Ex Parte Montgomery
571 S.W.2d 182
Tex. Crim. App.
1978
Check Treatment

*1 In Miles v. Tex.Cr.App., 486 S.W.2d

326, the defendant’s by affidavit which he

agreed to the stipulation of testimony and

which was stated, admitted into evidence

“All the acts allegations in said indict-

ment charging the Passing as. True a Forged Instrument are true and

correct evident, therefore, . . . .” It is

that an affirmation of the indictment as

true and correct judicial will constitute a

confession sufficient to support judgment

of conviction.

Should judicial then a confession

that one committed an charged offense as

in the indictment and an in-court affirma

tion judicial of that confession constitute

compliance with requirement of Article does, V.A.C.C.P.? espe We believe it

cially since allegation there has been no

that the appellant copy was denied a fact,

indictment. In appellant here ad

mitted before the bench that she under with,

stood what she charged that she

did not want to hear the charges read to

her again, and judicial confessions

introduced the State were substantially

true and correct. Having concluded the

evidence to be sufficient for purposes of

Article supra, we overrule those con appellant

tentions of which in effect allege

the evidence to be insufficient to sustain

the judgment. generally York v.

Tex.Cr.App., 566 936. error,

There being no judg- reversible

ment is affirmed. Donald Gene MONTGOMERY.

No. 56718.

Court Texas, of Criminal Appeals

Panel No. 3.

Sept.

183 conten- supports petitioner’s record from burglary 1969 conviction tion that a County in Cause number purposes, for enhancement was twice used punish- initially enhancing petitioner’s for criminal in Travis ment as an habitual PHILLIPS, Before and VOL- ROBERTS 49,806, and then sub- number County Cause LERS, JJ. punish- enhancing petitioner’s sequently County a offender ment as second OPINION 49,807. Cause number prosecu law is clear PHILLIPS, Judge. prior same convic 12.42 the tions under Sec. This for writ of habeas is a defend be used to enhance tion cannot corpus pursuant filed to Art. V.A.C. life as an habitual ant’s C.P. Carva separate cases. See criminal in two Petitioner of a challenging validity is (Tex.Cr.App. 517 jal State, 529 v. S.W.2d conviction in Travis Cause number 182 1975); Friday, 545 S.W.2d parte Ex 49,807, wherein he plea was convicted on his State, 140 1977); v. (Tex.Cr.App. Gooden guilty to the court of the offense of (1940); 347, 177 145 S.W.2d Tex.Cr.R. aggravated assault, prior with a conviction 351, State, 145 v. 140 Tex.Cr.R. Gooden alleged V.T.C.A., for enhancement under (1940). It is the S.W.2d 179 Code, Penal Petitioner was twice prior that a conviction cannot be used (16) sentenced to serve a year sixteen term any cases. purposes for enhancement two of confinement in this case on November State, (Tex.Cr. 530 838 See Shaw v. S.W.2d 12, appeal 1975. No perfected in this 1976); White, App. parte Ex 538 S.W.2d cause. State, 1976); Rollins v. (Tex.Cr.App. 417 1976); Miller (Tex.Cr.App. Petitioner 542 163 filed an for writ of S.W.2d State, 406, court, v. 140 859 corpus habeas in the 139 Tex.Cr.R. S.W.2d alleging trial State, 339, (1940); Cothran v. 139 Tex.Cr.R. above-mentioned sentence was ex- State, cessive, (1940); Kinney v. 45 140 860 prior alleged since the conviction S.W.2d (1904). This 79 570 enhancement was barred for use as an Tex.Cr.R. S.W. subject rule is paragraph because this same conviction to enhance prior prior conviction use a had been used for enhance- not V.T.C.A., punishment as a second offender does ment in a case under Penal Code, preclude again using from 12.42(d), State the habitual criminal of a habitual conviction to affix status act. The trial court recommended that the White, Ex supra; application for criminal. See corpus writ of habeas 151 205 denied, parte Calloway, Tex.Cr.R. entering findings without fact State, (1947); 166 Tex. Mayo 583 v. and conclusions of law. S.W.2d (1957); 834 Head v. Cr.R. 314 S.W.2d The records before this Court reflect that State, (Tex.Cr.App. 1967); 419 375 S.W.2d 10, 1975, on petitioner November was con- State, (Tex.Cr. 493 145 Cleveland v. S.W.2d victed, plea guilty jury, on his of not to a App. 49,806, Travis aggravated with a deadly assault above-mentioned A review of all the weapon. punishment hearing At a before if a cases indicates that court, used for en were it cannot be proved successfully, two convictions used uses it unless again, for enhancement under 12.- hancement purposes showing appellant to be 42(d), subsequently Petitioner was If, first time. imprisonment a habitual criminal for the sentenced to a life term of hand, prosecution pending other presently and that conviction is on the enhanced, pri- then appeal successfully to this was not Court. 184 against procedure,

