Danny Marx DINGLER, Appellant, v. The STATE of Texas, Appellee.
No. 0285-87
Court of Criminal Appeals of Texas, En Banc.
April 5, 1989
768 S.W.2d 305
W.C. DAVIS, Judge.
intentionally and knowingly cause the death of Melvin E. Melton ... by shooting [him] with a firearm.
It is further presented that in Harris County, Texas, [applicant] ... did ... intend to cause the death of [Melvin E. Melton] ... and did cause the death of [Melvin E. Melton] by intentionally and knowingly committing an act clearly dangerous to human life, namely, by shooting [him] with a firearm.
We hold a proper affirmative finding was made in this case under the dictates of Polk v. State, 693 S.W.2d 391 (Tex.Cr.App. 1985). In Polk, supra at 396, we held that where the jury is the trier of fact the trial court properly enters an affirmative finding of the defendant‘s use of a deadly weapon during commission of the offense where a firearm is specifically pled in the indictment and the jury finds the defendant guilty “as charged in the indictment.”
The indictment in this case pled “firearm“, and the court‘s charge to the jury authorized a conviction for murder upon a finding that applicant caused the death of the victim by shooting him with a firearm. The jury‘s verdict at guilt/innocence did not refer back to the indictment but found applicant “guilty of the offense of murder.” The verdict at punishment, however, stated in part:
We, the Jury, having found the defendant guilty of the offense charged in the indictment, ...
Under our recent decision in De Anda v. State, 769 S.W.2d 522 (Tex.Cr.App.1989), this constitutes an affirmative finding by the jury. Thus, applicant is denied relief.
We will reform the judgment in this cause, however, to reflect that the jury, not the trial court, made this affirmative finding since the jury was the trier of fact. See Polk, supra. A copy of this opinion shall be forwarded to the Texas Department of Corrections and to the Texas board of Pardons and Paroles. It is so ordered.
CLINTON and TEAGUE, JJ., dissent.
Hunter B. Brush, Tyler, for appellant.
Jack Skeen, Jr., Dist. Atty., Ann M. Monaco, Asst. Dist. Atty., Tyler, Robert Huttash, State‘s Atty., and Carl E.F. Dally, Sp. Asst. State‘s Atty., Austin, for the State.
OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
W.C. DAVIS, Judge.
We granted the State Prosecuting Attorney and District Attorney petitions to review whether the Court of Appeals misconstrued Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980), in holding that the pen packets had not been properly certified and authenticated under the provisions of
Appellant was convicted in a bench trial of the unauthorized use of a motor vehicle, after pleading guilty.
State‘s exhibit number two contains copies of the judgments and sentences in Cause No. B-5691 on the docket of the 161st District Court of Ector County, styled the State of Texas v. Danny Marx Dingler, showing the named defendant was convicted of “passing as true a false and forged instrument in writing” and Cause No. A-5956 on the docket of the 70th District Court of Ector County, styled the State of Texas v. Danny Marx Dingler, showing that the named defendant was convicted on May 8, 1972, of “theft of corporeal personal property over the value of $50.00.” The trial court found cause numbers B-8581 and A-5956 true yet only used cause number A-5956 as enhancement in assessing punishment at fifteen (15) years and one day imprisonment. As the appeals court points out, the record reflects a great deal of confusion was generated at sentencing due to the oral pronouncement by the trial judge that he was only using “Count two” (A-5956) as enhancement.
The appeals court consequently reversed the conviction and remanded the case to the trial court for a new punishment hearing.
The records in both exhibits were duly attested by S.O. Woods, Jr., certified to be the records clerk of the Texas Department of Corrections (TDC) by Ralph A. Davis, Jr., County Judge of Walker County, Texas, as required by
We have considered the issues raised in the case and the Court of Appeals’ disposition of those issues. Now, it appears that the decision to grant discretionary review was improvident; therefore, the State‘s petitions for discretionary review are hereby dismissed pursuant to
IT IS SO ORDERED.
TEAGUE and WHITE, JJ., concur in the result.
McCORMICK, Presiding Judge, dissenting.
“It is common knowledge that the Department of Corrections does not admit convicted defendants without certified copies of a judgment and a sentence duly certified to by the district clerk where the conviction was obtained and they then become part of the inmate‘s official record at the Department of Corrections.” Blakes v. State, 634 S.W.2d 319 (Tex.Cr.App.1982).
Since the issue presented here is not the admission of the judgments or sentences, but instead concerns the admissibility of “pen packets,” I must dissent. The rule set forth in Blakes, supra, has been followed without question until today. The majority should at least consider Blakes and pay it a proper farewell.
Without elongating this dissent, I merely refer the majority to the following cases which, under circumstances like those present in the instant cause, the rule of Blakes has been followed: Garza v. State, 705 S.W.2d 818 (Tex.App.—San Antonio, 1986); Chesteen v. State, 712 S.W.2d 553 (Tex.App.—Houston [1st Dist.], 1986); and Johnson v. State, 720 S.W.2d 877 (Tex.App.—Texarkana, 1986). See also: Grogan v. State, 713 S.W.2d 705 (Tex.App.—Dallas, 1986); Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980); Thornton v. State, 576 S.W.2d 407 (Tex.Cr.App.1979); and Jones v. State, 449 S.W.2d 277 (Tex.Cr.App.1970).
Such departure from settled precedent by the majority requires me to respectfully dissent.