PD 15-________

In the Court of Criminal Appeals of Texas

At Austin

♦

No. 01-14-00387-CR

In the Court of Appeals

For the First District of Texas

At Houston

♦

No. 1391077

In the 179th District Court

Of Harris County, Texas

♦

Michael Diaz

Appellant

v. 

The State of Texas

Appellee

♦

State’s Petition for Discretionary Review

♦

Devon Anderson

District Attorney

Harris County, Texas

Chelsea Peterson

Beth Exley

Assistant District Attorneys 

Harris County, Texas

Clinton A. Morgan

Assistant District Attorney

Harris County, Texas

State Bar No. 24071454

morgan_clinton@dao.hctx.net

1201 Franklin St., Suite 600

Houston, Texas 77002 

Telephone: 713.755.5826

Oral Argument Requested

PD-0890-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/16/2015 5:06:40 PM

Accepted 7/17/2015 4:05:00 PM

ABEL ACOSTA

CLERK
Statement Regarding Oral Argument

The State is asking for a ruling that limits the reach of a recent, 

valid precedent of this Court in order to avoid an absurd result in this 

case. Oral argument would allow the Court to better understand how the 

parties view the advantages and drawbacks of this limitation. Oral 

argument would serve the important function of allowing the parties to 

address any of the Court’s concerns, either with the State’s proposed 

limitation or with the present rule, that may get overlooked in the 

briefing. 

i
Identification of the Parties

Counsel for the State:

Devon Anderson 

 District Attorney of Harris County

Chelsea Peterson & Beth Exley

— Assistant District Attorneys at trial

Clinton A. Morgan

 Assistant District Attorney on appeal

1201 Franklin St.

Suite 600

Houston, Texas 77002

Appellant:

Michael Diaz

Counsel for the Appellant:

David Garza

— Counsel at trial

102 S. Lockwood Dr.

Houston, Texas 77011-3124

Terrence A. Gaiser

— Counsel at trial

2900 Smith Street, #220

Houston, Texas 77006

Trial Judge:

Pam Derbyshire

 Presiding judge

ii
Table of Contents

Statement Regarding Oral Argument .................................................i

Identification of the Parties .............................................................. ii

Table of Contents ................................................................................ iii

Index of Authorities .............................................................................v

Statement of the Case ..........................................................................1

Statement of Procedural History .......................................................1

Question Presented

When the State fails to prove the habitual-offender enhancement 

allegations in the indictment, but the evidence conclusively proves 

other convictions that would render the appellant eligible for 

habitual-offender sentencing, is automatic reversal appropriate 

despite the fact that the appellant will receive the same sentence on 

remand?............................................................................................................................2

I. Factual and Legal Background..................................................................3

A. The State pled the wrong prior convictions in the 

enhancement paragraphs................................................................................3

B. The Court of Appeals reversed, based on apparently binding 

precedent from this Court that the error in this case was not 

subject to any sort of harm analysis............................................................5

II. Why This is an Absurd Result....................................................................6

A. The appellant will not benefit from this reversal because on 

remand the State will file a motion to enhance his punishment 

with the correct prior convictions. ..............................................................6

B. Had this error been discovered in the trial court it could have 

been easily fixed...................................................................................................7

C. Had the appellant brought up this error in a habeas 

proceeding, this Court would have rejected his claim because he 

was “only fictionally harmed.”.......................................................................9

iii
III. Argument: The error in this case was harmless, and a reversal 

is the sort of absurd result that should be avoided through 

application of a harm analysis......................................................................... 10

A. The harm analysis that should apply to this case is 

categorically different from the harm analysis this Court rejected 

in Jordan, and, despite its overly broad language, Jordan should 

not apply here.................................................................................................... 10

B. Unlike in Jordan, a remand in this case can serve no 

legitimate function........................................................................................... 12

Conclusion .......................................................................................... 17

Certificate of Compliance and Service........................................... 18

