If a defendant appeals a conviction, when it is considered final for the purpose of using it in the enhancement of a subsequent offense?

When the mandate issues from the appellate court.

But, the fact of the conviction may still be relevant (admissible) under art. 37.07 sec. 3, even though the appeal is pending, to "enhance" the punishment assessed by the jury (although arguably not as proof in itself that the conduct was committed beyond a reasonable doubt) .

Yes, the conviction is final on the date the appellate court issues a mandate, which is nothing more than a order notifying everyone that the appeal is really, really over. The mandate is not the date the appellate court issues its opinion, because there could be appeals of that decision.

Martin, while 37.07 would allow a prosecutor to put on evidence that a defendant committed the crime underlying the appeal, I do no believe it would permit a prosecutor to put on evidence of the conviction, as that is not a final decision until mandate issues. So, the prosecutor would have to retry the underlying offense during the punishment stage rather than simply put a pen packet into evidence.

I guess I have to disagree that finality has anything to do with relevance. That a jury already found the defendant to have committed the offense beyond a reasonable doubt seems quite relevant; finality seems to go to the weight of the evidence. Thus, the rule that "a judgment is final for the purposes of issue and claim preclusion despite the taking of an appeal." Scurlock Oil Co. v. Smithwick, 724 S.W.2d at 6.

Well, I'll tell you what, Martin. The rest of us will stay back while you go on ahead and offer into evidence the results of a jury verdict while it is on appeal, if you can even convince a trial judge of your theory. Meanwhile, I'm gonna avoid a reversal by simply letting the victim tell the jury what happened during the extraneous bad act or crime, see article 37.07.

I feel like this thread should have one of those warnings we see during some of those shows where people do weird stuff to get on TV: do not attempt this yourself.

I am not suggesting that the judgment alone be used to prove the prior conduct- merely that it, or what it represents, should be admissible. Surely you agree that the prior decision of the jury would tend to make the existence of a material fact more probable than it would be without the evidence. The interpretation of "convicted" in 12.42 should not infect the meaning of "relevant" in 37.07. I do not know whether I will have to actually rely on this theory or not, but I do know that if everyone just "stayed back" the appellate courts might have little to do. Besides, all I wanted to do was add a little color to our first Forum pop quiz.

OK, setting aside your theory on relevancy, how do you scoot around Rule 803(22), which says, rather unambiguously:

"In all cases, the pendency of an appeal renders such evidence inadmissible."

You prove up the fact of the conviction by someone with personal knowledge of the conviction, rather than rely on hearsay.

Here is a question that seems related to John's first quiz question. What date should be alleged in the enhancement paragraph? Article 12.42 uses the language "previously been finally convicted." Should the date of the actuall conviction be alleged or should the pleading allege the date that the conviction "became final?"

I think the mandate is retroactive so that there is no problem with alleging the date the sentence was imposed. But, in theory, you are actually using the judgment of the appellate court to prove both the conviction and the finality, and thus the date that judgment becomes final would also be entirely appropriate. You should never end up with a variance or lack of notice problem regardless of which date you choose.

Thanks for your reply Martin. I have had this question presented to me before and have decided that it doesn't make any legal difference what date is alleged as long as the defendant is given fair notice of which conviction the State intends to prove up. But the statutory language does seem to cause confusion. When asked this in the past, I have suggested alleging the date stated on the judgment as the date of conviction. It may not have been "final" on that date; but that way, as long as the evidence otherwise shows the conviction to be final, the jury will see that the date alleged is the same date stated on the judgment.