Opinion
No. 1341-87.
March 9, 1988.
Appeal from the 180th District Court, Harris County, Patricia Lykos, J.
Catherine Greene Burnett, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr. and Michael Shelby, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
A jury found appellant guilty of possession of a controlled substance and, after finding appellant had been twice previously convicted of a felony, assessed punishment at confinement for 99 years. The Fourteenth Court of Appeals affirmed appellant's conviction in a published opinion. Glorioso v. State, 744 S.W.2d 202 (Tex.App. — Hou. [14th dist.] 1987).
In the Court of Appeals, appellant attacked the sufficiency of the evidence to show the finality of one of the prior convictions used for enhancement because the evidence introduced before the jury showed that the case was on appeal. The Court of Appeals held that appellant's lack of objection at trial to the finality waived his claim as to sufficiency. In his petition for discretionary review, appellant contends that the Court of Appeals erred in holding that he had waived his challenge to the sufficiency of the proof of finality. He further alleges that since the State's exhibit which noted that appellant's appeal in Cause No. 354,405 was final was never introduced before the jury, there was no proof that that conviction, contained in one of the enhancement paragraphs, was final. We note that Jones v. State, 711 S.W.2d 634 (Tex.Cr.App. 1986), which was not cited by the Court of Appeals, appears to be dispositive of appellant's contention. Accordingly, we grant appellant's petition for discretionary review and remand this case to the Fourteenth Court of Appeals for reconsideration in light of Jones.