Appendix

Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—

Houston [1st Dist.], June 18, 2015) (mem. op. not designated for 

publication)

iv
Index of Authorities

Cases

Cooper v. State

788 S.W.2d 612 (Tex. App.—

Houston [1st Dist.] 1990, pet. ref’d)............................................................ 8, 13

Diaz v. State

No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—

Houston [1st Dist.], June 18, 2015) 

(mem. op. not designated for publication)...................................................1, 6

Ex Parte Parrott

396 S.W.3d 531 (Tex. Crim. App. 2013)...................................................... 9, 10

Freda v. State

704 S.W.2d 41 (Tex. Crim. App. 1986).................................................................7

Johnson v. State

995 S.W.2d 926 (Tex. App.—

Waco 1999, no pet.) ................................................................................................. 14

Jordan v. State

256 S.W.3d 26 (Tex. Crim. App. 2008).....................................................passim

Pelache v. State

324 S.W.3d 568 (Tex. Crim. App. 2010)...................................................... 8, 13

Plessinger v. State

536 S.W.2d 380 (Tex. Crim. App. 1976)...................................................... 8, 13

Roberson v. State

420 S.W.3d 832 (Tex. Crim. App. 2013)..............................................................7

Rooks v. State

576 S.W.2d 615 (Tex. Crim. App. 1978) (panel op.).......................................8

Saldana v. State

826 S.W.2d 948 (Tex. Crim. App. 1992)........................................................... 14

Tomlin v. State

722 S.W.2d 702 (Tex. Crim. App. 1987)..............................................................3

v
Statutes

TEX. PENAL CODE § 12.42...................................................................................................3

Other Authorities

George E. Dix & John M. Schmolesky

43A Tex. Prac., Criminal Practice and Procedure § 46:107 (3d ed.).... 13

vi
Statement of the Case

The appellant was indicted for burglary of a habitation. (CR 9). 

The indictment alleged two prior felony convictions, one for an offense 

that was committed after the other conviction became final. (CR 9). The 

appellant waived his right to a jury trial and pled not guilty to the trial 

court. (2 RR 6-7). The trial court found him guilty as charged. (2 RR 101; 

CR 30). The appellant pled true to both enhancement allegations. (2 RR 

102; CR 30). The trial court found both allegations true and assessed

punishment at thirty years’ confinement. (2 RR 107; CR 30). The trial 

court certified the appellant’s right of appeal, and the appellant filed a 

notice of appeal. (CR 4, 8).

Statement of Procedural History

On June 18, 2015, a panel of the First Court of Appeals issued a 

memorandum opinion affirming the appellant’s conviction but reversing 

on punishment because the evidence showed that the enhancement 

allegations did not occur in the order alleged. Diaz v. State, No. 01-14-

00387-CR, 2015 WL 3799463 (Tex. App.—Houston [1st Dist.], June 18, 

2015) (mem. op. not designated for publication). No motions for 

rehearing were filed.

1
Question Presented

When the State fails to prove the habitual-offender enhancement 

allegations in the indictment, but the evidence conclusively proves 

other convictions that would render the appellant eligible for 

habitual-offender sentencing, is automatic reversal appropriate 

despite the fact that the appellant will receive the same sentence 

on remand?

The Court of Appeals reversed the appellant’s sentence because 

the State failed to prove the enhancement allegations in the indictment. 

However, if the case goes back to the trial court the State will be able to 

file a motion to enhance the appellant’s sentence with other felony 

convictions, convictions to which the appellant has already stipulated

and that were admitted into evidence. The appellant will then be subject 

to the exact same punishment range as he was the first time. Thus the 

appellant has gained a reversal from an error that did not harm him, and 

a remand from which he cannot benefit. 

While the State believes this reversal is a wasteful absurdity, the 

Court of Appeals’s opinion is a seemingly correct application of some 

very broad language from Jordan v. State, 256 S.W.3d 286 (Tex. Crim. 

App. 2008). Without questioning the fundamental correctness of Jordan, 

the State asks this Court to distinguish Jordan to avoid the silly result in 

this case and to prevent gamesmanship in similar cases. 

