Pace, Joe

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-216-08

JOE PACE, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW IN CAUSE NO. 01-04-00518-CR FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

Per Curiam. C OCHRAN, J., dissented.

OPINION

Joe Pace was charged with delivery of a controlled substance, and the State alleged

two prior convictions for enhancement. At punishment, the State introduced evidence that

Pace’s prior forgery conviction had been appealed. On appeal in this case, Pace alleged that

the State failed to prove that the forgery conviction was final. The First Court of Appeals PACE - 2

affirmed, holding that the evidence was sufficient to prove that the conviction was final

because Pace admitted to being convicted of forgery and to going to prison for that offense.1

In reaching its holding, the court of appeals relied on our decision in Flowers v. State.2

Pace filed a petition for discretionary review contending, in his second ground for

review, that the court of appeals erred in relying on Flowers and that the court instead should

have relied on Jones v. State.3 In Jones, we held if the State introduces evidence that a prior

conviction has been appealed, it is then incumbent upon the State to offer proof that the

conviction has been affirmed. Pace is correct that the court of appeals erred to conclude that

the State satisfied its burden in this case. Evidence that Pace was convicted and went to

prison is insufficient to establish that the prior forgery conviction was affirmed.

Accordingly, we grant Pace’s petition for discretionary review, vacate the judgment

of the court of appeals, and remand this case to the trial court for a new punishment hearing.

We also refuse Pace’s first ground for review.

DATE DELIVERED: July 2, 2008 DO NOT PUBLISH

1 Pace v. State, No. 01-04-00518-CR, 2007 Tex. App. LEXIS 8143 (Tex. App.—Houston [1st Dist.] Oct. 11, 2007) (not designated for publication). 2 220 S.W.3d 919 (Tex. Crim. App. 2007). 3 711 S.W.2d 634 (Tex. Crim. App. 1986).