Burleson v. State

In Burleson v. State, 935 S.W.2d 526 (Tex. App.--Waco 1996, no pet.), appellant draws our attention to the Waco court's conclusion that if any element of an offense under Tex. Penal Code section 46.04, including the element "has been convicted of a felony," occurred before the effective date of the statute, the statute does not apply. See Burleson, 935 S.W.2d at 528. However, the Burleson court reversed the trial court, not only because of the court's determination regarding the date of the conviction, but also because the pre-1994 version of the statute governed the prosecution. See id. Because the old statute controlled, the State was required to allege and prove defendant's prior conviction involved violence or a threat of violence. See id. Because the indictment did not contain such an allegation, the court concluded the indictment was deficient, and held the trial court erred in overruling Burleson's motion to dismiss. See Burleson, 935 S.W.2d at 528-29.