Cothren v. State

141 S.W.2d 600 | Tex. Crim. App. | 1940

GRAVES, Judge.

Appellant was convicted by a jury for a violation of the local option liquor laws of such county, and upon a pleading liquor laws upon a pleading alleging a former conviction for a similar offense; penalty, fine of $200.00.

There are three cases against the same defendant appealed to this court, and bearing our numbers 21133, 21134 and 21135. This No. 21133 being an appeal in the county court number 1784, number 21134 being an appeal in the county court number 1786, and number 21135 being an appeal in the county court number 1788.

It appears that appellant had been convicted in county court cause No. 1744 on November 4, 1938, as shown in Book 3, page 538, of the minutes of the San Saba County Court, and that such prior conviction was the one relied upon for an enhancement of punishment in this case. It also appears that such county court cause No. 1744 had been previously introduced and relied upon in county court cause No. 1786 for the purpose of an enhancement of punishment, such county court cause No. 1786 appearing before us at the present time as our cause No. 21134. This prior conviction can not be used but once for the purpose of an enhancement of the punishment. See Eddie Miller v. State, No. 20982, decided May 29, 1940, and not yet published. (Page 406 of this volume). It is evident, however, that the jury herein did use such county court cause No. 1744 for the enhancement of punishment in this cause in that they gave appellant a fine of $200.00, or double the lowest penalty. On account of the error in allowing such cause No. 1744 to be used the second time for the enhancement of the penalty, this judgment is reversed and the cause remanded.