*1 requirement forgery on no complaint charging March We know of an in- of a properly presented is still dictment and filed must the indictment. She to also contain a certification to be large on this same bail bond. valid. V.A.C.C.P., provides: find contention We without merit. accused, felony, case of “When
is on the indictment is Ground error #3 is overruled. bail time presented, necessary to it is not serve judgment is affirmed. copy, with a but the clerk shall on him request copy to the deliver same counsel,
accused or his at the earliest possible time.”
Therefore, necessary it was not to bail, serve the was on with who copy a certified 30 Tex. indictment. Information, Jur.2d, BRANCH, Appellant, Indictment and Sec. Hamilton Further, p. nothing 543. we find record to indicate that the clerk refused Texas, Appellee. The STATE of appellant’s request copy for a of the indict No. 42109. ment nor understand the do we to so contend. The reflects that Appeals of Criminal of Texas. plea appellant to guilty her announced June ready trial, duly arraigned, sub Rehearing Denied Oct. sequently reading waived the formal indictment, and the trial was had. Infor- Tex.Jur.2d, Indictment and
mation, p. it is stated: Sec. copy objection
“An is not must be made before announce- correct any irregu- ready ment of larity copy in the when the waived proceeds calling accused trial without to thereto.” court’s attention If the with a served copy improperly indictment certified
to, it is not in us. we note the record before the indictment
On backside of con- tained (Certified in the record Hon. Ray Harris Hardy, District Clerk of presented been
County) shown have open by deputy court and filed printed Ray Hardy, said form certification such instrument. Such printed form R. contains name of Clerk, Lindley District but such form is in, not shown have been filled used or signed way. in any *2 Kegans, R. (On Appeal Sam Rea Joe Houston,
Only) appellant. Vance, Atty., Carol S. Dist. James Brough Ray Montgomery, C. Asst. Vollers, Houston, Attys., Dist. D. Jim Austin, Atty., State’s for the State.
OPINION
ONION, Judge. theft; punish- The offense ment, provisions of under the enhanced Ann.P.C., life. Vernon’s approximately record reflects that police a. m. on Houston officers observed Walden Schiebeck being an lights automobile without driven lot, Company. off a used car the A. Motor away high car driven at a rate speed running a red light. officers gave re- chase and after fifteen blocks apprehended ap- car and covered the pellant shortly accept- he had abandoned of enhancement to the after jury’s verdict at vehicle. the conclusion punishment. behalf, ap- Testifying in his own stat- taking admitted the automobile objection In absence to the court’s *3 purchasing an thinking of he was charge jury or receipt the ver- to of the m., after just at a. and decided automobile dict a claim of advances funda- “try the to out” drinking, he had been mental error. the despite car in the fact that question guilt stage at the Testifying the motor was dosed. company for prior admitted convictions (of automobiles) theft in 1961 grounds his first two In alleged and 1963 as he acknowledged and in its the trial court appellant contends had served time on both. further He testi- stage the charge penalty the at fied that at April the time of his arrest on jury find the failing require to to erred in for instant or he primary offense prior alleged that conviction the second had been prison out of for 14 after months con a final had become enhancement for the release on his conviction. Still of the to prior viction the commission further, a stipulation was entered that the assessing punish primary before offense prior second conviction offense was appel an habitual criminal. ment as prior committed after the first conviction charge nor objections the no to lant made awas final conviction. hearing At the on as requested charges presented any special punishment introduced, the State without 36.15, Ver required and by Articles 36.14 objection, copies certified 37.07, Sec. Article See non’s Ann.C.C.P. prison reflecting his 1961 and 1963 Nevertheless, appellant 3(b), V.A.C.C.P. convictions and including photographs and Regardless claims fundamental error. fingerprints and then rested. paragraph deficiency the any in claimed prior the relative to second charge Under these circumstances find we conviction, in an additional that we observe no specif merit in claims. We to required the the court paragraph ically reject appellant’s that evi claim (re that doubt beyond find a reasonable guilt dence at the stage pro offered of the “such prior convictions) ferring to ceedings cannot be considered deter as alleged” before occurred as convictions mining the to issue or issues be determined of life. sessing penalty stage proceedings. error. Grounds In Vessels find no fundamental We 432 S.W. See upon by are overruled. 