2
I. Factual and Legal Background

A. The State pled the wrong prior convictions in the 

enhancement paragraphs. 

The indictment in this case alleged that in 2008 the appellant was 

convicted of felony possession of a controlled substance, and that after 

that conviction became final he committed and was convicted of felony 

burglary of a habitation in 2009. (CR 9). If true, these allegations would 

render the appellant subject to punishment as a true habitual offender

with a punishment range of confinement for 25 to 99 years, or life. See 

TEX. PENAL CODE § 12.42(d).1

The appellant pleaded true to these allegations, and he entered a 

stipulation to five prior felony convictions (two of which were state-jail 

felonies, and thus not relevant to enhancing his punishment in this 

case). (State’s Ex. 22). However, the judgments for the two cases alleged 

in the enhancement paragraphs show that the prior burglary conviction 

was for an offense committed prior to the PCS conviction becoming final

in 2008. 

1 To prove a defendant’s status as a true habitual, the evidence must show two prior 

felony convictions that occurred in a particular chronological order: “(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.” Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 

1987).

3

 
Prior Convictions Alleged in Indictment

Offense Cause Number Date of Offense Date of Conviction

PCS 1154681 2/21/2008 3/26/2008

Burglary 1174687 7/8/2007 6/11/2009

(State’s Ex. 24). 

Using those convictions, sentencing the appellant as a true 

habitual would be inappropriate. However, if one looks at all the 

convictions to which the appellant stipulated (and for which the State 

admitted certified judgments), it is apparent that the State could have 

pled prior convictions that would have properly established the 

appellant as a true habitual. 

Second and Third Degree Felonies to Which the Appellant Stipulated

Offense Cause Number Date of Offense Date of Conviction

PCS 1259219 4/14/2010 4/19/2010

PCS 1154681 2/21/2008 3/26/2008

Burglary 1174687 7/8/2007 6/11/2009

(State’s Exs. 22, 23, 24). Had the indictment alleged the 2010 conviction 

in conjunction with either of the other two, it would have properly 

established the appellant as a true habitual. 

4
B. The Court of Appeals reversed, based on apparently 

binding precedent from this Court that the error in 

this case was not subject to any sort of harm analysis.

In the Court of Appeals, the appellant’s only complaint consisted 

of a one-page argument pointing out that the prior convictions alleged 

in the indictment did not occur in sequential order. (See Appellant’s 

Brief at 9). Citing to Jordan v. State, 256 S.W.3d 26 (Tex. Crim. App. 

2008), the appellant asked for a new punishment hearing. 

Jordan was another case involving sequence issues with habitualoffender enhancements. In that case, the State’s evidence did not show 

the date on which the second offense was committed, thus the evidence 

was insufficient to prove that it was committed after the first conviction 

became final. Jordan, 256 S.W.3d at 289. 

On appeal, the State asked the Court of Appeals to apply a harm 

analysis because Jordan’s life sentence was within the appropriate 

statutory range to which Jordan would have been subject without the 

finding that he was a true habitual. Id. at 290. This Court held that the 

State’s failure to prove the sequence of habitual-offender enhancement 

allegations was error not subject to a harm analysis. Id. at 292. To 

emphasize its point that automatic reversal was required, this Court

noted that even if such a finding were subject to a harm analysis, “the 

5
State’s failure to prove the chronological sequence of punishment 

enhancement allegations as required under [Penal Code] Section 

12.42(d) ... will never be considered harmless.” Ibid. 

In this case, the State conceded that the Court of Appeals was 

bound by the strong, categorical language in Jordan and the Court of 

Appeals agreed. Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 at 

*3 (Tex. App.—Houston [1st Dist.] June 18, 2015); see also Jordan, 256 

S.W.3d at 287 (“We hold that the court of appeals properly rejected the 

State’s contention that a harm analysis is appropriate.”). 

II. Why This is an Absurd Result

The State does not challenge the fundamental correctness of 

Jordan. However, as applied to this case, Jordan has created a truly 

absurd result.

A. The appellant will not benefit from this reversal 

because on remand the State will file a motion to 

enhance his punishment with the correct prior 

convictions.

