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Click here for the full text of this decision FACTS:The appellant was arrested for possession of methamphetamine and oxycodone on July 13, 2001. He pleaded guilty to possession of a controlled substance (methamphetamine) on Dec. 18, 2003, and he was placed on community supervision. The next day, on Dec. 19, 2003, a jury convicted appellant of possession of a controlled substance (oxycodone). During the punishment phase on Dec. 20, 2003, the trial court, over objection, admitted a certified copy of a judgment of conviction for possession of methamphetamine on Dec. 18, 2003. At the close of the evidence at the punishment phase, appellant objected to the failure of the court’s charge to include an instruction to the jury on community supervision. Noting that the record contained the judgment for a felony conviction, the trial court overruled the objection. The jury then assessed punishment at nine years’ imprisonment and a $500 fine, and the trial court imposed sentence in accordance with the jury’s verdict. The court of appeals affirmed, holding that the trial court did not err in refusing to instruct the jury on community supervision because appellant failed to show that he did not have a previous, final felony conviction. Relying upon Jones v. State, 77 S.W.3d 819, 820 (Tex. Crim. App. 2002), the court of appeals held that a conviction is deemed “final” for the purpose of determining community supervision eligibility if there is no evidence that the defendant has filed a notice of appeal. Appellant contended that Jones is in conflict with Jordan v. State, 36 S.W.3d 871, 877 (Tex. Crim. App. 2001) (holding that a prior conviction is not final and cannot be used to deny appellant community supervision in the primary offense if appellant still has time to file a motion for new trial in the prior conviction case). Appellant argued that it is illogical that a defendant could suffer the adverse consequences of an underlying conviction that is regular on its face but later is retroactively nullified by the appellate process. Appellant urged that a conviction should not be final until the time for filing notice of appeal has expired or appeal is otherwise precluded by Article 44.02 of the Texas Code of Criminal Procedure. Because the time for filing a notice of appeal from appellant’s previous conviction case had not yet expired, appellant claims that his previous conviction was not final and that the court of appeals erred in upholding the trial court’s refusal to instruct the jury on community supervision during punishment. In response, the state suggested that, in the context of a conviction that is less than 30 days old, the defendant “holds his fate in his own hands”: He meets his burden by filing a notice of appeal and introducing it into evidence; the burden then shifts to the state to prove, beyond a reasonable doubt, that the conviction has been affirmed and mandate has issued. HOLDING:Reversed and remanded. “[I]n Jordan and the present case, whether the defendant took such action was not ascertainable at the time of judgment in the subsequent case because the defendant could still take such action in the future. Consequently, in the latter situation, the prior conviction must be deemed non-final because of the possibility that the court’s judgment could be retroactively vitiated by the mere filing of a motion for new trial or notice of appeal. Accordingly, the present case is controlled by Jordan.” OPINION:Keller, P.J. delivered the opinion of the court in which Price, Womack, Johnson, Keasler, Hervey, Holcomb and Cochran, J.J., joined.

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