2d relied of error #1 #2 there was no evidence offered V.A.C.C.P. and admitted at the guilt stage the proceedings could which con- #3 ground In of error be looked in establishing appellant’s submitting erred tends identity person previously as the so con purposes for the prior conviction second though immaterial, victed. Even Vessels had failed the State since of enhancement did not alleged involve of the bifurcated stage at either for enhancement but convictions offered to final awas such conviction show that prove the accused’s criminal record. the commission prior to conviction #6, #6, #3, Grounds of error #7 and #8 of error grounds offense. In primary are overruled. appellant contends #7, and #8 no evidence State offered person Next that that was he on that State Joyce failed to that A. as previously convicted so J. matter the owner of automobile submitting taken erred
the court rights search against unreasonable that on Joyce A. testified alleged. applicable holding is custody con- seizure. Such care, had ap- probable cause as where known there place of business trol fingerprints were City pellant’s arrest and the Company in the Motor A. J. the indict- return of long taken after the all the automobiles Houston and lot; ment. they possession in his were sale; the automobile purpose of error #5 Ground in excess of question value he had lot since had been on his $50.00 ap ground ninth of error ap- purchased the same from dentist right was denied claims he prior to the proximately months four the time of from assistance of counsel theft; ap- give the leged that he did not *4 15, July his until arrest on take the
pellant permission consent or days after indictment he was 1966,when 17 question. in Such evidence automobile ap appointed In the interim first counsel. clearly of disposes appellant’s ground examining an contends there was also error #4 which is overruled. See 2, The reflects May trial on Article V.A.C.C.P. ap the and the first date his arrest counsel,
pointment but remainder the appellant’s only by supported is as claim Appellant’s ground fifth fact, If, appellate complains appellant’s finger sertions his brief. of the use of examining he at without counsel was prints taken the “hold over tank” dur portion that trial we observe that no the actual trial and intro process of duced, at instant objection, stage of was offered the guilt over showing appellant and there is no that proceedings they matched to establish gave any up rights en auto or claimed defenses fingerprints lifted stolen from at a he against forceable him time when fingerprints appear mobile. to have represented by by was not counsel. Cf. Peter been taken sheriff at deputy a State, request attorney Tex.Cr.App., son v. 439 S.W.2d of the assistant district 841; State, State, Tex.Cr.App., v. 426 prosecuting Harrington Wilhelm case. v. 237, regard appellant’s S.W.2d 850. this has been de 424 S.W.2d upon Alabama, directly contrary v. 368 cided reliance Hamilton con 52, 114, 157, 82 is holding tention that U.S. 7 L.Ed.2d the accused’s Fifth S.Ct. misplaced. incrimi privilege against Amendment self
nation not under such circumstances At the at time of trial which Washington also violated. See represented he was convicted he been Tex.Cr.App., 434 138 and cases S.W.2d appointed either or retained counsel there cited. years. over two Appellant’s v. Mis- upon reliance Davis is Ground of error #9 1394, 22 sissippi, 394 U.S. 89 S.Ct. from appears It that conviction 676, misplaced. is Unit-
