MARVIN WAYNE MANNING, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00789-CR
 
MARVIN WAYNE MANNING,                        FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND KINKEADE
OPINION BY JUSTICE KINKEADE
JUNE 26, 1989
        Marvin Wayne Manning appeals his jury conviction of aggravated sexual assault. The jury assessed punishment, enhanced by a prior felony conviction, at sixty years confinement. Manning contends that the trial court erred in 1) finding the evidence sufficient to support a finding of "true" to the enhancement paragraph in the indictment; 2) failing to grant a mistrial due to the prosecutor's improper jury argument; and 3) finding that the State had used its peremptory strikes against jurors in a racially neutral manner. We agree with the first point of error, reverse the trial court's judgment and remand the case for a new trial.
        At the punishment phase of the trial, the State attempted to enhance Manning's sentence by proving a prior felony conviction in accordance with Texas Penal Code § 12.42 (Vernon 1974 & Supp. 1989). Manning pleaded not true to the enhancement allegation. The State was required to prove the prior conviction as alleged in the indictment, including the fact that it was a final conviction. White v. State, 681 S.W.2d 731, 734 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd).
        In an attempt to prove the prior conviction, the State produced a penitentiary packet which contained a judgment, sentence and fingerprint card purporting to show that Manning had been convicted of attempted murder on July 2, 1980. The pen pack was marked for identification purposes, but was never offered or admitted into evidence. Manning contends that, because the pen pack was never admitted, there is insufficient evidence of his prior conviction. However, Manning allowed a witness to testify about the pen pack without objection. The witness stated that Manning was the same person who had given the fingerprints contained in the pen pack. When the prosecutor asked for permission to summarize the pen pack, Manning's attorney stated, "No objections." The prosecutor then proceeded to discuss the pen pack with the jury. He also referred to it in his final argument. Manning did not object to the jury charge which referred to the prior conviction.
        When parties treat an exhibit as if it has been admitted into evidence, it is evidence. Swanson v. State, 722 S.W.2d 158, 161 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd). In Swanson, the trial court never formally ruled that an exhibit was admitted, but the prosecutor referred to it in his final argument without objection. The appellate court held that the exhibit was in evidence and the lack of an express statement by the trial court did not preclude the fact finder from considering it. Swanson, 722 S.W.2d at 161; see also Harden v. State, 417 S.W.2d 170, 174 (Tex. Crim. App. 1967) (photo considered in evidence when prosecutor exhibited it to jury and elicited testimony concerning its features without objection); Erwin v. State, 350 S.W.2d 199, 202 (Tex. Crim. App. 1961) (testimony read into record without objection tantamount to introduction of documents from which testimony taken). We hold that the pen pack regarding Manning's prior conviction was in evidence because the parties treated it as if it had been admitted.
        In order to use a prior conviction for enhancement purposes, the state must prove that the conviction is final. Cantu v. State, 510 S.W.2d 323, 324 (Tex. Crim. App. 1974). If the State fails to make a prima facie showing of finality, it has failed to carry its burden of proof and the conviction may not be used to enhance the defendant's sentence. Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986).
        In this case, the sentencing page contains the following notation: "Defendant excepts and gives his Notice of Appeal to Texas Criminal Court of Appeals at Austin, Texas this date." There is no indication in the pen pack of the outcome of the appeal. Thus, it appears from the face of the document that, at the time of trial, the conviction was on appeal and is not final. The State failed to make a prima facie showing of a final conviction for attempted murder. See Diremiggio v. State, 637 S.W.2d 926, 928-29 (Tex. Crim. App. 1982)(where pen pack notation showed sentence suspended, no showing that sentence revoked, and time of suspension not passed, state failed to prove final conviction). Therefore, although the pen pack was in evidence, the conviction for attempted murder could not be used to enhance Manning's sentence. We sustain the first point of error and remand the case to the trial court for a new trial. TEX. CODE CRIM. PROC. ANN. art. 44.29(b)(Vernon Supp. 1989).
        Manning also contends that, during voir dire, the State used its peremptory challenges in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Article 35.261 of the Texas Code of Criminal Procedure states:
                    (a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.
The clear wording of the statute provides that the relief available for racially-motivated peremptory strikes is the dismissal of the array of potential jurors. Manning never moved the trial court for a dismissal of the array. He only requested that the prosecutor give race-neutral reasons for his use of peremptory strikes against black veniremen. The prosecutor complied with that request. Manning received all the relief he requested. No further remedy is available under article 35.261 without a motion for dismissal of the array. We overrule Manning's third point of error.
        Because we sustained Manning's first point of error regarding the punishment phase of the trial, we need not address his second point of error concerning improper jury argument at the punishment phase. We reverse the trial court's judgment and remand the case to the trial court for a new trial. TEX. CODE CRIM. PROC. ANN. art. 44.29(b)(Vernon Supp. 1989).
 
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00789.F
 
 
File Date[01-02-89]
File Name[880789]