or conviction we hold that the may prosecu be used in a new such State, tion. Florez 479 S.W.2d 683 prior convic- estopped using State is from v. (Tex.Cr.App. 1972); Benedict v. 172 again in another case tion for enhancement (1962); Tex.Cr.R. 373 S.W.2d it for enhance- previously where it Brown v. 150 Tex.Cr.R. ment under the habitual criminal (1946); Cleveland v. su Code, Penal Penal Code. *3 pra, and cases cited therein. 12.42(d). Sec. bar, In the case at at the time of peti stated hold that For the reasons we petitioner’s 49,- conviction in Cause number number 16-year tioner’s sentence in Cause prior conviction had been used suc 49,807 excessive; however, the con is since cessfully for the petition enhancement of plea guilty to the viction resulted from a er’s sentence as a habitual criminal. As the court, assessing punishment, with the court notes, accurately particular dissent this fact be to appropriate remedy then the would situation has not been addressed for remand this case back to the trial court However, Court before. we differ on how range punishment assessment of within to “intelligently pass upon question be Bullard v. degree felony. a third fore us.” The rules concerning the use of (Tex.Cr.App. prior purposes convictions for of enhance ment, under the case law of this It is so ordered. demonstrate an attitude or philosophy that conviction can be utilized twice VOLLERS, dissenting. Judge, graduated in a say, situation. That is to it felony is once used to enhance a offender writ of habeas application This is an for offender, to the status of it a second can be 11.07, V.A.C. corpus to Art. pursuant filed again purposes for of enhancement to C.P. a habitual offender. It is noted that this validity of a challenges Petitioner graduated approach increasing results in in Travis November 1975 conviction potential punishments. question then 49,807, wherein he permitted becomes: to Should State guilty to the plea was convicted on his use a conviction for enhancement un assault, aggravated court of the offense of V.T.C.A., Code, 12.42(a) der Penal Sec. after County burglary a prior with has successfully State invoked the same under alleged enhancement prior conviction as part its effort to V.T.C.A., Code, petitioner’s enhance the Penal Pun- sentence under Sec. V.T.C.A., Code, 12.42(d)? Penal ishment, Sec. We 12.42(a), su- enhanced under Sec. think more is involved in our conclusion No pra, years. was assessed at sixteen cannot State take such action than appeal perfected in this cause. elevating pri- form over substance. Once a for writ of an Petitioner filed or conviction is obtain the utilized to maxi court, contending corpus habeas the trial mum automatic sentence available under using appellant’s the court was barred from Code, put our Penal it should be to rest. If peti- to enhance burglary conviction desires to maximize its use of offender tioner’s as a second convictions, prior felony accused’s it should 12.42(a), because the same supra, under Sec. prosecutions schedule its in accordance with been used prior burglary conviction had we find established rules law. Since 49,- County Cause No. previously no authority proposition for the that 806 to fix status as an habitual petitioner’s gen State should be allowed to violate the Code, Penal criminal under eral crimi by prosecuting as a habitual 12.42(d). The trial court recommended nal first and subsequently prosecuting then corpus be for writ of habeas as a second offender and we conclude that denied, findings of fact entering without pro the fair utilization of the enhancement visions of our Penal and conclusions of law. current Code dictate repeat offender under as a ing to enhance The records this Court reflect before 12.42. (a) of subsection petitioner was con- on November victed, jury, to a plea guilty on his of not situation fact particular this Apparently, 49,806, number of the Travis Cause this presented never before been has deadly aggravated assault with a which is cites no case Petitioner Court. requested Petitioner weapon. dis- and our research directly point punishment. court assess On November dispositive is case which closed no 1975, punishment hearing was conducted nec- therefore becomes It presented. issue petitioner’s the court and two before for the into the rationale to examine essary proved convictions were exception in order rule and its 12.42(d), under Peti- question before intelligently pass upon the a life subsequently tioner was sentenced to us. imprisonment term of and that conviction some 74 rule was laid down presently pending appeal to this Court. Kinney v. ago in the case of years *4 supports petitioner’s The record conten- support reasoning advanced in supra. The burglary tion that a 1969 conviction from was, first, of the absence proposition of the County in Cause number such dou- authority allowing any statutory purposes, was twice used for enhancement and, second, use would use, that such ble initially enhancing petitioner’s punish- jeopardy. principle of double violate the ment as an habitual criminal extensively criti- reasoning This has been 49,806, and on the However, Cause number cized in a number of cases.1 day, enhancing petitioner’s punish- quar- same three in force for has continued rule ment as a second offender in Travis It change. little century with ters of a 49,807. remaining The order of these rationale appears that record, by validity convictions is not shown but is that any for the rule with it controlling. penal is not code provisions of enhancement legislature with by the have been reenacted It well settled in Texas that a construction knowledge judicial of the a may conviction be used twice for enhance progeny its and given Kinney them in and ment if the first use is under been satis- body must have therefore (a), 12.42, (b) (c) subsection or V.T. Carvajal v. rule of law. fied with C.A., P.C. and the second is under subsec State, supra. v. supra; Brown (d) White, parte tion of that section. Ex (Tex.Cr.App. 1976); 538 417 was S.W.2d Carva rule exception The to the jal State, 517; parte v. 529 Ex Calloway, S.W.2d Cal espoused parte first in Ex loway, 90, 151 205 583 Tex.Cr.R. S.W.2d confronted also was This Court at that time (1947). exception previ- This is an to not had with a fact situation which success may convictions rationale for underlying ously arisen. The time. two- fully exception used for enhancement but one of the the establishment State, 500, First, 45 79 the two Kinney v. Tex.Cr.R. S.W. it was noted that pronged. (1904); parte Friday, question 570 Ex 545 S.W.2d were provisions in enhancement distinct, present dealing The with (Tex.Cr.App. 182 issue and entirely separate it punishments. ed facts of the case is wheth Then separate instant and distinct conviction could may er a be made do was noted that to habitual where the order of use is used for enhancement duty such double never be having after under Art. 63 V.A.P.C. being reversed: the first use to enhance status Art. 63 would Art. 62 that subsequent use be- been used under habitual status and jeopardy. 470, any way State, double g., Mayo involves ishment 1. See e. v. 166 Tex.Cr.R. State, (Tex.Cr. Calloway, (1957); parte 399 v. 544 S.W.2d 834 Ex Passmore 314 S.W.2d State, 1977) (dealing App. supra; with Sec. 196 Brown v. 150 Tex.Cr.R. (Tex. P.C.); (1946) (Opinion 940 Schultz v. 510 S.W.2d 819 on Motion S.W.2d penal Cr.App. 1974) (dealing Beauchamp, J.). Art. old Rehearing, with This Court code). pun- rejected the notion that enhancement trial court’s nullify substance over largely nullity, any become because in though case where the had result defendant committed action even the exact same three crimes and first had been a reverse could have been achieved with under Art. 62 to enhance we assessing This punishment? order second, there would not be available two decline to do. I dissent. should prior convictions to use for enhancement

