Johnson v. State
725 S.W.2d 245
Tex. Crim. App.
1987
Check Treatment

*1 245 quittal. Villanueva v. (Tex.App. 1986).

739 Antonio —San ground

The State raises one for review. agree with the Court of required.

reversal in their stated, the San Antonio Court appellant may, however,

“The be retired

for the lesser included offense of theft.” every

As is true in case where discretion-

ary refused, review is this refusal does not adoption

constitute or endorsement

language reasoning employed or by Appeals. Court of v. Sheffield (Tex.Cr.App.1983).

S.W.2d 813 understanding,

With this we refuse the petition discretionary

State’s for review.

McCORMICK, J., grant would petition

State’s for discretionary review.

DUNCAN, J., participating. JOHNSON, Appellant,

Archie

v. Texas, Appellee.

The STATE of

No. 1218-85.

Court of Criminal

En Banc.

Feb. (court appointed appeal),

Steve Laird Worth, Alley, appellant. Richard Fort Atty. Curry, Tim Dist. and C. Chris Mar- shall, Richards, & David Sharen Wilson Gill, Worth, Attys., Dist. Fort Bob Asst. Huttash, Austin, Atty., Robert State’s the State. *2 prima showing prior

make a facie of a valid despite conviction the inclusion of a valid judgment and sentence. OPINION ON STATE’S PETITION FOR The State contends that Hankins v. DISCRETIONARY REVIEW State, (Tex.Cr.App.1983) 646 S.W.2d 191 DAVIS, Judge. W.C. (opinion rehearing) directly point supports their contention that jury appellant A convicted of unautho- lant has the burden to show there was not vehicle, rized use of a motor found the a valid transfer party order since is the true, allegation enhancement to be and as- collaterally attacking the conviction. In punishment sessed at confinement in the Hankins, supra, the defendant attacked Department Texas fif- Corrections for prior the admission of out-of-state convic- years. teen The Court of for guilt-innocence tions introduced at Supreme Second Judicial District reversed trial, phase contending that he fif- was appellant’s conviction, holding that teen at the time of conviction and that the prove prima State failed to a facie case as juve- record contained no from certification validity prior to the used conviction felony Appellant nile court to adult court. for enhancement. The Court held that the support offered no evidence in of his con- evidence showed a void conviction because tention. We held that in this collateral appellant it showed juvenile was a and did proof upon attack the burden of was not show a valid transfer order to the dis- petitioner and that since the defendant did trict court. Johnson v. any not offer proof of his contention that (Tex.App.-Ft. 1985). grant- 507 Worth void, the convictions were the convictions petition ed the discretionary State’s re- upon proof. were valid the State’s view determine whether the State had proof the burden of a show valid trans- The State also cites Acosta v. 650 prove prior fer order in order to a convic- (Tex.Cr.App.1983) authority. S.W.2d 827 as tion, appellant or whether had that burden Acosta, supra, alleged the State two collaterally prior when he attacked the con- prior out-of-state convictions enhance- viction. judgments ment and introduced which upon showed convictions informations. appellant At objected prior trial that the there was no defendant contended that was void because he was a minor and, therefore, at the time waiver of indictment shown prior he committed the offense proper transferring they and a since order the case convictions were void were juvenile upon from felony court to an adult court based informations. We discussed “pen packet” upon supra, was not included in the which and relied to hold upon the State introduced into was the defendant to evidence. See burden Code, prior Penal were V.T.C.A. Sec. 8.07 and V.T. demonstrate that the convictions Fam.Code, C.A. did evidence to Sec. 54.02. The enhance- void. He not introduce Further, paragraph alleged pen packet support ment as Presid- and the his contention. concurring appellant ing Judge stated in his showed was convicted Onion judg- burglary August, They also S.W.2d “[T]he ments, pen packets were showed date of birth to be 2- sentences and By showing appellant properly appellant 23-67. a was identi- was certified expert fingerprint testi- juvenile