It is typically the case that winning on appeal will help a criminal 

defendant in a fairly obvious manner. That is not the case here. Indeed, it 

is hard to imagine how the reversal in this case will help the appellant 

unless he enjoys repetitive court proceedings.

6
The Double Jeopardy prohibition does not bar the re-use of prior 

convictions in a second punishment hearing. See Jordan, 256 S.W.3d 291. 

Therefore, if this case is remanded to the trial court the State will be able 

to enhance the appellant’s sentence using the 2010 conviction in 

conjunction with one of the appellant’s other felony convictions, and 

then the evidence will adequately support his punishment as a true 

habitual. Unless the appellant has misbehaved while in prison (in which 

case his punishment can be increased), he will surely receive the same 

sentence.

B. Had this error been discovered in the trial court it 

could have been easily fixed.

Applying Jordan’s rule of automatic reversal to this case is 

incongruous with this court’s prior holdings that, so long as the 

defendant has notice of the State’s intent to enhance his sentence, the 

details of those prior convictions that make it into the indictment are 

not terribly important. See Roberson v. State, 420 S.W.3d 832, 840 (Tex. 

Crim. App. 2013) (evidence sufficient to show habitual status despite 

fact that enhancement paragraphs alleged in wrong order); see also 

Freda v. State, 704 S.W.2d 41, 43 (Tex. Crim. App. 1986) (incorrect name 

for prior offense used in enhancement allegation immaterial); Rooks v. 

7
State, 576 S.W.2d 615, 616-17 (Tex. Crim. App. 1978) (panel op.)

(variance regarding court of conviction was not material); Plessinger v. 

State, 536 S.W.2d 380, 381-82 (Tex. Crim. App. 1976) (difference 

between pleading that prior conviction was named “State of Texas v. 

[defendant]” and proof that prior conviction was named “State of 

Arizona v. [defendant]” immaterial).

In this case, the State gave pre-trial notice of its intent to introduce 

evidence of the 2010 conviction. (CR 23). Therefore, had this error been 

pointed out in the trial court, the State could have simply filed a motion 

to enhance the appellant’s sentence using the 2010 conviction, even 

after trial started and even if the appellant objected. See Pelache v. State, 

324 S.W.3d 568, 577 (Tex. Crim. App. 2010). The Court of Appeals has 

still-valid precedent holding that it is, at worst, harmless error to allow 

the State to correct an error in an enhancement paragraph in the middle 

of trial over the defendant’s objection. See Cooper v. State, 788 S.W.2d 

612, 616 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).

8
C. Had the appellant brought up this error in a habeas

proceeding, this Court would have rejected his claim 

because he was “only fictionally harmed.”

In Ex parte Parrott, this Court dealt with a case that was factually 

similar to this case, but which came up in the context of an 11.07 habeas 

writ. Parrott pleaded guilty to a third-degree felony, with the 

punishment enhanced by a prior felony conviction. Ex Parte Parrott, 396 

S.W.3d 531, 533 (Tex. Crim. App. 2013). After his conviction became 

final, Parrott filed an 11.07 petition noting that the conviction used to 

enhance his punishment was actually a state-jail felony, thus it could not 

be used to enhance punishment. Ibid. 

The record in Parrott, like the record in this case, showed 

additional felony convictions that could have been used in lieu of the 

inappropriate enhancement. Id. at 533-34. In Parrott, this Court 

recognized that if relief were granted, at a new punishment hearing the 

State would be able to use those other convictions to enhance Parrott’s 

sentence to the exact same degree as it had been enhanced the first 

time, thus “relief would serve only to provide [Parrot] an additional 

opportunity to contest prior convictions that the trial court ... has 

9
already determined to be valid.”2 Id. at 538. This Court denied relief, 

deeming habeas relief inappropriate for an applicant who had been 

“only fictionally harmed.” Ibid.

III. Argument: The error in this case was harmless, and a 

reversal is the sort of absurd result that should be avoided 

through application of a harm analysis.

