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Click here for the full text of this decision FACTS:The appellant, Steven Alexander Menefee, was indicted for second-degree robbery. The state alleged Menefee had a prior conviction for felony theft, raising his range of punishment to that for a first-degree felony. Following the jury’s guilty verdict, Menefee pled “true” to the enhancement allegation and stipulated to the prior conviction. He was sentenced to 25 years confinement in the Texas Department of Criminal Justice, Institutional Division, and fined $10,000. HOLDING:The court affirms the conviction and reverses and remands for a new punishment hearing. Menefee contends that the evidence proving he committed theft of property was factually insufficient and that he received ineffective assistance of counsel, because his “trial counsel” failed to investigate and discover that the prior conviction used to enhance his sentence was an unrevoked probated sentence. Reviewing all of the evidence in a neutral light, the court finds that it cannot conclude that the proof of Menefee’s guilt is so obviously weak as to undermine confidence in the determination of the jury, nor can the court conclude that the proof of guilt is greatly outweighed by contrary proof. The court finds that Menefee’s own conduct was sufficient for the jury to find him guilty of robbery beyond a reasonable doubt. Because the court holds that the evidence is factually sufficient to support the jury’s verdict, the court overrules Menefee’s fifth issue. The legal standard applicable to an ineffective assistance of counsel claim is set out in Strickland v. Washington, 466 U.S. 668 (1984). Menefee must first show trial counsel’s performance was deficient. Second, Menefee must show that this deficient performance prejudiced his defense. The court states that the first Strickland prong requires it to decide whether Menefee has shown trial counsel’s performance was deficient. The record indicates trial counsel allowed Menefee to plead true and stipulate to the enhancement allegation. Menefee pleaded true to the enhancement allegation and stipulated that on April 12, 2002, he had been convicted of a felony theft. But the court pointed out that the theft conviction had not become final before the commission of the primary offense and therefore could not be used to enhance Menefee’s punishment. Because counsel allowed Menefee to plead true and stipulate to the prior conviction, the court found that Menefee lost the ability to appeal his sentence based on the sufficiency of the evidence used to enhance his punishment. The court holds that trial counsel had a duty to research Texas enhancement law, investigate Menefee’s case, and prevent Menefee from pleading “true” to the enhancement allegation. The court therefore finds that trial counsel’s performance fell below an objective standard of reasonableness as a matter of law. Under Strickland’s second prong, whether trial counsel’s deficient performance prejudiced Menefee’s defense, the court finds a reasonable probability that had trial counsel advised Menefee to plead “not-true” to the enhancement allegation, Menefee would have either received a sentence within the punishment range allowed for second-degree robbery, or he would have been able to challenge any sentence outside of the punishment range based on insufficient evidence. The court concludes that counsel’s performance was deficient in the punishment hearing and Menefee was prejudiced by counsel’s deficient performance. OPINION:Horton, J.; Gaultney, Kreger and Horton, JJ.

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