at the time of conviction for the fied with them conformity prior mony. held was with offense. appellant allegations the indict- that since the record shows that enhancement juvenile prior a at the time of the ment that the convictions were was pri- a the record does a informations. Once the State made not show giving jur- order ma shifted to transfer the district court facie case the burden appellant, appellant isdiction over the State did not to show that were void because of lack of a waiver of In the instant case the State made a prima the indictment in each case.” facie of a valid by introducing tion into judg- evidence a Hankins, supra, Acosta, Both ment identifying appel- and sentence and dispositive of the issue before lant them. The burden shifted to Appeals’ us. Court of “distinctions” appellant affirmatively show a defect are, of the cases from the instant case as proved which the conviction was void as he *3 out, points “legally meaningless.” the State alleged. showing No The was made. alleging Whether a collateral attack a con properly proved prior State a valid guilt-inno viction is void is voiced at the Hankins, supra. judgment tion. of phase punishment phase cence or at the the of is Court reversed and the change upon party does not the burden the judgment of the trial court is affirmed. conviction, challenging prior the nor the proof necessary prior to show a valid con TEAGUE, Judge, concurring dissent- and viction. Nor does it matter the that chal ing. lenge is made to use of a Acosta, supra, for enhancement as in Although disagree or for I in principle do not purpose impeachment, some other like general cf. with the rules that the author of Hankins, supra. opinion states, nevertheless, majority the I disagree strongly application with the of prima The State establishes a fa- general those broad rules to the facts of cie by case of of a cause, this and the issue that must be introducing copies judgment and sen Therefore, by this Court. I file resolved tence in each case used for enhancement concurring dissenting opinion. this and connecting and them with the defendant. is before issue that us to resolve is Smith v. (Tex.Cr. 683 S.W.2d 393 whether the reasons that the Second Su- Tinney v. App.1984); 578 S.W.2d preme Judicial District Court of (Tex.Cr.App.1979). Acosta, (Port Worth) gave opinion by in majority its 834, Onion, J., concurring. In the in II, Spurlock, Justice Joe for its decision stant case the pen pack State introduced a conviction, reversing appellant’s cor- containing sentence, judgment, et a disagree I am rect. Because unable to fingerprints appel which were connected to reasoning with the that led the court of lant at trial. This evidence indicates the appeals holding appellant’s to its that con- resulting regular sentence is on its face. reversed, viction should be and cannot appellant points out, As the evidence also agree reasoning elementary with the used and, appellant juvenile indicates that was a by majority opinion, the author of the I am thus, a transfer order would have been compelled to dissent. required give the jurisdic district court Acosta, tion. is exactly Contrary majority opinion this like to the of this Smith, supra, Court, is, appeals’ opinion the evi the court of ei- where judgments expressly implicitly, disagree- dence on its face—the and sen ther or not in , principle previously tences—showed convictions based in- ment with the of law Court, if, that with- showing namely, formations and no evidence by waiv down this objection, out properly ers of indictment. Once the State the State introduces into evi- facially judgment dence a judgment introduces a and sentence and valid and sen- them, appellant conviction, identifies presume prior felony we tence of a that is regularity judgments. alleged punishment the The burden for enhancement of defendant, purposes, then shifts to the connects those documents to who must defendant, make any prima an affirmative of defect it has made a the then judgment, in the that the whether be show facie case and the burden shifts to no of disprove validity waiver indictment or no transfer or defendant to the facial of Smith, Acosta, fact, Han- supra; supra; der. judgment the and sentence. kins, supra. slip opinion, of page 5 of its the court

