s failure to present sufficient 

evidence to support the enhancement allegations requires us to reverse and remand for 

a new trial on punishment only, during which the State may present evidence concerning 

Medrano’s prior convictions. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West, 

Westlaw through 2017 1st C.S.); Hartwell v. State, 476 S.W.3d 523, 541 n.9 (Tex. App.—

Corpus Christi 2015, pet. ref’d); Wise v. State, 394 S.W.3d 594, 600–01 (Tex. App.—
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Dallas 2012, no pet.); Dixon v. State, 932 S.W.2d 567, 571 (Tex. App.—Tyler 1995, no 

pet.).

We sustain Medrano’s sole issue.

III. CONCLUSION

We reverse and remand the matter to the trial court for a new trial on punishment.

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

5th day of April, 2018.