HELP!! I am writing a response to an appeal that alleges that the jury's finding on an enhancement paragraph is void because no mandate was issued to prove the appeal was final. Does anyone have a case in which a court has held that to be harmless error?

Sorry, but I am not aware of any case which declares a Jones error, 711 S.W.2d 634, 636 to be harmless. See also Jones, 77 S.W.3d 819.

It's not a matter of voidness. The issue is whether the state met its burden of proving beyond a reasonable doubt that the defendant was finally convicted of a felony before the commission of the new offense for which he was put on trial. If the judgment put into evidence by the state contained notice of appeal, then the net result is to leave the jury with the impression that the case is not yet final. For all the jury knows, an appellate court is still considering the appeal.

A mandate from the appellate court must also be introduced into evidence to complete the proof that the prior felony conviction is final. In the absence of that proof, the state failed to meet its burden. And so it goes.

There has never been a harmless error rule applied to the issue of sufficiency of the evidence. A defendant also never has to object to the insufficiency of the evidence. The state simply has to meet the constitutional burden of beyond a reasonable doubt.

Tarence Fletcher, Nos. PD-1809-05 & PD-1810-05(Tex. Crim App. 1/31/07). This 9-0 opinion basically says State loses if there is evidence an enhancement is on appeal and the State fails to offer the mandate. Fletcher

We pointed out some changes in jeopardy law and some good policy reasons for why a court should be able to check its own records to see if the appeal was final, but the Court said no.

Take this one step further. The pen packet shows notice of appeal given and a date. It also shows mandate received and a date. Is this enough to show finality. Mandate doesn't show affirmed.

I would think so. Unless the records show that the defendant was released when the mandate was issued, any reasonable jury could presume that the appeal was denied.