Full Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-26-00063-CR CHARLIE LEON RHODES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 75th District Court Liberty County, Texas Trial Court No. 24DC-CR-001013 Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice Rambin Concurring Opinion by Chief Justice Stevens Concurring Opinion by Justice van Cleef MEMORANDUM OPINION A Liberty County1 jury convicted Charlie Leon Rhodes of unlawful possession of a firearm by a felon.2 See TEX. PENAL CODE ANN. § 46.04 (Supp.). The State alleged that, as a result of two prior felony convictions, Rhodes should be punished as a habitual offender. See TEX. PENAL CODE ANN. § 12.42(d) (Supp.). After Rhodes pled true to the State’s punishment- enhancement allegation, the jury assessed punishment at twenty-seven years and six months’ confinement. On appeal, Rhodes asserts that the evidence was insufficient to support punishment as a habitual offender. Rhodes asserts that a 2013 conviction used as the felony for felon-in-possession purposes precludes the use of 2015 and 2022 convictions for prior- conviction enhancement purposes. We affirm the trial court’s judgment. I. Background Deputy Stephen Earhart, with the Liberty County Sheriff’s Office, was on night patrol duty on November 26, 2024. From his stationary patrol vehicle parked alongside State Highway 321, Earhart observed an individual later determined to be Rhodes speeding on a motorcycle in Liberty County, Texas. Earhart accelerated to catch Rhodes, but even at ninety miles per hour, Rhodes was still pulling away. Earhart activated his emergency lights to make a traffic stop. 1 This appeal was transferred to this Court from the Ninth Court of Appeals pursuant to a Texas Supreme Court docket equalization order. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). Accordingly, we apply the precedent of the Ninth Court of Appeals in deciding this case to the extent that it conflicts with our own. See TEX. R. APP. P. 41.3. 2 We address Rhodes’s appeal of his conviction for evading arrest or detention with a vehicle in his companion appellate cause number 06-26-00064-CR. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (Supp.). 2 Rhodes went even faster. Throughout the chase, at speeds exceeding 110 miles per hour, Rhodes disregarded multiple traffic laws, including running stop signs and red lights. Trooper Corey Prantil, of the Texas Department of Public Safety, was on duty that night. He heard Earhart’s call for assistance and joined the ongoing effort to apprehend Rhodes. During the chase, Prantil observed Rhodes discard an item into the woods along the road. After the chase was over, Prantil reviewed his dash-camera footage, went to the spot where Rhodes had thrown an item into the woods, and retrieved a handgun. Rhodes appeals on one ground: that the evidence was insufficient to support the enhanced punishment assessed by the jury. II. Standard of Review This is a question we review for sufficiency of the evidence. Roberson v. State, 420 S.W.3d 832, 841 (Tex. Crim. App. 2013). Ultimately, it is a question of the hypothetically correct jury charge. See id. at 840–41. Generally, “a plea of true to an enhancement paragraph relieves the state of its burden to prove a prior conviction alleged for enhancement and forfeits the right to appeal the insufficiency of evidence to prove the prior conviction.” Id. at 838 (citing Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006)). But there is “an exception when the record affirmatively reflects that the enhancement itself was improper.” Id. (citing Ex parte Rich, 194 S.W.3d at 513). For example, even when a defendant pleads “true,” a felony conviction that is not final cannot be used to enhance for purposes of the habitual offender statute. Id. (citing Sanders v. State, 785 S.W.2d 445, 448 (Tex. App.—San Antonio 1990, no pet.)). 3 In Roberson, “the indictment’s enhancement paragraphs were erroneously listed in reverse chronological order on the face of the indictment.” Id. at 840. The indictment listed a 1991 conviction first, and a 1989 conviction second. Id. at 835. Roberson asserted, “[B]ecause of this factual and chronological impossibility, it was improper for her to be sentenced with a punishment range of twenty-five to ninety-nine years or life in prison as a habitual offender.” Id. at 836. The court held that Roberson’s “legal claim concerns the sufficiency of the evidence of the enhancement allegations.” Id. at 837. The sufficiency of the evidence is reviewed by using “a hypothetically correct jury charge . . . that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the state’s burden of proof or unnecessarily restrict the state’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. at 840. III. Analysis Rhodes does not contest that he was finally convicted of a felony in 2015, committed a new offense, and was then finally convicted of another felony in 2022. Instead, he asserts that these convictions do not count for purposes of “previously been finally convicted of two felony offenses,” because, though he possessed the firearm in November 2024, the indictment alleged that he was a felon for felon-in-possession purposes because of a 2013 conviction. See TEX. PENAL CODE ANN. § 12.42(d) (“[I]f it is shown on the trial of a felony offense . . . that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction 4 having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than [ninety-nine] years or less than [twenty-five] years.”). The question Rhodes raises has already been answered by the Texas