In arriving at that holding, we stated that the caselaw in Texas and many other states has held consistently that prior convictions must be final to be used for enhancement purposes. But such a conclusion is undercut by the fact that the Legislature, despite its knowledge of our caselaw applying finality concepts to all of 12.42, did not revise the other sections of 12.42 to expressly articulate a finality requirement. In Baker v. State , the defendant had one prior felony conviction, but that conviction was on appeal. Nevertheless, the trial court, reasoning that the defendant had a prior felony conviction, refused to submit the issue of probation to the jury. Further, the consequences of construing 15 without a finality requirement strongly support finding a finality requirement in the provision.
Some hypothetical examples illustrate the problem.
Suppose, for example, that defendant A is convicted of a third degree felony, sentenced to prison, and then appeals. Defendant A is subsequently convicted of a state jail felony arising from a different transaction. Later, defendant A's third degree felony conviction is reversed on appeal and a judgment of acquittal for legally insufficient evidence is rendered. Now there is no prior conviction by which to justify defendant A's state jail sentence. Given the clear intent of 15 as discussed above, it would seem that the Legislature would not have contemplated that such a person would be denied community supervision.