I have a general question about the punishment phase, if the defendant was convicted on priors but is now appealing them, can the state still use certified copies of those convictions in the punishment phase? If not how do we prove them up?
Prior convictions must be final to prove them up with pen packets. Final means that the time period for filing a motion for new trial and appeal has passed or the mandate completing the appeal has issued, thereby affirming the confiction.
Of course, you could still prove up the prior misconduct as an unadjudicated bad act. You just can't prove it up with paper.
Strangely, the court of criminal appeals says the jury can be told by the defendant of the sentence given by a jury, even if it is not final. That seems to contradict the above.
There is support for the idea that 37.07 no longer requires that the prior conviction be final. Lavinge v. State, 64 S.W.3d 673 (Tex.App.--Houston [1 Dist.] 2001 no pet.); Williams v. State, 976 S.W.2d 330, 332 (Tex.App.-Corpus Christi 1998, no pet.)(evidence of the defendant's prior criminal record no longer needed to be limited to final convictions). Williams seems to involve your situation.
It not clear whether these cases are just saying this stuff can come in under the "unadjudicated offfense" provision -- in which case the notice and jury instruction requirements would trigger.
For what its worth, I think criminal record in 37.07 still means final conviction. See Code Crim. P. 37.07, sec. 3(g).
If, by chance, the defendant pleaded guilty in the prior proceeding, I believe any incriminatory statement he made would be admissible against him, even though he may have appealed from the resulting conviction. Likewise, if he happened to testify, say during the punishment phase of the prior proceeding, that testimony should be admissible against him.
