Alvarez v. State (1971)

In Alvarez v. State, 472 S.W.2d 762 (Tex. Crim. App. 1971), the indictment charged possession of heroin in the first count and sale of heroin in the second count. The first enhancement paragraph alleged a final felony conviction that had occurred before the offense charged in the first count. Id. The second enhancement paragraph alleged a final felony conviction that had occurred before the offense charged in the second count and prior to the offense charged in the first count. Id. At trial, the State abandoned the first count in the indictment. Id. The jury found the defendant guilty of sale of heroin as alleged in the second count and later found the two enhancement paragraphs true. Id. The court of criminal appeals reversed the trial court's judgment, concluding the State did not prove two prior sequential felonies as required by the relevant punishment statute. See Alvarez, 472 S.W.2d at 763-65. In Armstrong, the indictment's first count charged the offense of burglary of a private residence at night and ordinary burglary in the second count. See Armstrong, 340 S.W.2d at 500. The enhancement paragraph in the indictment alleged that, prior to the commission of the nighttime burglary, the defendant had been previously convicted of two prior felonies. Id. The count charging nighttime burglary was not submitted to the jury, and the defendant was only convicted on the ordinary burglary charge. Id. The enhancement paragraphs were found true, and the defendant was sentenced as a habitual offender. Id. The court of criminal appeals reversed the trial court's judgment, holding the indictment did not give notice the State sought enhancement on the ordinary burglary count. Id.