Court of Criminal Appeals: “[T]he commission of the offense and the formation of appellee’s criminal intent came together on the alleged date upon which appellee, a felon, possessed the firearm, and not upon the date in 1991 when appellee became a felon.” State v. Mason, 980 S.W.2d 635, 640 (Tex. Crim. App. 1998).3 Thus, for purposes of “on the trial of a felony offense,” in Section 12.42(d) of the Texas Penal Code, the date of the offense is November 26, 2024. See Roberson, 420 S.W.3d at 839 (quoting TEX. PENAL CODE ANN. § 12.42(d)). We overrule Rhodes’s point of error. IV. Conclusion We affirm the judgment of the trial court. Jeff Rambin Justice 3 Rhodes’s reliance on Ex parte Miller is unavailing. See Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App. 2009) (orig. proceeding). Ex parte Miller dealt with an assertion of ineffective assistance of counsel where the State had failed to put on evidence of the statutorily required sequence of convictions. See id. at 624. 5 CONCURRING OPINION On appeal, Rhodes argues that because the State used his 2013 felony conviction to support Rhodes’s status as a felon for purposes of his unlawful possession of a firearm by a felon charge, the State could not use Rhodes’s subsequent 2015 and 2022 felony convictions to enhance his status to habitual offender. See TEX. PENAL CODE ANN. § 12.42(d) (setting forth the requirements of the chronological sequence of events necessary to prove habitual felony status). The indictment alleged that Rhodes, having been previously convicted of felony theft in 2013, intentionally, knowingly, or recklessly possessed a firearm. The enhancement paragraph alleged that prior to knowingly possessing a firearm as a felon, Rhodes was finally convicted of a separate felony offense in October 2015. The indictment next contains a habitual offender paragraph in which it states that Rhodes, prior to the felon in possession of a firearm charge and after his October 2015 conviction, was finally convicted of a felony offense in August 2022. At the beginning of the punishment phase, Rhodes pled true to the enhancement and habitual offender paragraphs. The State informed the jury during its opening statement that this subjected Rhodes to a punishment range of “[twenty-five] to life.” At the conclusion of the punishment hearing, the jury sentenced Rhodes to twenty-seven years and six months’ incarceration. As Justice Rambin’s opinion points out, Rhodes does not contest that he was finally convicted of a felony in 2015, committed a new offense, and was then finally convicted of another felony in 2022, both prior to his 2024 conviction for felon in possession of a firearm. Instead, Rhodes argues that, because the State relied on his 2013 conviction to prove his felon 6 status in relation to his 2024 charge, the State cannot use the 2015 and 2022 convictions to support the sequential nature required in Section 12.42(d). To establish habitual offender status, the State must prove the following sequence of events: “(1) the first [felony] conviction becomes final; (2) the offense leading to the later [felony] conviction is committed; (3) the later [felony] conviction becomes final; [and] (4) the offense for which [the] defendant presently stands accused is committed.” Jordan v. State, 256 S.W.3d 286, 290–91 (Tex. Crim. App. 2008) (quoting Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987)) (citing Valdez v. State, 218 S.W.3d 82, 84 (Tex. Crim. App. 2007)). “The State [bears] the burden of proving beyond a reasonable doubt that a defendant’s second previous felony conviction was [for an offense] committed after [his] first previous felony conviction became final.” Id. at 291. (citing Tomlin, 722 S.W.2d at 705). “[W]hen ‘there is no evidence to show that the offenses were committed and became final in the proper sequence, the defendant’s sentence may not be enhanced under the State’s habitual offender statute[].’” Id. (quoting Tomlin, 722 S.W.2d at 705). In Mason, the Texas Court of Criminal Appeals held that although a defendant’s status as a felon is an element of the primary offense, the date of his prior conviction is not considered an element of the offense. Mason, 980 S.W.2d at 641. The Texas Court of Criminal Appeals stated, “[T]he commission of the offense and the formation of appellee’s criminal intent came together on the alleged date upon which appellee, a felon, possessed the firearm, and not upon the date . . . when appellee became a felon.” Id. at 640. Accordingly, for purposes of “on the trial of a felony offense,” in Section 12.42(d), the date of the offense is November 26, 2024. See 7 TEX. PENAL CODE ANN. § 12.42(d); Mason, 980 S.W.2d at 640. Thus, the record before us indicates the State proved the following sequence of events: (1) the first felony conviction as alleged in the enhancement paragraph became final in 2015; (2) the offense leading to the later felony conviction was committed; (3) the later felony conviction as alleged in the habitual offender became final in 2022; and (4) the offense for which the defendant stood accused in the indictment was committed in 2024. As a result, because the State met its burden of proof, I believe that the jury’s sentence was based on sufficient evidence. For these reasons, I concur with the result of Justice Rambin’s opinion. Scott E. Stevens Chief Justice CONCURRING OPINION I concur with the analyses of both Justice Rambin and Chief Justice Stevens and join in the result. Charles van Cleef Justice Date Submitted: August 5, 2026 Date Decided: August 31, 2026 Do Not Publish 8