No. 05-08-00133-CR
Opinion Filed November 18, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 02-07-716.
Before Justices MOSELEY, RICHTER, and FRANCIS.
Opinion By Justice RICHTER.
Bobby Jo Evans was convicted of the third degree felony offense of unauthorized possession of a firearm by a felon. The court assessed punishment at imprisonment for twenty-five years. On appeal, appellant argues the evidence is insufficient to establish the finality of the felony conviction upon which the offense was predicated. Appellant also argues the State did not affirmatively link him to the firearm. Because we conclude the State failed to prove the finality of the conviction for the predicate offense, we reverse the trial court's judgment and render judgment of acquittal.
I. Background
After being dispatched to investigate a vehicle traveling 30 miles per hour on the interstate, the police discovered appellant in a van parked at a gas station. Appellant was sleeping in the second seat in the back portion of the van with his head behind the driver's seat. When the police awakened appellant, he stated that he was too drunk to drive and had consumed at least a six-pack of beer. Appellant was arrested for public intoxication. During an inventory of the vehicle incident to arrest, a small handgun was found in the front passenger seat. Appellant was charged with unlawful possession of a firearm by a felon in an indictment alleging he possessed a firearm before the fifth anniversary of his release from confinement following conviction of the offense of felony driving while intoxicated. The indictment included two enhancement paragraphs raising the offense to habitual status and increasing the punishment range to twenty-five to ninety-nine years or life in the penitentiary. The case was tried without a jury. At trial, the State relied on a 1999 felony conviction for driving while intoxicated as the predicate offense for the charge of unlawful possession of a firearm by a felon. To establish the predicate offense, the State offered a penitentiary packet showing appellant was convicted on February 26, 1999 of the felony offense of driving while intoxicated and sentenced to twenty years' imprisonment. The penitentiary packet did not contain a mandate or any information concerning appeal. The State also introduced a Certificate of Mandatory Supervision from the Texas Department of Parole dated December 27, 2006 (the "Certificate"). The Certificate reflected that appellant was released on parole after serving seven and one-half years of his twenty-year sentence. After the State rested, appellant introduced a notice of appeal for the predicate felony. The notice of appeal was dated March 26, 1999. The State did not object and the trial court admitted the notice of appeal into evidence. Both sides rested and closed the evidence on guilt/innocence and the State made opening final argument. The defense began by telling the trial court that because the notice of appeal had been offered into evidence and not rebutted by the State, no evidence proved the prior conviction was final. The State moved to reopen the evidence, and offered a copy of the mandate for the predicate offense. The trial court, apparently believing it could not reopen the evidence after final arguments began, denied the motion and the mandate was not admitted into evidence. The trial court ultimately found the State met its burden to establish a final conviction, thereby shifting the burden to the defense to establish otherwise. The court further found that the defense did not meet its burden. As a result, the court found appellant guilty of the offense as charged and sentenced him to twenty-five years' imprisonment. Discussion
In his first issue, appellant argues the evidence is insufficient to establish the finality of the predicate felony underlying his conviction. The State responds that "time and circumstances" lead to the inescapable conclusion that appellant's prior conviction was final. We disagree. To establish unlawful possession of a firearm by a felon, the State must establish that the predicate felony was a final conviction. See Tex. Penal Code Ann. § 46.04(a) (Vernon Supp. 2008); Cueller v. State, 70 S.W.3d 815, 820 (Tex.Crim.App. 2002). The State makes a prima facie case that a conviction is final when it offers a certified copy of the judgment and sentence. See Jones v. State, 77 S.W.3d 819, 822-23 (Tex.Crim.App. 2002). But if the presumption of finality is overcome, the State must proceed with proof of finality. See Fletcher v. State, 214 S.W.3d 5 (Tex. Crim App. 2007) (discussing prior convictions used for enhancement of punishment). The State does not dispute that it was required to prove a final conviction, but insists this burden was met. In support of its argument, the State maintains the Certificate demonstrates appellant served over seven years in the penitentiary and this effectively precludes the possibility that his case was reversed on appeal. In this regard, the State correctly asserts that a final conviction may be shown by a mandate or by any other means of proof showing disposition of the appeal. See Johnson v. State, 784 S.W.2d 413, 414 (Tex.Crim.App. 1990). But neither the finality of the judgment nor the disposition of the appeal necessarily follow from the fact that appellant served time in the penitentiary and was released to parole. Although it is possible the judgment was affirmed on appeal, it is also plausible that the appeal had not been resolved. Such uncertainty does not demonstrate finality beyond a reasonable doubt. Although the record before us includes the mandate attached to the motion to reopen, the mandate was never admitted into evidence. Even though the mandate showing the finality of the prior conviction issued from our court, we cannot take judicial notice of records from "other cases" to supply factual deficiency in a case before us. See Magic v. State, 217 S.W.3d 66, 72 (Tex.App.-Houston [1st Dist.] 2006, no pet.). To do so would impermissibly relieve the State of its burden to show the finality of appellant's conviction beyond a reasonable doubt. Id. The State did not request that we take judicial notice of the mandate, and we are not able to do so. See Turner v. State, 733 S.W.2d 218, 223 (Tex.Crim.App. 1987); Fletcher v. State, 214 S.W.3d 5, 9 (Tex.Crim.App. 2007). The trial court's denial of the State's request to reopen the evidence and allow admission of the mandate is not an issue before this court. See Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007). Therefore, we conclude the State failed to prove the finality of the prior conviction. Because the State failed to prove the finality of the predicate offense, it did not establish the offense of unauthorized possession of a firearm by a felon. See Tex. Penal Code Ann. § 46.04(a) (Vernon 2008); see also State v. Mason, 980 S.W.2d 635, 641 (Tex.Crim.App. 1998) (status as felon element of offense under section 46.04). Therefore, we reverse the trial court's judgment and render a judgment of acquittal for appellant.