Comment

Describing Enhancement Allegations. Traditionally, enhancement allegations were included in the charging instrument. The jury instructions, then, could easily refer to them “as alleged in the indictment.”

In 1997, the court of criminal appeals made clear that enhancement allegations need not be in the charging instrument. Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997). As a result, the traditional method of referring to the enhancement allegations is no longer generally applicable.

The Committee chose to make the punishment stage instruction consistent with the guilt stage instruction by referring to the state’s “accusations.”

Required Finality of Enhancement Offenses. The statutory provisions for enhancing punishment by proof of prior convictions vary on whether they explicitly require that the conviction be final and when any required finality must have occurred. Case law under earlier statutory provisions makes clear that even in the absence of an explicit statutory requirement of finality, one is inherent in the statutory schemes. Further, a conviction must have become final by the time of the commission of the offense for which the prior conviction is offered in enhancement. Arbuckle v. State, 105 S.W.2d 219, 219–21 (Tex. Crim. App. 1937). Accord Doyle v. State, 137 S.W.2d 26, 26 (Tex. Crim. App. 1940). Recent discussions have assumed the continuing vitality of these early analyses. Beal v. State, 91 S.W.3d 794, 795–96 (Tex. Crim. App. 2002); Jordan v. State, 36 S.W.3d 871, 873 (Tex. Crim. App. 2001).

The Committee assumed, therefore, that the enhancement provisions all required finality in this traditional sense.

Finality is a jury issue. Despite the considerable discussion of finality in the appellate case law, there has been little or no litigation regarding the extent to which juries should be instructed on the requirement of finality.

Diremiggio v. State, 637 S.W.2d 926, 928 (Tex. Crim. App. 1982).

Generally, the prima facie case mentioned in Diremiggio is made by proof of a judgment showing imposition of a sentence. Cf. Thornton v. State, 576 S.W.2d 407, 408–09 (Tex. Crim. App. 1979).

The Committee concluded that under existing law the state must prove that enhancement offense convictions are final. It also concluded that issues concerning finality are seldom raised and that jury instructions defining finality would be cumbersome and potentially confusing and distracting. Consequently, it recommends that as a general rule no definition of finality be included in the instructions.

Defining Finality in Enhancement Cases. If the evidence in a particular case raises a question about finality, additional instructions defining finality may be necessary.

If, for example, the evidence raises the possibility that imposition of sentence was suspended, finality requires the state to prove that community supervision was revoked and sentence imposed. Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978) (“[A] conviction is final for enhancement purposes where the imposition of sentence has been suspended, probation granted, but a revocation of the probation is alleged and proved by the State.”). Accord Franklin v. State, 219 S.W.3d 92, 96 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (conviction for which sentence was suspended became final on date that probation was revoked and defendant was sentenced to term of imprisonment).

If the evidence raises the possibility that an appeal was taken—for example, there is evidence of notice of appeal—the state must also show that any appeal was disposed of in a manner rendering the conviction final. Jones v. State, 711 S.W.2d 634, 635–36 (Tex. Crim. App. 1986). “[A]n appealed prior conviction . . . becomes final when the appellate court issues its mandate affirming the conviction.” Beal, 91 S.W.3d at 796.

In cases of these sorts, the instruction would probably have to define finality. This might be accomplished by including all or some of the following language:

When Defendant Pleads “True” to Enhancement. When the defendant pleads “true” to enhancement allegations, the existing practice is to inform the jury of the enhancement allegations and the defendant’s plea, to direct the jury to find the allegations true, and to instruct them to assess punishment from a range that assumes the allegations have been proved. Verdict forms generally set out that the jury finds the allegations true.

Whether this is necessary is not clear. In Harvey v. State, 611 S.W.2d 108 (Tex. Crim. App. 1981), the court of criminal appeals indicated the following:

Harvey, 611 S.W.2d at 112.

Nothing in Harvey indicated that a jury finding was necessary or that the jury needed to be told of the enhancement. See Washington v. State, 59 S.W.3d 260, 264–65 (Tex. App.—Texarkana 2001, pet. ref’d) (under Harvey, trial court did not err in instructing jury that enhanced range of punishment was “the punishment authorized for this offense” since defendant pleaded true to enhancement allegation); Mitchell v. State, No. 2-05-426-CR, 2006 WL 3438012, at *2 (Tex. App.—Fort Worth Nov. 30, 2006) (per curiam) (not designated for publication) (when defendant pleaded “true” to enhancement allegation, punishment instruction was not fundamentally defective for failing to require jury to find that allegation was true).

Ordinarily, at the beginning of the punishment phase of the trial the enhancement allegations are read to the jury and the defendant enters a plea. When this is done, a policy of full disclosure to the jurors suggests that the instructions and verdict make clear to the jurors the consequences of the allegations and the defendant’s plea.

Whether a trial judge properly could simply withhold from a sentencing jury the fact that the case involved enhancement is not clear. Perhaps if the defendant not only offers to plead true but also offers a stipulation on the prior convictions, the trial court can—and perhaps should—simply instruct the jury as if the enhanced punishment range was attached by statute to the offense of which the defendant was convicted. If that is properly done, of course, the punishment instruction should be phrased to avoid any reference to the enhancement allegations, the defendant’s plea, or the offenses alleged.

Defendants might prefer to have sentencing juries unaware that the range of punishment submitted was triggered by prior convictions. On balance, however, in an enhancement case the state probably has a right to have the jury know that the case involves a penalty range higher than usual for the offense involved and that this higher penalty range is triggered by the defendant’s prior conviction or convictions.

The Committee therefore recommends continuation of the existing practice.