NO. 07-10-0291-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 1, 2011
JOE PAUL MEE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 43RD DISTRICT COURT OF TARRANT COUNTY;
NO. 1193427D; HONORABLE RUBEN GONZALEZ, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, J.J.
MEMORANDUM OPINION
Appellant, Joe Paul Mee, was convicted by a jury of theft enhanced to a state jail
felony due to two or more prior theft convictions 1 and further enhanced to a second-
degree felony by two other prior felony convictions. 2 He was sentenced to eleven years
confinement. On appeal, Appellant asserts the State's evidence of the two convictions
1
See Tex. Penal Code Ann. § 31.03(e)(4)(D) (West Supp. 2010).
2
See Tex. Penal Code Ann. § 12.42(a)(2) (West Supp. 2010).
supporting enhancement to a second-degree felony is legally and factually insufficient. 3
The State concurs and confesses error. We reverse the trial court's judgment on
punishment and remand for a new trial on that issue.
Analysis
To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the
defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921
(Tex.Crim.App. 2007). We have read the record and, other than introducing two
documents establishing that a person named Joe Paul Mee was convicted of two prior
felonies, the State offered no evidence at the punishment hearing to link Appellant to
the prior convictions. Accordingly, we agree with Appellant and the State that the
evidence supporting enhancement to a second-degree felony is legally insufficient. See
Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App. 1986) (certified copy of judgment
and sentence normally insufficient standing alone to prove prior convictions even if
name on judgment is the same as that of the defendant who is on trial).
Appellant asks that we vacate his present sentence and remand the case for
sentencing in accordance with the range of punishment for a state jail felony. That we
3
While this appeal was pending, the Court of Criminal Appeals held that appellate courts were to review
the sufficiency of evidence in a criminal case using only the legal sufficiency standard. See Brooks v.
State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). Judge Hervey delivered the opinion in Brooks, joined
by Judges Keller, Keasler, and Cochran; and Judge Cochran delivered a concurring opinion, joined by
Judge Womack. Although we are not bound by a decision of four judges, Pearson v. State, 994 S.W.2d
176, 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in
Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from
legal sufficiency
2
cannot do. Bell v. State, 994 S.W.2d 173, 175 (Tex.Crim.App. 1999) (court of appeals
erred by reforming judgment when "it would not violate federal double jeopardy
principles to allow the State 'a second chance to present its proof of the prior burglary
conviction'") (quoting Monge v. California, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d
615 (1988)). See Barnes v. State, 70 S.W.3d 294, 303 (Tex.App.--Fort Worth 2002,
pet. ref'd).
Conclusion
Accordingly, we sustain Appellant's issues, affirm the trial court's judgment of
conviction, but we reverse the trial court's judgment on punishment and remand the
cause for a new punishment trial because the error identified by Appellant relates to
punishment only. See Tex. R. App. P. 43.2(d); Tex. Code Crim. Proc. Ann. 44.29(b)
(West Supp. 2010); Meineke v. State, 171 S.W.3d 551, 557 (Tex.App.—Houston [14th
Dist.] 2005, pet. ref'd). See also Braun v. State, No. 02-00008-13-CR, 2009 Tex. App.
LEXIS 1510, at *10-11, *16 (Tex.App.--Fort Worth Mar. 5, 2009, pet. ref'd) (mem. op.
not designated for publication); Jordan v. State, No. 02-01-00530-CR, 2003 Tex. App.
LEXIS 4737, at *6-9 (Tex.App.--Fort Worth June 5, 2003, no pet.) (mem. op. not
designated for publication); Piper v. State, No. 14-99-00649-CR, 2000 Tex. App. LEXIS
7418, at *2-3 (Tex.App.--Houston [14th Dist.] Nov. 2, 2000, no pet.) (mem. op. not
designated for publication).
Patrick A. Pirtle
Justice
Do not publish.
3