under Art. having already first been up.” parte

“used Ex Calloway, supra. See

also, State, supra; Brown v. v. Mayo (1957).

166 Tex.Cr.R.

Although significant changes were made

in the in the new

penal this exception code2 has been carried Henry Tom MATHIS. suggested forward and it has that all been previous governing rules double use No. 57073. priors for enhancement will be the same Texas, Appeals Court Criminal under the new Carvajal code. v. Panel 3.No. supra; V.A.P.C., Practice Com mentary. Sept. Calloway laid down in cov presented underly

ers the facts here. *5 Here,

ing rationale is the in same. as Callo

way, we are dealing with two enhancement

provisions (12.42(a) (d)) and which are en fact,

tirely separate and distinct. In Calloway

articles construed were the in di predecessors

rect of the subsections in Calloway,supra;

volved here. See Ex

Sec. V.A.P.C. and Practice Commen addition,

tary. here, Calloway, In as in yield rule would illogical result. That result would be to 12.42(a) use of in a

nullify the case

where its would have been un

deniably proper timing had been

slightly petitioner different. To illustrate: 49,807 49,806

was sentenced causes day,

on the same apparently within minutes 49,806

of one In another. he was assessed a

life sentence based on the enhancement 49,807

provisions of 12.42(d). In he

was assessed a year sixteen term based on of Sec.

Can it be denied if the trial court had

chosen to assess cause 49,- assessing punishment in cause entirely jus

806 its action been would have falling

tified as within the rule, Calloway? laid I down

think it cannot. to exalt Are we then form Compare: V.A.P.C., (a)-(d)

2. subsections with Art. 61-65