The State believes that the evidence shows, beyond any doubt, 

that the error in this case was harmless, and that applying the Jordan

rule of automatic reversal creates an absurd result. Upon close analysis, 

it is clear that this Court’s concerns in Jordan are not applicable to this 

case. Also unlike Jordan, a remand in this case can serve no legitimate 

function.

A. The harm analysis that should apply to this case is 

categorically different from the harm analysis this 

Court rejected in Jordan, and, despite its overly broad 

language, Jordan should not apply here. 

In Jordan, this Court broke down the sentencing process into two 

parts. Jordan, 256 S.W.3d at 293. First, there is the factfinder’s 

determination of historical fact, namely whether the enhancement 

2 In Parrott’s habeas proceedings, the trial court had made a finding that the prior 

convictions were valid. There is no such finding from the trial court in this case; 

however, the appellant stipulated to the relevant convictions, thus he would be 

estopped from contesting them on remand. If anything, then, a remand in this case 

would be marginally more pointless than in Parrott. 

10

 
allegations are true. That determination sets the punishment range. The 

factfinder then makes a normative determination of what punishment to 

assess from within that range.

The error in Jordan was that there was insufficient evidence to 

support the jury’s findings of historical fact, and this led them to select 

an incorrect punishment range from which to make the normative 

decision. The State’s argument on appeal was that the error was 

harmless because the normative decision that the jury made would have 

been allowable had the jury been assessing punishment based on the 

correct range. Essentially, the State was using the jury’s determination 

from the second part of the sentencing process to show that the error in 

the first part of the sentencing process was harmless. This Court 

rejected that argument because, given the “absence of discrete, objective 

facts decided by the jury” in the second part of the sentencing process, it 

was impossible to calculate the effect of using the incorrect range, thus it 

could not be said that the error in the first part of the sentencing 

process was harmless. Ibid.

In this case, the error relates to the first part of the sentencing 

process, but so does the evidence that the error was harmless. The total 

evidence at trial conclusively shows that the appellant is a true habitual, 

11
even if the State’s pleading did not. Thus, the trial court, in assessing 

punishment in the second part of the sentencing process, used the 

correct punishment range. 

The Jordan court’s problem with using the determination from the 

second part of the process as a basis for holding harmless an error in the 

first part of the process was based on the subjective, normative nature 

of the second determination. That is not an issue in this case. The 

objective facts show that the finding that the appellant was a true 

habitual was correct. Despite Jordan’s broad language that would appear 

to make its holding applicable to this case, the reasoning of Jordan does 

not apply to this case at all. 

The State believes the Court of Appeals was bound by Jordan 

because of its overly broad language. This Court, however, should use 

this case to show that Jordan’s holding does not extend beyond the 

bounds of its reasoning. 

B. Unlike in Jordan, a remand in this case can serve no 

legitimate function.

The State’s ability, as recognized in the case law, to make mid-trial 

corrections to errors in the pleading of enhancement allegations has 

created a system where defendants have little, if any, incentive to point 

12
out pleading errors in the trial courts. See, e.g., Cooper, 788 S.W.2d at 616 

(allowing State to amend enhancement paragraph over defense 

objection was, at worst, harmless error); Pelache, 324 S.W.3d at 577 

(allowing State to file mid-trial motion to enhance sentence). Indeed, the 

low chance of reversal based on pleading errors in enhancement 

paragraphs means that, so long as the generalities of the pleading are 

correct the parties are likely to pay little attention to minor errors. See 

George E. Dix & John M. Schmolesky, 43A Tex. Prac., Criminal Practice 

and Procedure § 46:107 (3d ed.) (“No case after [Plessinger v. State, 536 

S.W.2d 380 (Tex. Crim. App. 1976)] has determined that a variance 

between the allegations of a prior conviction and its proof is fatal.”). 

Given the present habits of trial attorneys on both sides, applying a rule 

of automatic reversal in this case creates an opportunity for 

gamesmanship. 

