Our cases on finality of convictions for enhancement purposes need some untangling, but I do not believe they are inconsistent. The term "final judgment" can have several different meanings in legal parlance, two of which are relevant here: (1) a judgment that is appealable, generally by virtue of disposing of all parties and issues, ⁽¹⁾ and (2) a judgment that is not subject to direct, nonextraordinary review, ⁽²⁾ the meaning applicable to the issue before the Court today.

The Court of Appeals relied on Rener for the proposition that the date of finality is the date the judgment was signed. ⁽³⁾ Rener was a variance case. The indictment alleged the date of a prior conviction as 1/11/60, when the trial court's judgment was signed. Rener claimed a fatal variance because the evidence showed that the date of mandate was 6/20/60. In holding that there was no variance, the Court relied on Goodale. ⁽⁴⁾ In Goodale, the date of mandate was alleged in the indictment. The Court held that there was a fatal variance between pleading and proof because the conviction was "final" on the date of sentencing.

These cases do not support the Court of Appeals's holding because they address the first meaning of finality, rather than the second. Those cases simply hold that, for purposes of describing the prior judgment in pleadings and proof, a prior judgment used for enhancement must be described by the date on which the case was disposed of at the trial level. ⁽⁵⁾ But the prior judgment must still satisfy the second meaning of finality to be eligible for use. An indictment might more clearly state, for example: "prior judgment, dated September 14, 1995, which subsequently became final before the commission of the instant offense" with the word "final" here carrying the second meaning of the term.

Neither is Jones v. State on point. ⁽⁶⁾ Jones held merely that if the State's proof of the prior conviction shows on its face that the conviction was appealed, the State must put on evidence that mandate has issued.

In Arbuckle v. State, the Court did address the issue before us. ⁽⁷⁾ The Court began its analysis by noting that, although the statute in question did not explicitly require a "final" conviction for enhancement, we had consistently done so. It was argued, however, that as long as the prior conviction became final (mandate were issued) before the return of the indictment in the new offense, the prior conviction could be used for enhancement. The Court resolved the issue by noting that the indictment charged that the defendant had been convicted of the old offense "prior to the commission" of the new. Because "conviction" meant "final conviction," there was a failure to prove the averment. Judge Lattimore dissented, relying upon the plain language of the enhancement statute and upon policy reasons for a different interpretation. While the policy arguments have some force, similar argument were rejected in our recent case of Jordan v. State, ⁽⁸⁾ and they are rejected today.

I join the Court's opinion, which reaffirms the holding in Arbuckle.

KELLER, Presiding Judge

Date filed: December 18, 2002

Publish

1. See Ex Parte Tarver, 725 S.W.2d 195, 199 (Tex. Crim. App. 1986); Hayes v. State, 495 S.W.2d 897, 899 (Tex. Crim. App. 1973); Ex Parte Renier, 734 S.W.2d 349, 365 (Tex. Crim. App. 1987) (Teague, J. dissenting).

2. See Renier, 734 S.W.2d at 365.

3. Rener v. State, 416 S.W.2d 812 (Tex. Crim. App. 1967).

4. Goodale v. State, 177 S.W.2d 211 (Tex. Crim. App. 1944).

5. The law no longer requires the pleading of enhancement convictions in the indictment, at least where they are not jurisdictional. See Brooks v. State, 957 S.W.2d 30, 33-34 (Tex. Crim. App. 1997).

6. Jones v. State, 711 S.W.2d 634 (Tex. Crim. App. 1986).

7. Arbuckle v. State, 105 S.W.2d 219 (Tex. Crim. App. 1937).

8. Jordan v. State, 36 S.W.3d 871 (Tex. Crim. App. 2001).