appeals quite made it clear that Appeals clearly it was of pointed out subscribing principle page to that slip opinion law. 4 of its to almost everyone Appellant the how issue arose: appeals What court of the was confront- “pled para not true the enhancement resolving, just ed with as this Court is now graph. the State offered into evi [When with resolving, answering confronted sentence, dence judgment appel question opened whether the State ever objected to the introduction lant] gate to the chute because ‘pen packet’ conviction, record of his objection, gate and not whether had ground] that the conviction was [on opened. been of the majority author objection void. Johnson based such on the opinion Court, contrary to Justice fact that the record did contain Spurlock, erroneously commences his ele- indication had been certified as an analysis mentary assumption with the adult and that the case been had transfer gate open. been Because of juvenile red from court to the district court. objection, gate got lant’s never open. objection Johnson’s was overruled *4 Spurlock Justice implicitly ques- stated the * trial court.” way, gate get tion this “Did the ever ini- appellant, by The objection, clearly his tially open because of objec- judgment raised the issue whether the and appeals tion?” court clearly The of admissible initially sentence were into evi- expressly pages made it clear on 8 and 9 of objection, dence. counsel his When made slip its opinion that one must commence the words, he in saying, many was so that the analysis question in resolving with that the lay predicate State to proper had failed the issue us. before admissibility for the documents’ into evi- answering question, the the court of dence. appeals following the in opinion: stated its opinion majority The that it states is proof burden initial of was on the relying upon this of opinions Court’s Han- State to show that a valid authority kins and Acosta as for its hold- tion ... [initially existed The evidence ] ing. I, however, contrary to the author of by in present introduced the the State opinion, the that majority find it is not satisfy case did not this initial burden. Appeals’ “The of ‘distinctions’ of [initially evidence instead showed ] and Acosta from the instant [Hankins ] a void it conviction because [the State] ‘legally meaningless’ case ... that are it failed [initially to show that the dis- ] majority opinion’s is this Court’s distinc- jurisdiction trict court over Johnson meaningless.” “legally tions that are at the time the was rendered. (On Hankins, supra, motion rehear- carry hold that the State failed to its ing), is the known case of this Court in well initial of that a burden valid aggressive majority which an assertive existed, as the evidence Court, of in this its then “Crusade for [My is insufficient to fact show that ... Justice,” erroneously require- the abolished emphasis.) required requested, ment that where

Perhaps Spurlock if Justice had used the an instruction the law of circumstantial “initially” words “initial” and about ten given jury. be The in- evidence must the in more his times would have by struction abolished the was assertive appeals gave made the reasons the court of aggressive majority this Court of be- why ordering appellant’s as to was it con- cause that of the ludicrous conclusion same jurors from only viction reversed understandable almost “served to distract exam- anyone. ining proper proof as standard of the * Furthermore, pointed but as out that this information became evidence court of appeals, majority opinion, ... states "[The indictment] lant’s trial. unfortunate- [appellant] years Johnson is 17 old and that his ly, part discuss of the court of does not 23, February (Page is date of birth 1967.” 4 of appeals’ opinion. statements, slip opinion.) From these I infer failed to sustain its deliberations,” appellant, not the who of their primary focus proof. burden of at 199. S.W.2d respectfully I dissent. in A side issue was prior convictions from the Com- whether Virginia of were admissible

monwealth stage

against guilt at the the defendant opinion majority This Court’s

his trial.

merely was held that burden the convictions the defendant show majority opinion were void. HURD, Appellant, Lonnie in the does not inform us of what occurred used the trial court when State v. impeachment purposes. It convictions for Texas, Appellee. STATE only appeal contended on was No. 264-86. were inadmissible because of in his reasons that defendant stated Appeals of Court of Criminal appellate the defendant brief. Whether En Banc. attempted that cause ever in the trial court Feb. him, keep impeaching the State from brief, appellate the reasons stated So, opinion.

not reflected because *5 in

what is not stated clearly distinguishable it

makes from what in

occurred the cause at Bar. Acosta, supra, in also

What is stated holding in easily

makes the that case distin-

guishable from the cause at Bar.

There, as set out the de- challenged admissibility

fendant of two

prior felony he sus- convictions that

tained California. basis complaint appeal

for his was that were informations

convictions based

and not indictments. The law now,

then and was and is that a defendant

might on an informa- be tried and convicted indictment, i.e., than an

tion rather has. right indicted right to waive his to be presumption jury. a Grand Given the

that, contrary, unless shown to the Califor- law, the same as Texas it

nia law was that the defendant’s ob-

becomes obvious admitting the

jection to Here, however, merit. we

was without presumption, giv- dealing that unless shown to presumption

en the controls, contrary, Texas law objection should have been sustained.

lant’s above, it should be obvious to

Given State, and anyone that it was the

almost