This case provides a good example of how the current state of 

affairs works. The indictment gave the appellant notice that the State 

was seeking to punish him as a true habitual, and the State’s notice of 

intent to introduce extraneous offenses put him on notice that the State 

would introduce evidence of enough second- and third-degree felonies 

to prove that he was a true habitual. (See CR 22). Had defense counsel 

13
pointed out the State’s pleading error in the trial court, the State could 

have immediately corrected it and the defense would have gained 

nothing. In the absence of defense counsel complaining about the 

pleadings in the indictment, the prosecutor probably presumed 

everything was in order.

Given the rule of automatic reversal, a wily defense attorney could 

easily game the system and give his client two bites at the punishment 

apple. Having noticed the error, the wily defense lawyer would proceed 

to punishment as though nothing were wrong. If he were reasonably 

satisfied with the punishment verdict, he would continue to keep quiet 

on appeal. If he disliked the verdict, however, he would raise the matter, 

obtain an automatic reversal, and opt for a different factfinder on 

remand. See Johnson v. State, 995 S.W.2d 926, 929 (Tex. App.—Waco 

1999, no pet.) (citing Saldana v. State, 826 S.W.2d 948 (Tex. Crim. App. 

1992)) (defendant entitled to have jury assess punishment on remand 

despite fact that trial court assessed punishment at original trial). Or, 

had he opted for a jury the first time, he could opt for a jury a second 

time and hope for a friendlier panel and a less compelling presentation 

of the State’s punishment evidence. 

14
The State will grant that such a defendant will still be facing at 

least 25 years even after playing such a game, which might seem like a 

very low level of winning. But if a defendant has been assessed a 

punishment of 75 years or life by a trial court and then gets that 

sentence reduced to 40 years on remand to a jury, he will have bumped 

up his parole eligibility by ten years and given himself a chance to 

discharge his sentence before his dotage. And he will have done so 

based not on any unfairness in the original proceeding or any

incorrectness in the original sentence, but on what amounts to little 

more than a typo. 

In Jordan, the State failed to prove that the defendant committed 

one felony after the conviction in another felony become final. On the 

appellate record, this Court could not determine with any confidence 

whether on remand the State could prove that Jordan was a true 

habitual. Jordan was a case where it was altogether possible that the 

trial attorneys had overlooked an actual failing in the State’s evidence 

and a remand would create a different, more lawful result, with the 

possibility of Jordan receiving a sentence (as little as 15 years) that was 

below the minimum he could have received in his first punishment 

hearing. In this case, without the State introducing additional evidence,

15
the appellant will be subject to the exact same range of punishment as 

the first time, and the factfinder will be aware of the exact same prior 

convictions as the first time. If the appellant receives a different 

punishment on remand it will be due to luck or caprice, and his new 

sentence will be not one whit more lawful.

To be clear, the State is not alleging that the appellant or either of 

his attorneys has played a game in this case. The appellant received a 

sentence of 30 years. Considering that 25 is the minimum he will face on 

remand, a prudent man would return to the judge for punishment in 

order to receive the same sentence. This should serve to emphasize how 

unfortunate it is to apply a rule of automatic reversal to the error in this 

case: Either it creates an opportunity for a defendant to game the 

system, or it creates an utterly pointless remand, but in no circumstance 

does it create a more just result.

16
Conclusion

The State asks this Court to grant discretionary review and hold 

that the Jordan rule of automatic reversal does not apply when the 

evidence conclusively shows that the factfinder selected a sentence from 

the correct punishment range.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

713.755.5826

Texas Bar No. 24071454

17
18

Certificate of Compliance and Service

I certify that, according to Microsoft Word’s word counting 

function, the portion of this brief for which Rule of Appellate Procedure 

9.4(i)(1) requires a word count contains 3,147 words.

I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

Terrence A. Gaiser

tagaiser@aol.com

Lisa McMinn

State Prosecuting Attorney

information@spa.texas.gov

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

Texas Bar No. 24071454

Date: July 16, 2015
Appendix

Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—

Houston [1st Dist.], June 18, 2015) (mem. op. not designated for 

publication)
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 
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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 
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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). 
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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.
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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).