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Click here for the full text of this decision FACTS:Tarence Fletcher was charged with delivery of less than one gram of cocaine and possession of more than four grams of cocaine. Both charges alleged two prior felony convictions for enhancement purposes. Fletcher pled not guilty and proceeded to a jury trial. The jury found him guilty on both charges. At the punishment phase, Fletcher pled not true to the first enhancement paragraph in each indictment, which alleged that Fletcher had a prior conviction for possession of cocaine, a controlled substance. To prove that conviction, the state offered a penitentiary packet into evidence. Although the packet included the judgment from the conviction, it also showed that Fletcher had given notice of appeal. The state failed to enter any proof of the finality of the conviction. But the trial judge found the enhancement paragraphs to be true and sentenced Fletcher to 35 years of confinement in the delivery case and 50 years of confinement in the possession case. Fletcher appealed both convictions to the 5th Court of Appeals alleging, among other things, that the evidence was “legally insufficient to support a finding of true to the first enhancement paragraph in each indictment.” In response, the state included in its brief to the 5th Court a copy of the mandate issued in regard to the enhancement conviction and requested that the court take judicial notice of it. The 5th Court took judicial notice of the mandate, stating, “If we were to remand this case to the trial court for reassessment of punishment, the State would introduce the mandate they produced with their brief in this appeal . . . .” The court concluded, that remanding the case “would be useless” and that “[t]he law does not require a useless thing to be done.” The Court of Criminal Appeals (CCA) granted review to determine whether the 5th Court erred in taking judicial notice of a mandate issued in another case by the same court of appeals. HOLDING:Reversed and remanded. Although the 5th Court claimed that remanding Fletcher’s case would be useless, the CCA disagreed. Fletcher, the court stated, might allege and prove that the mandate had been recalled as permitted under Texas Rule of Appellate Procedure 18.7 or that he was not the individual named in the mandate. The CCA’s holding, it stated, is supported by a defendant’s right to rebut the state’s prima facie showing of finality. The CCA stated that it would not permit the state to relieve its burden by requesting that a court of appeals take judicial notice of a mandate, even if issued by that same court, where the state had the opportunity to introduce that mandate at the punishment phase. To do so, the court stated, would not only deprive a defendant of the opportunity to rebut the state’s evidence, but would also allow the state to circumvent its burden at trial. OPINION:Keasler, J., delivered the opinion for a unanimous court.

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