L.Ed.2d There the appeal prosecuted from Supreme that resulted Court held this ed States trial indictment. Fol- during upon a third petitioner’s taken fingerprints appellant’s original lowing the first dragnet petitioner procedure when fol- detained, briefly, granted motion new trial was questioned others were permit- charge lowing second trial court fingerprinted and released without his notice subsequent ted the to withdraw at a time there or taken when granted appeal and him new probable neither a nor cause warrant It (Article 40.09, V.A.C.C.P.). for his over ob- Sec. arrest inadmissible were trial, fol- appears at the first jection being violative of further that at his trial guilty, lowing and Fourteenth Amendment verdict Fourth punishment; involved the court assess convictions elected have leged not do deem State failed to one of enhancement. We them controlling. years as a at 10 assessed his Appellant’s ground of error #10 over- Article repeater provisions under the ruled. 62, V.A.P.C. judgment is affirmed. Therefore, lastly upon le- re-trial could have been ON APPELLANT’S MOTION gally than greater punishment assessed a FOR REHEARING years’ ten De- confinement in Texas partment if proper even Corrections BELCHER, Judge. proof of allegations were enhancement reurges ground now made. of error No. in that since this court’s case, Supreme affirmance of 63, V.A.P.C., which was of the United States decided North Caro for enhancement utilized the case bar Pearce, lin v. 395 U.S. 89 S.Ct. separate does not create (June 23 L.Ed.2d 1969), which the merely provides a more severe offense but *5 appellant requires a different re punishment prior proof on convic sult this case. State, alleged. Tex.Cr. tions Mullins v. State, 869; Beyer App., 409 S.W.2d v. appellant The felony for was indicted 279, 436; El 172 356 S.W.2d Tex.Cr.R. theft 63, enhanced under Article V.A.P.C. 406, State, S.W. lison v. 154 Tex.Cr.R. 227 At appellant’s trial the state first failed Further, prior 2d allegations as to 545. prove prior one of the two convictions do not constitute “counts” enhancement, and the Square State, Tex. the indictment. v. 145 years was assessed a 10 second offender. 219, State, 192; Beck Cr.R. 167 S.W.2d v. 1966, 2, On November granted 725; Tex.Cr.App., 420 Steward v. S.W.2d a motion appellant’s for new trial. At the 733; State, Bak Tex.Cr.App., 422 S.W.2d sentence; second a life received State, er Tex.Cr.App., 437 825 v. S.W.2d jury punishment. assessing the Mo- habit (concurring opinion). And where an tions for new trial were filed with- reversed, prior ual criminal conviction is however, drawn. court, The allowed the support convictions alleged can used to be appeal to withdraw notice of subsequent a prosecution being an habit granted another new trial. the On third ual primary criminal based on a different trial the appellant found guilty State, offense. v. 158 Tex.Cr.R. Johnson primary by jury, offense a 154, 253 1006. The true S.W.2d is same punishment in assessing the found that the a where mistrial declared. Benedict v. previously had been twice con- State, 570, 172 361 Tex.Cr.R. S.W.2d victed capital, than less why rea We know of no reason punishment assessed imprison- at life soning is applicable case at bar. ment from appellant appealed. which the recently Only v. Welcome Supreme United States Court in 99, we discussed Simpson 438 S.W.2d Rice, companion v. case to and applied the that a general rule convic Pearce, North Carolina v. supra, holds that tion aof offense lesser included bars increased sentences on retrial which are prosecution greater offense on a product the sentencing judge’s re- by trial though new obtained the defend taliatory motives or vindictiveness should ant at his nor instance. Neither Welcome imposed. not be this case Hamilton States, Green United 355 U.S. 78 v. Branch’s increased cannot be upon S.Ct. relied L.Ed.2d the result a retaliatory on motive sentencing judge because part accordance punishment, in jury. by the request, assessed
with Art. compliance with inwas The verdict 63, supra. finding there was retrial
At the second previously fact that felony offenses convicted been twice the evidence original while convic- prove failed one re- at the second finding Upon tions. evidence sufficient trial that there was felony convictions the two V.A.P.C., enhancement, Article leged for assessed required punishment be that the proof Thus, additional at life. there was Art. under second required supra, a definite Grimes, SO Salisbury 406 F.2d life. (Sth 1969). Cir. error No. 10 appellant’s ground also, Tex.Civ.App., See S.W.2d Nos. grounds *6 and are 3 and 4 have been reconsidered overruled. rehearing motion for et al., Appellants, INC. WINTERS,
M. C. et ux., Appellees. LAWLESS Jack W. No. 4318. Appeals Texas. Civil Eastland. Sept. Rehearing Oct. Denied